The record contains a large number of exceptions, typical of a trial of this kind, which we find it impossible, for want of space, to treat in detail. We confine discussion to the points urged upon us as more important.
The objection that defendant was denied the benefit' of the telephone conversation between him and representatives of the plaintiff, i.e., between Asheville and Miami, would require more intimate discussion of that- interesting subject except for the fact that the conversation was substantially repeated at least twice by defendant on plaintiff’s cross-examination which, in our opinion, cured the error, if any had occurred.
There may be some technical error in the statement of the witness that' the balance of his cargo of the same shipload had been sold to various concerns throughout the United States and paid for without complaint, but we are not sufficiently satisfied that it was prejudicial to the defendant as to justify us in holding it for reversible error.
The appellant excepts to the charge as omitting substantial contentions of the defendant and over-emphasizing the contentions of the plaintiff; and that the array, in reality, amounts to a strong argument for plaintiff’s side of the controversy, and an expression of opinion by the court; and that there were several misstatements of the evidence. ,
No adequate reason is given why the exceptive portions of the charge, challenged for omission of defendant’s contention or containing misstatements of the evidence, do not come under the rule requiring the matter to be called to the attention of the court at the time, in order to preserve the exception. S. v. Sutton, post, 244; S. v. McNair, 226 N.C. 462, 38 S.E. 2d 514.
As to the other objection, that the method and manner of the array of contentions amounted to an expression of opinion, if as defendant suggests, it must be found “from the four corners” of the charge, — and it is difficult to see how else the imbalance could be perceived — careful reading leaves us with the impression that the exception does not point to reversible error.
Appellant points out, however, that the following instruction openly assumed a fact to exist which was a jury question — whether the Grayson ship had arrived on the 7 th — and should be held for reversible error :
“Now, gentlemen, if the bananas when they reached Miami on the ship, on the date of the 7th, when they were unloaded there, were of the character and kind of bananas that the plaintiff sold to the defendant, but du'e to the defendant’s failure to get his truck *86there, and in view of the defendant’s failure to receive the bananas until the 10th, the plaintiff would not be responsible for any loss or deterioration in character or kind of bananas that were delivered to the plaintiff on the 10th, if they had deteriorated and were not of the kind and character of bananas that were delivered from the ship on the 7th or 8th, or whenever it was unloaded, because, under the contract'the bananas were to be delivered to the defendant f. o. b. in Miami at the time that the ship arrived.”
This passage is not ideally clear, but sufficiently so to give the jury to understand the proposition, hypothetically put, that if the deterioration in the condition of the bananas was due to a fault of the defendant in delaying their receipt from the time they should have been picked up — ■ from the “7th to the 10th,” “or on the 7th or 8th, or whenever it was unloaded,” plaintiff would not be responsible for the change in condition. This instruction taken in its entirety, leaves the question of the arrival of the ship open by rephrasing the point. The assignment of error pointed out is unsubstantial, in view of the whole charge.
We are unable to sustain the assignments of error discussed, or others called to our attention, after careful examination, and we find
No error.