(Filed 24 November, 1915.)
Contracts — Warranty—Breach—Pleading's—Evidence—Variance.
Where the defendants set up a breach of warranty in an action upon contract to deliver a certain number of pounds of “14 single cotton warps” at a certain price per pound, and there is no evidence of express warranty, and the defendant admits the delivery and use of the “warps,” evidence only tending to show unskilled workmanship in the manufacture of the “warps” and defects in their quality, without claim that they were worthless, does not support the allegation in the answer, and the counterclaim will be disallowed as a matter of law. Robinson v. Suff-stetler, 165 N. C., 459, cited and applied.
Appeal by defendant from Lyon, Jat May Term, 1914, of Guilpoed.
Action to recover tbe purchase price of certain cotton warps sold by tbe plaintiffs to the defendant, in which tbe defendant sets up a counterclaim on account of an alleged breach of warranty.
Tbe warranty alleged in tbe answer is as follows: “That tbe plaintiff and tbe defendant entered into a contract on or about 13 December, 1913, by which tbe plaintiff was to deliver to tbe defendants at Glen Raven, their factory near Elon College in Alamance County, in tbe State of North Carolina, 50,000 ¡oounds of 14 single cotton warps at 21% cents per pound; that tbe said cotton warps were to be delivered to tbe defendants in installments.”
There was evidence on tbe part of tbe defendant of unskillful workmanship in tbe manufacture of tbe warps, and of defects in their quality, but no evidence that they were not “14 single cotton warps” or that they were worthless.
Tbe defendant used tbe warps from time to time and paid for all except the last shipment.
*671Tbe jury • answered tbe issue on tbe counterclaim in favor of tbe defendant, and bis Honor set aside tbe finding as matter of law, and rendered tbe following judgment:
Tbi.s cause coming on to be beard' at tbe May Term, 1915, of tbe Superior Court of Guilford County, before bis Honor, 0. 0. Lyon, judge, and a jury, and being beard,, and tbe jury having answered tbe issues submitted as follows:
1. Is tbe defendant indebted to plaintiff? If so, in wbat amount? Answer: “Yes; $411.31, with interest from 28 February, 1914.”
2. Is tbe plaintiff indebted to tbe defendant on counterclaim? If so, in wbat amount? Answer: “$225.”
On motion of counsel for plaintiff, tbe court set aside tbe jury’s finding as to tbe second issue, on tbe ground tbat tbe pleadings and evidence were not sufficient to support a breach of warranty, and rendered judgment for plaintiff on tbe first issue, as follows: It is hereby ordered, adjudged, and decreed tbat tbe plaintiff, tbe Fitzgerald Cotton Mills, recover judgment of tbe defendant, tbe Holt, Gant & Holt Cotton Manufacturing Company, in tbe sum of $411.31, with interest thereon from 28 February, 1914, and for tbe costs of this action, to be taxed by tbe clerk. 0. 0. LyoN,
Judqe Presiding.
mi ■, £ j , , , , , , Ibe defendant excepted and appealed.
Alfred 8. Wyllie for plaintiff.
John A. Barringer for defendant.
The evidence offered by tbe defendant tending to prove a breach of warranty does not support tbe allegations of tbe answer, in which it is not alleged tbat there was a breach of warranty as to workmanship or quality, and as tbe defendant used tbe warps, tbe case is controlled by Parker v. Fenwick, 138 N. C., 209, and Robinson v. Huffstetler, 165 N. C., 459.
No error.