WALKER, J., after stating the case:
This case is not exactly like any other one we have had before us upon this and kindred subjects. The only question we will discuss in this appeal is whether the defendant offered any competent evidence of a breach of the warranty that the fertilizer should be of "the standard grade," and we think he did. It may not have been very full or explicit, but we cannot say that there was no evidence. It is not necessary, in order to prove this fact, that there should be a chemical analysis of the fertilizer. This is, perhaps, the best way of establishing the fact, but not the only one. The purchaser of the (510) fertilizer may show a breach by the effect of the use of it upon his crops, provided he first lays the foundation for such proof by showing that it was used under conditions favorable to a correct test of its value, such as land adapted to the growth of the cotton, proper cultivation and tillage, propitious weather or seasons, the general purpose being to exclude any element which would render the evidence uncertain as to the cause of the loss or diminution of the crop or rid it of its speculative character. It may be somewhat difficult in practice to apply the rule, but it can be done by proper attention to the limitations on this kind of evidence, and we have so held in Guano Co. v. Live Stock Co., ante, 442. We have allowed somewhat similar evidence to be considered in the case of flooding lands. Spencer v. Hamilton, 113 N.C. 49; and this Court, in Herring v. Armwood, 130 N.C. 177, recognized that such evidence might be stripped of its conjectural features and made available as legal proof of the fact that the loss or diminution of crops, in such circumstances, was directly, certainly, and solely traceable to the lack of a fertilizer, and, for the same reason, to its worthlessness. It is not unlike the opinion of an expert, which, if not founded upon a knowledge or finding of the facts to which it relates, is of no value, and those facts must be such as are material to the inquiry, and not uncertain or conjectural. We know by experience that a fertilizer of standard quality will produce good results by stimulating the growth of the plant under favorable conditions, but that in order to determine whether a failure in results is attributable to its bad quality, or to its being below such grade, the purely speculative elements or quantities in the calculation must be excluded, so as to bring the test to the standard of reasonable certainty. There must be some evidence by which the jury can reason from cause to effect, disregarding those matters which necessarily involve the matter in doubt, and prevent a reliable conclusion. If the fertilizer, therefore, is used under conditions and circumstances favoring an increased yield in the crop, provided it is of the warranted grade, and yet the results are not such as should have been expected, there is some evidence that it was of a defective quality and not up to grade. Herring v. Armwood, supra.
In this case defendant offered to prove that the fertilizer was "worthless," and should have been permitted to do so, if he could. The tender of the proof was a broad one, that the fertilizer was worthless, and the addition, "that it had no beneficial results upon the crops," was merely a logical deduction to be made from its worthless character. If it was worthless, this was certainly some evidence that it was "off grade." Tomlinson v. Morgan, 166 N.C. 557; Guano Co. v. Live Stock Co., supra. The seller and the buyer of fertilizers can protect (511) themselves by proper warranties, at the time of the purchase, if they see fit to do so. The seller may restrict it, while the buyer may require that it be enlarged, according as their interests may dictate. Unless they do so, they must abide by the contract as made by them. We need not consider the question as to the measure of defendant's damages, if he is entitled to any, as that matter is not before us. There was a warranty here and evidence as to its breach, which should have been submitted to the jury, under proper instructions.
If the question of damages comes before us, the cases of Spencer v. Hamilton, supra, and Herring v. Armwood, supra, may have an important bearing. The Revisal, sec. 3945 et seq., which penalizes the violation of its provisions, does not deprive the buyer of his right to general damages for a breach of warranty. Tomlinson v. Morgan, supra.
The question here, as to the competency of the evidence, was not presented in Fertilizer Works v. McLawhorn, 158 N.C. 274; Ober v. Katzenstein, 160 N.C. 439, or Carson v. Bunting, 154 N.C. 530. The first two cases were between the manufacturer and the dealer, and the last was an action for the penalty for not branding, and in other respects involved a different question. In the McLawhorn case, supra, so far as the question may have been mentioned, the evidence was clearly speculative.
The defendant was entitled to have an issue submitted upon his counterclaim, so that the jury might find specifically whether or not there was a warranty and a breach thereof. A cause of action or defense should not be tried upon the issue as to damages merely, where objection is made, but a separate issue should be submitted and the issue as to damages left to embrace that subject alone. Denmark v. R. R., 107 N.C. 185; Davis v. R. R., 147 N.C. 68.
New trial.
Cited: Carter v. McGill, 171 N.C. 775; Gatlin v. R. R., 179 N.C. 435; Fertilizing Co. v. Thomas, 181 N.C. 280; Fertilizer Works v. Simpson, 183 N.C. 252; Pearsall v. Eakins, 184 N.C. 294; Gulley v. Raynor, 185 N.C. 98; Brown v. Ruffin, 189 N.C. 266; Swift v. Etheridge, 190 N.C. 168; Swift Co. v. Aydlett, 192 N.C. 338; Gaskins v. Mitchell, 194 N.C. 276.