#### FRANK G. FURST and FRED G. THOMAS, Copartners, Trading as FURST AND THOMAS, v. J. F. TAYLOR, CLEVELAND CAGLE, GEORGE D. CARTER and D. S. BLUE.

(Filed 3 May, 1933.)

Sales H f — In action foi* purchase price the burden oí establishing' breach - of warranty and payment is on purchaser.

In an action to recover the purchase price for goods sold and delivered the burden is on defendants to prove their defenses of breach of warranty and payment, and plaintiff is entitled to a new trial for the trial court’s failure to so instruct the jury, although no request for such, instructions was submitted, since the matter affects a substantial right of plaintiff.

Appeal by plaintiffs from *Oglesby, J.,*at December Term, 1932, of Moore.

New trial.

This is an action by Furst and Thomas, distributors of the McNess’ sanitary line of products, which is composed of proprietary medicines, *604flavoring extracts, spices, coffee, some food products, stock remedies, dip disinfectants and brushes, a “fly killer” preparation, against J. F. Taylor, dealer; and I). S. Blue, George D. Carter and Cleveland Cagle, guarantors; and is based upon a breach of a contract wherein the plaintiffs agree to sell the dealer on credit at wholesale prices, and the guarantors guarantee payment of goods thus purchased by the dealer.

Plaintiffs’ prayer for judgment: “That the plaintiffs recover from the defendants, J. E. Taylor, Cleveland Cagle, George D. Carter and D. S. Blue, the sum of $891.59, with interest thereon from 13 August, 1929, until paid.”

The answer and further answer of defendants, are not as definite as they should be, but, under our liberal practice and the theory on which the action in the court below was tried, the plea of defendants seems to be payment and breach of warranty.

The issues submitted to the jury and their answers thereto, were as follows:

“1. Is the defendant, J. E. Taylor, indebted to the plaintiffs, and if so, in what amount? 2. Are the defendants, D. S. Blue, George D. Carter and Cleveland Cagle, indebted to plaintiffs, and if so, in what amount? And the jury, for their verdict, answered the first issue $178.59, with interest; and the second issue $178.59, with interest.”

Judgment was duly rendered for plaintiffs on the verdict. Numerous exceptions and assignments of error were made by plaintiffs, and appeal taken to the Supreme Court. The necessary ones and facts will be set forth in the opinion.

*O. H. Dearman, Statesville, N. 0., and Samuel B. Hoyle, Carthage, N. C., for ‘plaintiffs.*

*11. F. Seawell, Jr., for defendants.*

Clarkson, J.

“We think it only necessary to consider one exception and assignment of error.

The defendant, J. E. Taylor, on 2/9/ 1929, wrote plaintiff's: “Dear Sir: I have checked over my account with your statement showing that I owe you a balance of $884.66 on 1 January, 1929. I approve this as being correct.”

On 29 August, 1929, he also wrote plaintiffs: “Just received your letter in regard to what I owe you. Will say I have not the money to pay it now, but if you will be so kind as to give me time, I think I can collect enough to pay up all right. I have got out on my books over $2,000. I will get out as soon as the tobacco market opens. The tobacco market will open 24 September. It is impossible to collect now as money is so scarce. I think I can pay you up by the first of the year with my *605collections. Hope yon will be so good as to wait and not pusli nay sureties for it. Write and let me know about it. Yours for a fair deal.”

In J. F. Taylor’s testimony, on cross-examination, be said: “Sure, I promised to pay it. That was my intention.”

Tbe plaintiffs except and assign error “to tbe charge of tbe court to tbe jury for that bis Honor failed to charge tbe jury that tbe burden of establishing tbe breach of warranty was upon tbe defendants; and bis Honor further erred in failing to charge tbe jury that tbe defendants having admitted owing to tbe plaintiffs tbe sum sued for and promising to pay tbe same, tbe burden was upon tbe defendants to show payment.”

In *Ashford v. Shrader,*167 N. C., 45, 46, tbe court below charged tbe jury: “Tbe burden is upon tbe plaintiffs on this issue to satisfy you by tbe greater weight of tbe evidence that there was any warranty in tbe sale of tbe goods. If they have so satisfied you, you will answer tbe issue ‘Yes,’ if they have not, you will answer ‘No.’ ” At p. 50, this Court said: “We are, therefore, of tbe opinion that bis Honor’s charge was correct; that there was an implied warranty in the sale of the oranges that they should be at least salable, and tbe question as to the waiver of tbe warranty was submitted to tbe jury under instructions which were fair to both parties.”

In 55 C. J., p. 837-8, part sec. 833, we find: “Tbe burden of proof is on tbe party relying on a breach of warranty to show tbe warranty, and the breach thereof. Tbe burden of proof is also on such party to show tbe damages resulting from the breach,” etc.

It is well settled that tbe plea of payment is an affirmative one and tbe burden of showing payment is on tbe one who relies on same. The burden of proof is a substantial right. *Collins v. Vandiford,*196 N. C., 237.

In *Construction Co. v. Wright,*189 N. C., 456, 460, it is said: “Whenever tbe trial court attempts to state tbe rule of law applicable to tbe case, he should state it fully and not omit any essential part of it. Tbe omission of any material part is, necessarily, error of an affirmative or positive kind. Therefore, it may be taken advantage of on appeal, by an exception to tbe charge, without a special request for tbe omitted instruction.” *McCall v. Lumber Co.,*196 N. C., 597, 602.

Tbe learned judge in the court below overlooked this matter, as there was no prayer for instruction, but as it is a substantial right- we cannot ignore it when exception and assignment of error has been properly made, as in this case. Tbe other questions presented on tbe record we need not now consider. For tbe reasons given, there must be a

New trial.