CONNOR, J., dissenting. Civil action to recover on a promissory note given for fertilizer warranted to be of high grade and expressly prepared for use in the cultivation of tobacco.
Defense was interposed on the ground of alleged failure of consideration; and a counterclaim was set up for loss of crops. A further counterclaim for assault and false arrest on the part of the officer who served the claim and delivery papers in this action was also pleaded.
Defendant offered two certificates of chemical analyses, one made by Robb Arnold, of Richmond, Va., and the other by W. G. Haywood, Fertilizer Chemist, North Carolina Department of Agriculture, Division of Chemistry, both showing deficiency of ingredients in the fertilizer, which were at first excluded on plaintiff's objection, but later admitted on objection being withdrawn. Notwithstanding this evidence, the court held that the analyses were not made as required by the statute, hence he declined to submit an issue on defendant's counterclaim for loss of crops, and instructed the jury that the chemical analyses could only be considered on the question of alleged want of consideration. There was *Page 245 no issue submitted as to the alleged assault and false arrest by the officer who served claim and delivery papers in the present action.
From a judgment in favor of plaintiff for the amount of the note the defendant appeals, assigning errors. after stating the case: We think the trial court erred in limiting the use of the chemical analysis, made by the State Chemist, to evidence tending to show want of consideration. Fertilizer Co. v. Thomas,181 N.C. 274, 106 S.E. 835. True, it is provided by C. S., 4697, that "no suit for damages from results of use of fertilizer may be brought except after chemical analysis showing deficiency of ingredients" (unless other facts appear, not now pertinent), and when such analysis is had in accordance with the provisions of the statute, the certificate of the State Chemist, setting out the analysis, is made prima facie proof of the constituency of said fertilizer as shown thereby. But here, there was a certificate of the State Chemist, showing deficiency of ingredients of the fertilizer, in evidence without objection, hence it would seem that defendant was entitled to have his counterclaim for loss of crops submitted to the jury. Swift Co. v. Aydlett, 192 N.C. 330, 135 S.E. 141. We are not now required to say whether the analysis made by the Richmond firm of chemists is competent as evidence on this phase of the case. Nor is the preliminary question as to whether the provisions of the statute were complied with, which go to the competency of the certificate of the State Chemist as prima facie proof of the constituency of the fertilizer, presented on this appeal, as the certificate was admitted without objection.
There was no error, however, in declining to submit an issue as to the alleged assault and false arrest by the officer who served the claim and delivery papers issued in the present action, for the very good reason, among others, that the alleged cause of action, set up herein as a counterclaim, did not arise out of, nor is it connected with, the subject-matter of plaintiff's claim, and it did not accrue until after the institution of the present suit. C. S., 519 and 521; Phipps v. Wilson,125 N.C. 106, 34 S.E. 227; Sewing Machine Co. v. Burger, 181 N.C. 241,107 S.E. 14; Smith v. French, 141 N.C. 1, 53 S.E. 435. See, also,Williams v. Perkins, 192 N.C. 175, 134 S.E. 417.
For the error, as indicated, a new trial must be awarded, and it is so ordered.
New trial. *Page 246