#### L. W. POOVEY v. INTERNATIONAL SUGAR FEED NUMBER TWO COMPANY.

(Filed 12 May, 1926.)

1. Health — Pood—Cattle—Sales—Implied Warranty.

The implied warranty that food stuff sold for human consumption carries an implied warranty that it is wholesome and not deleterious, does not apply to a sale thereof for cattle, unaided by statute.

2. Same — Statutes.

Under the provisions of our statute, C. S., 4721, 4726, 4731, there is an implied warranty that foodstuff sold for cattle is reasonably fit for the purposes intended, and that it is not composed of harmful or deleterious substances that will produce injury or death to the cattle fed therewith.

3. Same — Evidence—Nonsuit.

Evidence to show an implied warranty that foodstuff sold to plaintiff was not harmful for cattle; that he had fed this with other foodstuff to his cattle, and some died of ptomaine poison, together with evidence of a chemical analysis by the State chemist showing that the foodstuff complained of was harmless, etc.: Helé insufficient to be submitted to the jury upon the issue.

Civil actioN before Lane, J., at January Term, 1926, of Catawba.

Tbe plaintiff is tbe owner of a berd of dairy cattle at Hickory, N. C., and tbe defendant is engaged in tbe business of manufacturing and sell*723ing dairy feeds. Tbe plaintiff bad been purchasing tbis same brand of feed from tbe defendant for about eighteen months prior to December, 1925, and bad been feeding it to bis cattle. He ordered a car of feed from defendant, which arrived at Hickory on or about 5 December, 1924. He testified that at tbe time of tbe arrival tbe “appearance of tbe feed did not appear like tbe stuff I bad been getting. Tbe bags were dirty and dusty. I have never bad a shipment of that appearance before. Tbe bags bad been cleaned and seemed to leave a little grease on tbe side of tbe car, but was all dusty and sifted out all over tbe car.”

Tbe plaintiff accepted tbe feed, paid tbe draft, and took it out to bis dairy barn. He then wrote a letter to tbe defendant, sending a sample of the feed, and tbe defendant, in reply thereto, stated that its chemist bad examined tbe feed and there was nothing wrong with it, but that they bad made a change in tbe feed by changing tbe formula in one ingredient, and bad substituted therefor another which was of greater feed value, and that be could go ahead and use it. Tbe plaintiff began feeding from tbis shipment to bis cows at tbe dry barn, and also fed them some “wheat straw and some roughness.” Tbe feed was given to all of bis cattle.

Plaintiff testified as follows: “I began feeding it to my cattle just as soon as I beard from tbis company. I haven’t tbe letter. I suppose in about five days — that would be about 15 or 16 December when I began feeding it. It was some time tbe last of December or first of January when I noticed tbe cattle showing symptoms of sickness.” Dr. E. J. McCoy, veterinary surgeon, was called in to treat plaintiff’s cattle some time in January, 1925, and diagnosed tbe disease as ptomaine poisoning. He further testified that “we usually notice tbe symptoms develop rapidly, while I think tbe time would depend on tbe amount of poisoning. It is generally violent in a little while after we notice tbe symptoms. I have never seen ptomaine poisoning demoralize tbe nerves that control tbe diaphragm before. I can’t account for it any other way. I can’t say whether it was that or not. It was unusual following.vtbat trouble. I never knew of that particular symptom in a case of ptomaine. Ptomaine is brought on by some poison either in food or drink, but it is usually in tbe eating.”

Two of plaintiff’s cows died and some of tbe others became sick, and tbis suit was brought to recover for tbe value of tbe cows that' died.

Tbe agent of tbe defendant, at tbe time of tbe death of tbe cows, took up tbe remaining feed of tbe shipment and stored it in tbe city market of Hickory, and requested tbe Department of Agriculture of North Carolina to have tbe feed inspector for tbe State inspect it.

Tbe inspector for tbe State testified as follows: “I made a physical examination of tbe bags and found it in very good condition. It was *724wholesome and sweet, no moisture or mould to it at all that I could detect. Thereafter the feed was subjected to a chemical analysis by the feed chemist in the Department of Agriculture of North Carolina, and the analysis of the feed showed that there was no poisonous or deleterious matter in it, and that the substances actually found by chemical analysis were entirely all right and not injurious to cattle. The analysis agreed with the analysis on the tag attached to the bag by the manufacturer.” There was evidence tending to show that the neighbors of the plaintiff had purchased some of this feed and that their cows had become sick, though none died. There was also evidence to show that other neighbors had purchased feed from this particular car and fed it to their cattle with, no injurious effects whatever.

There was a verdict in favor of plaintiff and judgment thereon, from which the defendant appealed.

E. B. Gline for plaintiff.

Thomas P. Pruitt, Self & Bagby, W. L. Marshall for defendant.

Brogden, J.

The merit of this ease involves two questions:

(1) Is there an implied warranty in the sale of feed for cattle and the nature thereof?

(2) Is there sufficient evidence of a breach thereof to be submitted to a jury?

“The authorities are numerous that there is an implied warranty that runs with the sale of food for human consumption, that it is fit for food- and is not dangerous and deleterious.” Ward v. Sea Food Co., 171 N. C., 33.

However, it has been held that this principle does not apply to sales of feed for cattle. For instance, in Lukens v. Freiund, 27 Kan., 664, the late Justice Brewer reasoned thus: “Upon what ground is an implied warranty rested in the case of the sale of provisions, which does not exist in the case of a sale of other articles ? Obviously it is not upon any property grounds, or because thereby the estate of either party is affected; but for reasons of public policy, for the preservation of life and health, the law deems it wise that he who engages in the business of selling provisions for domestic use should himself examine and know their fitness for such use, and be liable for a lack of such knowledge. . . . Kegard for human life compels this. If the preservation of human life and health be, as we think it is, the foundation of this exception, then it should not be extended to cases in which human life and health are in no wise endangered.”

*725Tbe Luken’s case grew out of tbe fact tbat a farmer bought a sack of bran. In some way two copper clasps bad gotten in tbe sack of bran. One of plaintiff’s cows swallowed tbe clasps which poisoned and killed her.

Tbe identical principle is held to be tbe law in Dulaney et al. v. Jones, 100 Miss., 835: “It is argued'with much ability, by tbe appellees, tbat an implied warranty of soundness arises only in eases where tbe food sold is for human consumption. After a careful consideration of tbe question, our conclusion is tbat, according to tbe weight of authority in this country, there is an implied warranty of soundness in tbe case of tbe sale of provisions intended for human food, but with food for other purposes there is no implied warranty of soundness. This is put upon tbe grounds of public policy, tbe controlling reason being tbe regard for human life and for human health.”

Tbe facts in tbe Dulaney case, supra, were tbat tbe plaintiff sold certain feed stuff for tbe defendant’s mules, and tbat said feed stuff was decayed, rotten, unfit and unwholesome, causing sickness among tbe mules and tbe death of six of them. National Oil Co. v. Young, 85 S. W., 92 (cows killed by eating cotton-seed bulls containing nails and pieces of wire); Newell v. Reid, 189 Mich., 174 (cows killed by eating bran which contained arsenic); Coyle v. Baum, 3 Okla., 695; Houk v. Byrd, 105 S. W., 1176; Piper Co. v. Oppenheimer, 158 S. W., 777, L. R. A., 1917-F-475; Ann. Cas., 1918-B, 24 R. C. L., 469.

We think tbat tbe correct rule of liability governing such cases is thus expressed in tbe case of Swift & Co. v. Redhead, 122 N. W., 140 (Iowa), which involved a sale of cattle feed: “Tbe jury might well have found tbat tbe purchase of tbe blood meal for a particular use known to tbe seller, and for which tbe latter assured tbe buyer it was suitable, and tbat tbe buyer relied thereon, and, if so, this amounted to a warranty tbat tbe article in question was reasonably fit for tbe use both contemplated.” Reiger v. Worth, 130 N. C., 268; Ashford v. Shrader, 167 N. C., 45; Grocery Co. v. Vernoy, 167 N. C., 427; Furniture Co. v. Mfg. Co., 169 N. C., 41; Register Co. v. Bradshaw, 174 N. C., 414; Farquehar Co. v. Hardware Co., 174 N. C., 369; Swift v. Etheridge, 190 N. C., 162.

In addition to tbe implied warranty growing out of such sales, there is also a statutory warranty created by tbe provisions of C. S., 4724-4726-4731. So that a seller of “commercial feeding stuffs,” as defined by law, must supply a product reasonably fit for tbe use contemplated by tbe parties, and also such a product as will measure up to tbe requirements of tbe statute.

Therefore, tbe rules of liability in such cases having been established, tbe vital question to be considered is whether or not, in this particular *726case, there was sufficient evidence of a breach of the implied or statutory warranty. The evidence tends to show that in this particular case there were about 400 bags of feed; that plaintiff sold a large portion of the feed to other cattle men, who fed it to their cattle. Some of the cattle in some of the herds, after feeding, showed signs of sickness. In other herds no ill effect was discovered. The plaintiff testified that he began feeding his herd, consisting of about forty head of cattle, about the 15th or 16th day of December, and fed it to all of his cattle. He also testified: “It was some time the last of December or the first of January when I first noticed the cattle showing symptoms of sickness. I can’t tell you the exact date.” He further testified, referring to the two cows that died, “I also fed them some wheat straw and some roughness.” After the cows died the feed then remaining was taken up by the defendant and examined by the feed inspector of the Department of Agriculture of North Carolina. He testified that he found nothing wrong with the bags or with the feed, and that “the analysis agreed with the analysis on the tag.” Thereafter a chemical analysis was made and the result thereof described by the witness as follows: “I did not find any poison or deleterious matter in it. As far as the chemical analysis goes the substances that I actually found were entirely all right. I did not find anything that has been found to be injurious to cattle.”

The conclusion from the testimony is irresistible that the only evidence of a breach of warranty was the fact that after feeding the product for ten days or more two of plaintiff’s cows died from what was diagnosed as ptomaine poisoning. No analysis of the stomach of the dead cows was made, and it appears from the record that the particular cows that died were also fed with “wheat straw and roughness.” The mere sickness and death of the cows is not sufficient evidence in itself to establish a prima facie case of breach of warranty. The doctrine of "res ipsa loquitur’’’ does not apply to a breach of warranty. Oregon Auto-Dispatch v. Portland Cordage Co., 95 Pac., 499.

There is no more reason to conclude that the cows died from this particular feed than that there was some deleterious or injurious substance in the “wheat straw or roughness” that was fed to them at the same time. “The rule is well settled that if there be no evidence, or if the evidence be so slight as not reasonably to warrant the inference of the fact in issue or furnish more than materials for a mere conjecture, the Court will not leave the issue to be passed on by the jury.” Brown v. Kinsey, 81 N. C., 244; Liquor Co. v. Johnson, 161 N. C., 77; S. v. Prince, 182 N. C., 790; S. v. Martin, ante, 404. This rule is both just and sound. Any other interpretation of the law would unloose a jury to wander aimlessly in the fields of speculation.

*727¥e bold, therefore, that the evidence of the breach of warranty was not sufficient to be submitted to the jury, and that the motion for non-suit should have been allowed.

We are not inadvertent to the contention of the plaintiff that the letter written by the defendant, after the feed had been delivered, advising “there was nothing wrong with the feed ... go ahead and feed it,” constituted an express warranty. Conceding that this amounted to a warranty, it was not made contemporaneously with the sale, and there was neither allegation nor proof of a consideration to support it. Hence, such a contention is not available in this case. Underwood v. Car Co., 166 N. C., 458.

Error.