#### PRATER PULVERIZER COMPANY, a Corporation, v. F. H. JENNINGS, Trading as LEWISVILLE ROLLER MILLS.

(Filed 22 May, 1935.)

1. Appeal and Error E h—

Where the answers of the jury to the first two issues renders the answering of the third issue unnecessary, an exception to the admission of evidence relating to the third issue becomes immaterial and need not be considered on appeal.

2. Trial E g—

The charge in this case, when construed as a whole in the light of the issues, *is held*not to contain reversible error and to fairly present the contentions of the parties and the law applicable to the theory of trial.

3. Trial E f—

If the charge fails to fully set forth a party’s contentions or incorrectly states them, it is incumbent upon the party to aptly request additional or more specific statements of the contentions.

4. Appeal and Error B lb—

An appeal will be considered in the light of the theory of trial in the lower court.

Appeal from *Hill, J.,*at July Special Term, 1934, of Fokstth.

No error.

This was a civil action, instituted by the plaintiff against the defendant in tbe Forsyth County court to recover the purchase price of “1 No. 30 Rlue Streak custom mill complete,” and accessories, and to subject said property to sale to satisfy such debt, wherein the defendant admitted the delivery of the property but set up as a defense to the action that such property was delivered to him upon the condition precedent that he should first try out the mill to ascertain if it met the guarantee of the seller that it would “grind feed better and at a lower cost per hundred pounds than any other mill on the market,” before the order providing for a conditional sales contract and notes theretofore signed by the defendant should become effective. The case was tried upon the following issues, to which answers were made as indicated, to wit :

“1. Did the defendant execute the written instrument, as alleged in the complaint? Answer: ‘Yes.’

“2. Was the written instrument signed by the defendant upon a condition precedent, as alleged in the answer? Answer: ‘No.’

“3. If so1, has the condition precedent been fulfilled? Answer:.

“4. What amount, if any, is the plaintiff entitled *to*recover of the defendant? Answer: ‘$817.11.’”

*235From judgment tbat tbe plaintiff recover tbe sum of $817.71, and tbat tbe property be condemned and sold to satisfy tbe judgment, tbe defendant appealed from tbe Forsytb County court to tbe Superior Court, making 22 assignments of error. Tbe case came on to be beard at term time, and tbe Superior Court entered judgment overruling each and every assignment of error and entered judgment affirming tbe Forsytb County court. Whereupon, tbe defendant appealed to tbis Court, making 13 assignments of error. •

*Moses Shapiro and Ira Julian for plaintiff, appellee.*

*Ingle & Ruclcer for defendant, appellant.*

SciieNck,' J.

Tbe first assignment of error is to tbe admission of certain opinion evidence, and tbe last is to tbe court’s refusal to set aside tbe verdict and to tbe signing of tbe judgment as set forth in tbe record. All of tbe others are to tbe charge.

Tbe first assignment of error, which is to tbe court’s refusal to strike out an opinion expressed by a certain witness as to what caused a given trouble in tbe operation of tbe mill becomes immaterial on tbis appeal, since tbe evidence relates to tbe third issue and tbe answering of tbat issue was rendered unnecessary by tbe answers to tbe first and second issues.

We have examined with care tbe many objections to tbe charge of tbe court, but upon reading tbe charge as a whole we are left with tbe impression tbat it was complete and fair to tbe defendant, and in accord with tbe theory upon which tbe case was tried. It is said in *Murphy v. Coach Company,*200 N. C., 92, “In a long charge, we do not think technical matters contended as errors, fished out of tbe charge, can be held as reversible or prejudicial error, when on tbe whole tbe charge is correct.” And it is further said in *Leggett v. R. R.,*173 N. C., 698, “Tbe charge to a jury must be considered as a whole in tbe same connected way in which it was given, and upon tbe presumption tbat tbe jury did not overlook any portion of it. If, when so construed, it presents tbe law fairly and correctly, it will afford no ground for reversing tbe judgment, though some of tbe expressions, when standing alone, might be regarded as erroneous.”

Tbe charge in tbis case, when read in tbe light of tbe issues, which were tendered by tbe appellant, fairly presents tbe contentions of tbe parties and correctly applies tbe principles of law under tbe theory upon which tbis case was tried, and if tbe defendant’s contentions were not fully set forth at tbat time, or were incorrectly stated, it was incumbent upon him to have requested tbe court to present more specific and additional or different contentions. *Proctor v. Fertilizer Company,*189 *236N. C., 243. A party is not permitted to try bis case in the lower court upon one theory and then ask the Supreme Court to hear it on another and different theory. *Walker v. Burt,*182 N. C., 325, and cases there cited.

This was a case for trial by jury. The evidence was conflicting and a finding of the facts was necessary to adjudicate the differences between the parties. Under a charge free from prejudicial error, the jury has answered the issues, tendered by the defendant, in favor of the plaintiff, and, therefore, we can see no reason for disturbing the judgment based upon the verdict.

No error.