#### M. P. HUBBARD & CO. v. J. A. GOODWIN.

(Filed March 6, 1918.)

1. Vendor and Purchaser — Warranty—Breach—Voluntary Rebate — Instructions — Appeal and Error — Harmless Error.

Where defendant sets up breach of warranty as a counterclaim in an action on notes he had given for fertilizer, which he had sold to others, he may not recover for a voluntary rebate he had made, which he was not compelled to give; and were it otherwise, a charge to that effect is harmless when there is no evidence that such rebate was actually allowed his customer by him.

:2. Vendor and Purchaser — Warranty—Breach—Fertilizer—Damages—Instructions.

Where a vendor of fertilizer allows a customer a reduction in price on account of grade inferior to that of warranty to himself by his vendor, an instruction is not erroneous that, to establish such as a counterclaim in the manufacturer’s action for the purchase price, the jury should “find by clear and satisfactory evidence,” that the warranty of the plaintiff was identical with that made by the defendant as to quality and results, of the adaptability of the land to the crops, proper tillage, and propitious seasons, etc.,' and the use of the words “clear and satisfactory evidence” was not an expression of opinion forbidden by the statute.

■'3. Courts — Intimation of Opinion — Instructions — Statutes — “Strong Evidence.”

In an action to recover the purchase price of fertilizer, evidenced by notes, the defendant set up a counterclaim for damages for breach of warranty,. upon which there was uncontradicted evidence that the defendant in giving the notes 'told the plaintiff that his crops were as good as ever, and solicited the agency for the coming year: 3 eld, an instruction from the court, after placing the burden of proof oñ-plaintiff, that the jury may consider, if they so found the facts, this as strong evidence that defendant’s counterclaim was not well founded, is not an expression of opinion forbidden by the statute.

Civil actioN, tried before Whedbee, J., at October Term, 1917, of HERTFORD, upon these issues:

*1751. In wbat amount is the defendant indebted to tbe plaintiff on account of tbe execution of tbe two notes declared on in tbe complaint? Answer: “$500.12, witb 6 per cent interest from 1 January, 1916, and tbe further sum of $486.30, witb 6 per cent interest from 15 January, 1916.” (Answered by consent.)

2. Has there been a breach of tbe contract of sale of tbe guano by tbe plaintiff, as alleged in tbe answer and counterclaim? Answer: “No.”

3. Has defendant Godwin been damaged by said breach, if any, and in wbat sum? Answer: “Nothing.”

From the judgment rendered defendant appealed.

Winborne & Winborne, and W. W. Rogers for plaintiff.

R. G. Bridger, Winston & Matthews, and John E. Vann for defendant.

BeowN, J.

Tbe defendant executed tbe notes sued on for tbe purchase ■of certain guano for use on bis own crops and for sale to others. He admits tbe execution of tbe notes and pleads a counterclaim alleging that tbe guano was worthless, did not come up to tbe representations of plaintiff’s agent, and failed to produce crops which tbe agent guaranteed it would produce. Defendant also avers that be sold some of tbe guano to others giving guarantees and that be has not been able to collect tbe price owing to tbe worthlessness of tbe guano.

There is much evidence tending to support tbe contentions of both parties which it is unnecessary to set out.

Tbe four exceptions to the evidence are without merit and need not be discussed.

Tbe defendant excepts to this instruction: “That if you find from tbe ■evidence that defendant allowed rebate in tbe price of tbe fertilizer sold before be was compelled to do so in law, be cannot recover for that; a mere voluntary abatement in price will not entitle tbe defendant to recover.”

We see no error in this. A voluntary abatement in price by tbe defendant when be was not compelled to do so would not entitle him to recover on bis counterclaim. Britton v. Ruffin, 122 N. C., 114; Reiger v. Worth, 127 N. C., 233.

Besides, tbe charge is harmless. Tbe evidence fails to disclose that defendant refunded anything to bis purchasers or made rebate to any one in consequence of tbe defective quality of tbe guano. There is evidence that defendant stated to some of bis purchasers that be would give them tbe same rebate be received from plaintiffs, but no evidence that be did so.

Tbe defendant excepts to this instruction: “That if you find by tbe greater weight of tbe evidence that tbe defendant sold any of said fértil-*176izer to customer and be made reduction in price on account of tbeir complaints tbat tbe fertilizer was off in quality, before you can allow defendant any damages for tbat, you must first find by clear and satisfactory evidence tbat Godwin made tbe same warranty as to quality and results as were made by tbe plaintiff to bim, tbat tbe land was adapted to tbe growth of tbe crops, tbat tbe land was properly tilled and cultivated, and tbat tbe weather or seasons were propitious, and tbat tbe shortage in tbe crops was due directly to tbe worthlessness of tbe fertilizer.”

Tbe exception cannot be sustained, first, for tbe reasons given above tbat there is no evidence defendant refunded anything or made rebate in price, although there is evidence tbat be promised to do so, and therefore, tbe instruction is harmless; second, tbe words “Clear and satisfactory proof” do not constitute an expression of opinion. All evidence should be clear and satisfactory to tbe minds and comprehension of jurors. If it is not satisfactory, or its value comprehended by them,, they should not act upon it.”

Tbe defendant excepts to tbe following instruction as an unwarranted expression of opinion upon the facts: “Tbat if you find from tbe greater weight of tbe evidence tbat Godwin at tbe time be gave tbe notes, stated to tbe witness Loud, vice-president of tbe plaintiff, tbat tbe guano was good and bis crops as fine as be ever bad, you may consider this as strong evidence tbat bis counter-claim is not well founded.”

Tbe evidence of Loud, vice-president of tbe plaintiff, was to tbe effect tbat defendant, in August, 1915, stated tbat tbe guano was all right, that bis crops were as good as be ever bad, tbat be wished the witness could see them, and gave his notes for tbe price of tbe guano, and applied for tbe agency to sell tbe guano to farmers in Eastern North Carolina tbe next season, etc. This was not denied by defendant.

We do not regard this as an expression of opinion by tbe trial judge upon tbe facts submitted to tbe jury. Tbe issue related to tbe bona fides of defendant’s counterclaim. The fact in dispute was tbe declarations and admissions of defendant to Loud. Upon tbat tbe judge expressed no opinion. He left tbat to tbe decision of the jury, and put the burden of proof upon plaintiff to satisfy the jury by the clear weight of the evidence that such admissions were made, telling the jury that if they were actually made such fact is strong evidence of a want of merit in the counter-claim.

We see nothing wrong in that. If such declarations were made before tbe action was commenced and after tbe crops had matured, and then this counterclaim was pleaded, the conclusion naturally follows that there is no merit in defendant’s plea and tbat it is a mere subterfuge to avoid payment of an honest debt. We find precedents in our reports *177where certain testimony, if 'believed to be true, is declared to be strong evidence of the fact sought to be proved.

In Mauney v. Hamilton, 132 N. C., 299, this Court said: “As his Honor very properly said to the jury, this testimony is very strong evidence of the fact sought to be proved.” There are other cases in which the expression “strong evidence” is used by this Court. Admissions of a party to an action, when fully established, are always regarded as strong evidence of the facts stated in them.

The written evidence of a contract is strong evidence that it truly embodies the agreement of the parties. Wiles v. Harshaw, 43 N. C., 308.

In construing the charge of a trial judge, we will consider the entire charge and not isolated sections.

Taking the instructions of the judge as a whole, they fully, clearly and impartially presented to the jury the contentions of the parties and the law bearing thereon.

No error.