#### LUMMUS COTTON GIN COMPANY v. ANDREW WISE.

(Filed 25 February, 1931.)

1. Evidence C d — Burden of proving matters set up in counterclaim is on the defendant.

In an action upon a xturchase-money note a counterclaim based upon damages for breach of warranty of the thing sold is a cross-action with the burden of proof on the defendant setting it up.

2. Trial D a — Where there is evidence to support allegations in answer setting up counterclaim, nonsuit is properly denied.

Where there is evidence to support defendant’s counterclaim set up by him in his answer to the complaint the plaintiff’s motion to dismiss the cross-action thereon is properly denied.

3. Sales H e — Under facts of this case purchaser held not barred from recovery on warranty because of failure to comply with condition.

Where a written warranty of sale of machinery is based upon a condition precedent, and it appears that the purchaser could not read or write, and that the warranty was not read to him by the seller’s agent, the nonperformance of the condition is held not to bar his right of recovery on the warranty in this case.

Appeal by plaintiff from *D&vin, J.,*at September Term, 1930, of JohNstoN.

No error.

Tbis is an action to recover on a note for tbe sum of $845.70, executed by tbe defendant, in part payment of tbe purchase price for a cotton gin. In bis answer defendant admitted tbe execution of tbe note, and also tbe execution of tbe conditional sales contract, by wbicb tbe plaintiff retained title to tbe cotton gin, until all tbe notes for tbe purchase *410price of said cotton gin bad been paid. All of said notes except tbe note-sued on in tbis action bave been paid.

Defendant alleged in bis answer tbat plaintiff failed to perform fully its contract in tbe particulars specified in tbe answer, and also breached its warranty in tbe sale of tbe cotton gin. He demanded judgment tbat be recover of tbe plaintiff damages as a counterclaim or set-off against tbe note sued on in tbis action.

Tbe jury found tbat there was a breach of tbe warranty as alleged in tbe answer and assessed defendant’s damages at $600. From judgment on tbe verdict tbat plaintiff recover of tbe defendant tbe sum of $245.40, with interest from tbe date of tbe note, to wit, 25 June, 1925, plaintiff appealed-to tbe Supreme Court.

*A. M. Noble for plaintiff.*

*Abell & Shepard for defendant.*

Pee CueiaM.

On tbe admissions in tbe answer, but for the counterclaim alleged therein, tbe plaintiff was entitled to judgment on tbe pleadings. Tbe burden of proof was therefore on tbe defendant, as tbe trial judge correctly ruled.

A counterclaim is a cross-action by tbe defendant against tbe plaintiff. Tbe burden of proof is always on tbe defendant, who admits tbe cause of action alleged in tbe complaint, and relies upon a counterclaim alleged in bis answer, which is denied' in tbe reply. In tbe absence of evidence tending to support tbe counterclaim, tbe defendant should be nonsuited. *McQueen v.*Bank, 111 N. C., 509, 16 S. E., 207.

In tbe instant case there was evidence in support of tbe allegations in tbe answer, constituting a counterclaim. There was, therefore, no error in tbe refusal of plaintiff’s motion at tbe close of all tbe evidence tbat defendant’s counterclaim or cross-action be dismissed.

Upon consideration of tbe other assignments of error by plaintiff on tbis appeal, we are of tbe opinion tbat they cannot be sustained. Defendant can neither read nor write. Tbe warranty contained in tbe written contract was not read or explained to him by tbe salesman who solicited bis order for tbe cotton gin. Under tbe circumstances as shown by all tbe evidence, and as found by tbe jury, tbe conditions precedent to a claim by tbe defendant for damages resulting from a breach of tbe warranty cannot and ought not to be enforced in tbe instant case. Tbe judgment is affirmed. We find

No error.