Armour Fertilizer Works v. McLawhorn
| Decision Date | 28 February 1912 |
| Citation | 73 S.E. 883,158 N.C. 274 |
| Parties | ARMOUR FERTILIZER WORKS v. McLAWHORN. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Pitt County; Carter, Judge.
Action by Armour Fertilizer Works against Charles McLawhorn. Judgment for plaintiff, and defendant appeals. Affirmed.
F. G James & Son, F. C. Harding, and Albion Dunn, for appellant.
L. I Moore and Harry Skinner, for appellee.
Under a written contract with the defendant as a del credere agent the plaintiff shipped him certain fertilizers at prices specified in said contract, which the answer admits that he duly received. The defendant used a portion of these fertilizers himself, sold some to his tenants, and a large portion to other persons. For nearly all that which he sold he has collected payment, except from his relatives, who are solvent. The fertilizers were analyzed by the Agricultural Department at the request of the defendant, and a small deficiency in quality found, for which the defendant has received the proper abatement in price.
The defendant assigns 24 errors, but in his brief abandons the first 5, and groups the other assignments into 4 classes. The first class, consisting of the sixth, nineteenth, and twentieth assignments of error, is to the holding of the judge upon the pleadings that no defense was open to the defendant, except to show total failure of consideration. The deficiency in value was allowed him in abatement of price. The claim of consequential damages resulting in the alleged shortage in his crop was properly disallowed by the court. Carson v. Bunting, 154 N.C. 532, 70 S.E. 923, where the court holds that the measure of damages is in the abatement of the price, as is also provided by Revisal 1905, § 3949.
Assignments of error 8, 9, 10, and 11 are to the refusal of the judge to allow defendant to prove, on the question of damages, the difference in the looks and nature of crops on different farms on which this fertilizer was used and the crops under which he used other fertilizers. This is essentially the same point as one above discussed. To consider the variety of soil and attendant circumstances would be purely speculative. The only pertinency of such evidence would be the inference that the ingredients were not as represented. This would be too remote, depending upon the nature of soil, weather cultivation, and the like. The best evidence is the analysis by the Agricultural Department. When the defendant ascertained therefrom the deficiency in the quality of the fertilizers, it was his duty to have bought fertilizing materials or ingredients to make good the deficiency. Not having done so, he can properly claim...
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