#### R. F. BUTT v. W. C. MOORE.

(Filed 15 March, 1922.)

Evidence — Separate . Causes of Action — New Trial as to One Cause— Appeal and Error.

Upon allegation of two causes of action for breach of contract, one, the defendant’s liability to pay the plaintiff the agreed price for grading tobacco, and the other the defendant’s failure to furnish fertilizer as agreed: Held, the evidence in this case was sufficient to be submitted to the jury upon the second cause of action; and the jury having answered in the defendant’s favor in the first cause, a new trial is awarded on the plaintiff’s appeal, on his alleged second cause of action alone.

Appeal by plaintiff from Lyon, J., at August Term, 1921, of Pitt.

Civil action to recover damages for an alleged breach of contract. The-plaintiff complained that he was a tenant on the farm of the defendant for the year 1916, and that he entered into an agreement or contract with the defendant whereby the said defendant agreed to pay for one-half of all tobacco grading, and to furnish the said plaintiff 300 pounds of fertilizer to the acre of cotton and corn, and alleges that the defendant failed and refused to pay for one-half of the tobacco grading, which was $21; also failed to furnish the amount of fertilizer agreed upon in said contract, whereby the plaintiff suffered a loss of $21.60.

*159Tbe court submitted to tbe jury tbe question of grading tbe tobacco, but declined to allow them to consider tbe alleged shortage- and failure to furnish tbe full amount of fertilizer.

There was a verdict and judgment in favor of tbe defendant; plaintiff appealed.

Julius Brown for plaintiff.

F. G. James & Son for defendant.

Stacy, J.

Tbe plaintiff set up two causes of action: one for failure to pay one-balf of tbe cost of grading tbe tobacco; and tbe other for failure to furnish tbe amount of fertilizer as agreed'upon between tbe parties. His Honor declined to submit tbe second cause of action to tbe jury. In this we think there was error. True, tbe evidence of tbe plaintiff is not very satisfactory on this phase of tbe case — and that of tbe defendant quite positive — but we think it was sufficient to require its submission to tbe jury.

As we find no error in tbe trial of tbe first cause of action, tbe new trial will be limited to tbe second phase of tbe case.

Partial new trial.