#### CAVENESS PRODUCE COMPANY v. C. E. WILKINSON.

(Filed 26 November, 1924.)

Pleading's — Issues—Appeal and Error.

Where the purchaser of a carload of potatoes only alleges damages against the seller, due to the bad condition of the potatoes, it may not be successfully contended by the plaintiff that he had been deprived, on the trial, of his position as to grade, etc., by the submission of the issue alone raised by the pleadings.

Stacy, J., dissenting.

Appeal by plaintiff from judgment rendered by Grady, J., at April Term, 1924, of Wake.

Defendant, a farmer, residing in Beaufort County, N. C., sold and shipped to plaintiff, engaged in business as a produce merchant, at Raleigh, N. C., on 25 July, 1922, two hundred barrels of Irish potatoes, grown by him. The car containing the potatoes arrived at Raleigh on 26 July. The potatoes had been resold by plaintiff to a customer at Greensboro, N. C. The car was rebilled at Raleigh to the customer at Greensboro, and arrived there on 1 August. The customer accepted and paid for 125 barrels, and refused to accept 75 barrels, contending that the potatoes refused were rotten and unsalable. The sole ground for such refusal was the condition of the potatoes when they arrived at Greensboro and were delivered to the customer.

The jury having found that the potatoes were in good condition when the. car arrived at Raleigh on 26 July, 1922, judgment was rendered that plaintiff recover nothing of defendant. Plaintiff appealed.

J. M. Broughton for plaintiff.

Armistead J ones <& 8on and W. B. Snow for defendant.

Per Curiam.

Plaintiff complains that the issues submitted by the court did not permit it to present to the jury, nor the jury to pass upon, the vital matters in this action, as alleged in the complaint. A careful reading of the complaint, however, shows that the damages were alleged *643to be due to the condition of the potatoes wben delivered at Greensboro, and not to tbeir failure to grade No. 1. This was also the contention of plaintiff during the trial. The controversy was as to the condition of the potatoes at Raleigh, the plaintiff offering evidence tending to show that the potatoes were in bad condition when they reached Greensboro, on 1 August, and the defendant offering evidence tending to show that they were in good condition when they left Beaufort County, on 25 July. They were not inspected at Raleigh, nor was there any direct testimony as to their condition on the 26th, when the car arrived, or on the 31st, when the car was delivered to plaintiff at Raleigh. Plaintiff rebilled and shipped the car from Raleigh on 31 July, and same was received by the customer at Greensboro on 1 August. The customer made no complaint of the grade of the potatoes, and therefore plaintiff suffered no damages by reason of breach of warranty, if any, as to their grade.

We have examined the other exceptions; and find no error for which a new trial should be ordered. There is

No error.

Stacy, J., dissenting.