Caveness Produce Co. v. Wilkinson

Per Curiam.

Plaintiff complains that the issues submitted by the court did not permit it to present to the jury, nor the jury to pass upon, the vital matters in this action, as alleged in the complaint. A careful reading of the complaint, however, shows that the damages were alleged to be due to the condition of the potatoes wben delivered at Greensboro, and not to tbeir failure to grade No. 1. This was also the contention of plaintiff during the trial. The controversy was as to the condition of the potatoes at Raleigh, the plaintiff offering evidence tending to show that the potatoes were in bad condition when they reached Greensboro, on 1 August, and the defendant offering evidence tending to show that they were in good condition when they left Beaufort County, on 25 July. They were not inspected at Raleigh, nor was there any direct testimony as to their condition on the 26th, when the car arrived, or on the 31st, when the car was delivered to plaintiff at Raleigh. Plaintiff rebilled and shipped the car from Raleigh on 31 July, and same was received by the customer at Greensboro on 1 August. The customer made no complaint of the grade of the potatoes, and therefore plaintiff suffered no damages by reason of breach of warranty, if any, as to their grade.

We have examined the other exceptions; and find no error for which a new trial should be ordered. There is

No error.

Stacy, J., dissenting.