Harris v. Canady

73 S.E.2d 559 (1952)

236 N.C. 613

HARRIS v. CANADY.

No. 598.

Supreme Court of North Carolina.

December 10, 1952.

*560 Clayton C. Holmes, Wilmington, for defendant, appellant.

DEVIN, Chief Justice.

The defendant noted exceptions to portions of the judge's charge to the jury, and assigns error in the manner in which the case was submitted to the jury as tending to confuse the issues. He contends that as a result defendant's counterclaim was not understood and properly considered by the jury.

We think the jury should have been instructed to answer the issue addressed to the plaintiff's cause of action in the amount of $350 and interest, and that then the evidence pertaining to the defendant's counterclaim for damages should have been correlated and under proper instructions submitted to the jury to be applied to issues of warranty, breach of warranty and damage.

However, there was no exception to the issues as submitted, and the court properly instructed the jury if they found the plaintiff warranted the meat box as alleged, and that there was a breach of such warranty, the measure of damages would be the difference between the value of the meat box as warranted and its value in the condition in which it was delivered, plus expense incurred in efforts to repair, and loss of meat resulting from the condition of the box when attempt was made to use it.

Under the court's charge the jury has determined the amount of damages which the defendant is entitled to have for breach of warranty and this amount has been applied to the reduction of the amount due on the note. Hence we do not perceive that harm has resulted to the defendant *561 from the manner in which the case was submitted to the triers of the fact.

The result will not be disturbed.

No error.

PARKER, J., took no part in the consideration or decision of this case