#### H. G. POOL, Trading as MODEL LAUNDRY, v. PINEHURST, INCORPORATED.

(Filed 24 May, 1939.)

1. Trial § 22b—

Upon demurrer-, the evidence must be considered in the light most favorable to the plaintiff.

2. Sales § 25 — Evidence held sufficient for jury on issue of worthlessness of article for purpose for which it was sold.

Plaintiff’s evidence tended to show that he purchased a boiler for use in his laundry, that defendant had knowledge of the purpose for which it was bought, that the boiler leaked before the stream pressure reached the necessary level, and that it ivas condemned and its use prohibited by the State authorities. Held: If the article was worthless for the use for which it was intended, and if defendant had knowledge of the purpose for which it was bought, plaintiff would be entitled to recover the purchase price paid and the notes given for the balance of the purchase price on the ground of failure of consideration, irrespective of any warranty, and the evidence, considered in the light most favorable to plaintiff, was sufficient to be submitted to the jury upon the issue.

Appeal by plaintiff from Phillips, J., at February Term, 1939, of Mooee.

Reversed.

The pleadings are susceptible to such interpretation as to make this an action to recover $200 paid and a note for $200 given by the plaintiff to the defendant for a boiler sold and delivered to plaintiff by the defendant, wherein it is alleged in effect that soon after the delivery of the boiler to the plaintiff it was condemned by the State authorities and its use* prohibited, and therefore could not be used for the purpose for which the defendant was informed it was being purchased, or for any other useful purpose, and that said boiler was absolutely worthless when sold and delivered.

*668When tbe plaintiff bad introduced bis evidence and rested bis case tbe defendant moved to dismiss tbe action and for a judgment as in ease of nonsuit, C. S., 567, wbicb motion was allowed. From judgment accordant with tbe motion tbe plaintiff appealed, assigning error.

Seawall & Seawall for plaintiff, appellant.

U. L. Spence for defendant, appellee.

SgheNCK, J.

Tbe evidence wben considered in tbe light most favorable to plaintiff, as it must be upon a demurrer thereto, tends to show that a boiler was sold to tbe plaintiff by tbe defendant for an agreed price of $400, $200 to be paid upon delivery and $200 to be evidenced by note; that tbe payment was made and tbe note delivered; that tbe boiler was turned over to tbe plaintiff at tbe defendant’s place of business in Pinehurst, and hauled by tbe plaintiff 12 miles to bis place of business in Carthage; that as soon as tbe boiler was set up and fired at plaintiff’s place of business, discovery was made that it leaked at a patched place thereon before it reached a pressure of one hundred pounds; that tbe boiler was condemned and its use prohibited by tbe State authorities; that it was never usedT by tbe plaintiff and was incapable of being put to any useful purpose, and was worthless. Tbe evidence further tends to show that tbe plaintiff disclosed to tbe defendant, wbicb operated a laundry in Pinehurst, that be intended to use tbe boiler in bis laundry in Carthage.

If an article “purchased by tbe plaintiff were so defective that it was not reasonably fit for use for wbicb it was intended, then tbe plaintiff would be entitled to recover of tbe seller for want of consideration. . . . It is believed that a covenant, however expressed, must be regarded as nude pact, and not binding in law, if founded solely upon considerations wbicb tbe law bolds altogether insufficient to create a legal obligation. . . . If it (tbe article sold) be of no value to either party, it of course cannot be tbe basis of a sale. . . . Tbe refusal to warrant against worthlessness would fall with tbe balance of tbe supposed contract for want of consideration.” Williams v. Chevrolet Co., 209 N. C., 31, and cases there cited.

We are of tbe opinion, and so bold, that there was sufficient evidence adduced by tbe plaintiff to be submitted to tbe jury upon an issue as to whether tbe boiler sold was worthless to tbe extent that it was not reasonably fit for the purpose for wbicb tbe defendant bad knowledge that it was being purchased by the plaintiff, and for this reason the judgment below is

Reversed.