#### D. R. HUFFINES v. J. I. CASE THRESHING MACHINE COMPANY.

(Filed 4 May, 1910.)

Issues — Immaterial Matters — Narrative—Objections and Exceptions —Evidence Withdrawn — Error Cured.

The issue in this ease being only as to whether the agent of defendant, sent on complaint of plaintiff to remedy defects in a machine purchased by him, had rendered' the machine valueless *523and totally unfit to do satisfactory work, exceptions taken to matters of warranty in tlie original contract, etc., are irrelevant, for suck matters were merely narrative leading up to the cause of action; and admission of improper evidence tending to show a verbal guarantee by the agent at the time of sale was cured by the court’s striking it out and withdrawing it from the consideration of the jury.

Appeal by defendant from G. W. Ward, Jat January Term, 1910, of Guileobd.

Tbe facts are sufficiently stated in tbe opinion of tbe Court.

A. L. Brooks and C. A. Hall for plaintiff.

King & Kimball for defendant.

Clark, C. J.

Tbis is an action to recover $525 wbicb bad been paid as tbe purchase price of a threshing machine bought' of tbe defendant in 1902. In 1904, and again in 1905, on complaint of tbe plaintiff, tbe defendant sent out an agent to correct defects which tbe complaint avers tbe agent was unable to do, and, indeed, that tbe agent sent by tbe defendant in 1905 made many changes in tbe construction .of said machine, tbe result of wbicb rendered it useless and totally unfit to do any satisfactory work. There was evidence to support tbis view of tbe case, and tbe jury, upon proper instructions from tbe court, found a verdict in favor of tbe plaintiff for $325.12. There were a great number of exceptions taken as to tbe matter of tbe warranty in tbe original contract of sale and a breach thereof, and a waiver by tbe plaintiff in not giving notice in tbe stipulated time and retaining tbe machine. But these were irrelevant, as such matters were merely narrative of tbe facts leading up to tbe cause of action stated in tbe complaint, wbicb was for tbe damage done tbe machine by tbe agent sent out in 1905. If there was error in these other respects it was harmless error. Tbe real cause of action was properly submitted to tbe jury.

Tbe admission of improper evidence tending to show a verbal guarantee by tbe agent at tbe time of sale was cured by striking out that evidence and withdrawing it from tbe consideration of tbe jury. Medlin v. Simpson, 144 N. C., 399.

No error.