#### PEARSALL AND COMPANY v. L. C. EAKINS.

(Filed 1 November, 1922.)

1. Constitutional Law — Statutes—Police Powers — Fertilizers—Analysis— Agricultural Department — Evidence.

Statutes requiring evidence of the analysis of fertilizer, made by a State department, showing a deficiency in tbe ingredients used therein and different from those represented in the warranty of sale, in order to recover for damages to crops caused by their use, are constitutional and valid within the exercise of the police powers of the State. O. S., 4697, and recent amendments thereto.

*2922. Statutes — Fertilizer—Analysis—Agricultural Department — Evidence— Actions — Counterclaims.

In order to recover damages to the crops caused by the use of fertilizer containing a harmful deficiency of its ingredients, contrary to the seller’s warranty, the statute, C. S., 4698, with its recent amendments, requires evidence of its analysis, showing the alleged deficiency, made by the State Agricultural Department, and whether sold upon a special contract, not waiving the benefit of the statute, or under the protection of the statute alone, such evidence is essential to defendant’s recovery upon a counterclaim set up by him in plaintiff’s action upon the note for the purchase price.

Appeal by defendant from Bond,, J., at February Term, 1922, of New HaNover.

This was an action brought by tbe plaintiff for tbe recovery of a certain sum of money due by contract, and secured by a crop lien, executed by tbe defendant to tbe plaintiff, for tbe purchase of certain fertilizers.

Tbe defendant admitted tbe purchase of tbe fertilizers and tbe execution of tbe contract, and that same bad not been satisfied, but defendant set up a counterclaim for damages to bis crops, alleging that tbe fertilizer did not come up to tbe guaranteed analysis, and that it bad borax in it, and that borax was deleterious to crops, and by tbe use of tbe fertilizer containing this borax bis crops were damaged in a certain amount.

Tbe plaintiffs replied, pleading noncompliance with C. S., 4697, as a necessary prerequisite to asserting tbe counterclaim against plaintiffs.

Tbe plaintiffs offered in evidence tbe admissions of tbe defendant, as stated in tbe defendant’s brief, and in addition to that, offered in evidence tbe fourth paragraph of tbe answer, which states “that no part of tbe indebtedness on tbe note bad been paid.” So there was no substantial dispute between tbe parties, as to tbe liability of tbe defendant to plaintiff, and tbe amount thereof, unless defendant was entitled to recover on bis counterclaim.

In his effort to prove tbe counterclaim, defendant went on tbe stand and told about tbe crop that be contemplated planting, offering to testify as to some conversation be bad with Mr. Pearsall, a member of tbe plaintiff’s firm. This was objected to by plaintiff, and ruled out by tbe court on tbe ground that tbe defendant was not suing in bis counterclaim upon a special contract, but only on tbe contract implied by law, which was based upon tbe analysis printed upon tbe bags, as required by tbe statute. Defendant-thereupon admitted that be bad no evidence to show that any samples bad ever been drawn, in accordance with tbe statute (C. S., 4697), and that be bad no evidence that tbe chemist of tbe Department of Agriculture bad ever analyzed any samples drawn, *293as required by law, which showed borax or other deleterious ingredients. In fact, he admitted that the requirements of C. S., 4697, had not been complied with at all, although “the action was a suit for damages from results of use of fertilizers.” Thereupon, counsel for plaintiff moved to nonsuit defendant upon his counterclaim, which was granted, and moved for judgment on the note, or contract, which was not resisted, and was also granted. Defendant appealed.

Rountree & Carr for plaintiff.

Herbert McClammy, E. Croswell Robinson, and K. 0. Burgwin for defendant..

Walker, J.

The only question, as it seems to us, except as stated, which is presented to the Court for decision in this case is whether the cross-action on the counterclaim can be brought when it is admitted that the provisions of C. S., 4697, were in no respect complied with. We understand the defendant to virtually admit that to be the only question, and he insists that under the case of Tomlinson v. Morgan, 166 N. C., 557, such an action is maintainable.

We deem it sufficient to say that since that case was decided, the Legislature has changed the statute, and for the express purpose of requiring the Department of Agriculture, its officers and agents, as directed thereby, to furnish the testimony, or at least an important and essential part of it, upon which actions for injuries to crops by the use of fertilizers can be brought and successfully maintained, and failing in this respect, that no such action can be sustained. This was for the purpose of placing the responsibility for ascertaining the truth as to the contents of the fertilizer in the hands of the highest authority in the State — the Agricultural Department, which acts under expert guidance.

This statute is the last declaration of the legislative body as to the requirements necessary before a suit may be maintained for damages due to defective or deficient fertilizers, and, for the purpose of showing this, it would be more accurate to quote from the statute as follows: “Provided, that no suit for damages from results of use of fertilizer may be brought except after. chemical analysis showing deficiency of ingredients, unless it shall appear to the Department of Agriculture that the manufacturer of said fertilizer in question has, in the manufacture of other goods offered in this State during such season, employed such ingredients as are outlawed by the provisions of this article, or unless it shall appear to the department of agriculture that the manufacturer of such fertilizer has offered for sale during that season any kind of dishonest or fraudulent goods.”

*294We think no one will dispute the power of the Legislature to enact this statute, in the exercise of its police power, or to say under what conditions the courts of the State may be used for the purpose of litigation. The wording is plain and the requirements have not been complied with. No samples were taken of these fertilizers, as required by law, and no analysis by the chemist of the Department of Agriculture was ever made, and no attempt was made to prove, nor any offer to show that it was brought to the knowledge of the Department of Agriculture that the manufacturer of said fertilizer has offered, during the season, other outlawed or dishonest or fraudulent goods.

Plaintiffs rely upon the recent case of Fertilizer Co. v. Thomas, 181 N. C., 274, and defendant’s counsel attempt to distinguish that case upon the grounds that there was a special contract, and that there was an analysis which showed that the fertilizer did not contain borax. As we read the Thomas.case, supra, the decision is put squarely upon the terms of the statute, C. S., 4697, although the decision could also have been sustained upon the terms of the special contract, if that was not impliedly done. In fact, it has been held by this Court that, in the absence of a special contract, the parties must look for their rights in such cases to the terms of said statute. Fertilizer Works v. Aiken, 175 N. C., 398.

Defendant has directed our attention to the case of Patterson v. Orangeburg Fertilizer Company, 108 S. E. (S. C.), 401. It is sufficient to say that apparently there was no such statute in South Carolina as the one relied upon herein, and the decision of that case, as we understand it, was based upon principles of the common law, and really has no proper application to this one, which must necessarily be determined by a consideration and construction of our statute bearing upon the subject involved. That case, though, seems to accord generally with our former decisions upon the liability of the seller of fertilizers for deficiency therein which causes loss or injury to crops resulting from their use. Carter v. McGill, 168 N. C., 507 (S. c., 171 N. C., 775). See, also, Guano Co. v. Livestock Co., 168 N. C., 442.

The present case may well be decided upon the admissions of the defendant and the uncontested facts. Defendant has not complied with the provisions of the statute, which expressly forbids “any suit for damages resulting from the use of a fertilizer except after chemical analysis showing deficiency of ingredients, unless,” etc., and defendant has not brought his case within the terms of this last or qualifying clause or proviso by proving, or offering to prove, the facts therein required to appear, in order to take his case out of the terms of the first clause or proviso. If there was a deficiency, in that borax was substituted for potash, the former being a deleterious substance and injurious to crops, the defendant should have proved first the analysis *295showing tbe deficiency, under tbe clear terms of tbe statute, because it is provided thereby that no suit for damages resulting from tbe use of tbe fertilizer may be brought until tbe analysis is made, and shows tbe deficiency of ingredients.

Tbe evidence sought to be introduced was properly rejected, and was so manifestly incompetent and irrelevant, under tbe pleadings and pertinent issues, as to require no discussion of it.

No error.