Armour Fertilizer Works v. Cox

Adams, J. The plaintiff brought suit to recover the remainder alleged to be due on certain notes executed by the defendants for the purchase of fertilizer. The defendants admitted the execution and delivery of the notes but contended they ha.d ordered two tons of soda and had received only one. W. B. Cox testified to this effect, and his Honor instructed the jury if they believed the evidence to return a verdict for the amount of the three notes sued on less a credit of $132.31. This credit included $76.16, the price of the soda which, according to the evidence of the defendants, they had not received. The evidence, however, was not all one way. The contract describes the fertilizer as “5 tons 8-3-3, 4 tons 8-2-2, 2 tons nitrate of soda, 2 tons kainit”; but the defendants offered in evidence the third paragraph of the complaint in which it was alleged that the plaintiff had sold and delivered .to the defendants fourteen tons of fertilizer at the price of $549.79. Moreover, the defendants agreed to examine each bag of fertilizer immediately upon its receipt, to verify the weight, quantity, brand, and tag, and to give the plaintiff immediate notice of failure in either of these respects; and a witness for the plaintiff testified that the defendant ~W. B. Cox in repeated conversations had “never objected to anything respecting the transaction.” The plaintiff contended that although the sale was made in 1921, the defendant’s claim of a deficiency in the shipment was first made after the suit had been brought. ' • Under these circumstances the evidence was susceptible of more than one deduction, and it is fully established that where more than one inference may reasonably be drawn from the entire evidence it is improper *656 for tbe presiding judge to instruct tbe jury to return a verdict for either party “if tbey believe tbe evidence.” Cox v. R. R., 123 N. C., 604, 611; Board of Education v. Makely, 139 N. C., 31, 38; Smith v. Holmes, 167 N. C., 561; S. v. Murphrey, 186 N. C., 113; S. v. Loftin, ibid., 205. For tbe error assigned there must be a New trial.