Walker v. Hickory Packing Co.

Stacy, C. J. The impression is gained from a careful perusal of the record that the demurrer to the evidence on the first cause of action should, have been sustained, if not for failure to establish actionable negligence on the part of the defendant, then upon the ground of contributory negligence. There is no evidence tending to show how the lard was manufactured, or what caused it to be bad, or when it became rancid. It is in evidence, however, that the lard was “rotten and had an odor like carrion” when used by the plaintiff some time after its purchase, and that the biscuits which he ate “had a rank odor . . . when you pulled them open they knocked you down.” This defeats recovery on the first cause of action. Smith v. Sink, 211 N. C., 725, 192 S. E., 108. It also eliminates the assignment of error addressed to the refusal of the court to require the plaintiff to elect upon which cause of action he would proceed. Craven County v. Investment Co., 201 N. C., 523, 160 S. E., 753; Irvin v. Harris, 182 N. C., 647, 109 S. E., 867; Huggins v. Waters, 167 N. C., 197, 83 S. E., 334; Hawk v. Lumber Co., 145 N. C., 48, 58 S. E., 603; Reynolds v. R. R., 136 N. C., 345, 48 S. E., 765; Davis v. Van Camp Packing Co., 189 Iowa, 775, 176 N. W., 382; 26 C. J., 787. The evidence is sufficient to support a recovery on the second cause of action to the extent of the amount paid for the lard. The action is between the dealer-purchaser and manufacturer-vendor. Thomason v. Ballard & Ballard Co., 208 N. C., 1, 179 S. E., 30; Swift & Co. v. Aydlett, 192 N. C., 330, 135 S. E., 141; Causey v. Davis, 185 N. C., 155, 116 S. E., 401. It results, therefore, that judgment of nonsuit will be entered on the cause of action sounding in tort, and a new trial awarded on the cause of action sounding in contract. Reversed on first cause of action. New trial on second cause of action. Seawell, J., dissents.