Statement by Walker, J.: of this contract are unauthorized, and will This civil action was tried before Whed-not be recognized by this company." bee, judge, and a jury, at November term, 1914, of Franl.lin superior court. Plaintiff is a ma. facturer of fertilizers, and defendant a merchant of Louisburg, who deals in fertilizers, selling them on credit to farmers. On January 31, 1913, defendant purchased fertilizers from plaintiff under a written contract; the provisions thereof, material to this case, being as follows: Under this contract, in the spring of 1913, plaintiff shipped and delivered to defendant 80 tons of 8-2-2 fertilizer. On July 1, 1913, in payment therefor, defendant executed to plaintiff notes aggregating $1,050.75, which said notes were indorsed by K. P. and J. P. Hill, and were payable in turity of said notes, and long after the January and February, 1914. Upon macrops, under which the fertilizer was used, had been harvested, defendant wrote plain"And it is further understood and agreed tiff several times and promised to pay the that the fertilizer named is furnished with notes, as will appear from letters written the guaranty of analysis printed on the from January to May, 1914, and set out in sack, but not of results from its use. Ver- the record. In January, 1914, defendant bal promises that conflict with the terms' sought to renew its contract with plaintiff, to show that it had no effect on his crops. I seems to differ from the view expressed by He must show by this and by other proof that it did not contain the ingredients of the guaranteed analysis. If he only shows that it did not have any effect on his crop, that is not sufficient, under the ruling of this court in the case of Hamlin v. Rogers, supra." Allen v. Young, 62 Ga. 617, is sufficiently dealt with in the principal case. In De Loach v. Hardee's Son & Co. 64 Ga. 94, under a contract which so far as our subject is concerned was substantially similar to that in the Allen Case, it was held that it was error to refuse to allow the plaintiff to show the effect of the fertilizer on his crops as strengthening the testimony of a chemist that the fertilizer was below standard,-especially where there was evidence that when up to the standard it had helped production. The court considered this holding as in accord with the Allen Case, and said: "While by the express terms of his contract the defendant cannot plead that the practical result of the use of the guano was that it made nothing, and defend himself on that ground, and therefore cannot introduce evidence for that purpose; yet such evidence is admissible to strengthen the testimony of the chemist that the guano did not come up to the stipulated standard, and to show that by its failure to meet the standard agreed upon the defendant was damaged. If it came up to the stipulated standard, it is wholly immaterial whether it made a lock of cotton or grain of corn; but the fact that it made neither is evidence that it did not come up to that standard, especially where the evidence is, as in this case, that other sea fowl guano which came up to the standard, or nearly so, did help the production largely." In Jones v. Cordele Guano Co. 94 Ga. 14, 20 S. E. 265, quoted from in the principal case, it was held that evidence of the failure of the guano to benefit the defendant's crops would be admissible after evidence of an analysis by an expert. the same court in Armour Fertilizer Works v. McLawhorn, 158 N. C. 274, 73 S. E. 883, where it was held that the measure of damages was the difference in price between the fertilizer contracted for and that furnished, and the court, in approving the exclusion of evidence of "the difference in the looks and nature of crops on different farms on which this fertilizer was used, and the crops under which he used other fertilizers," said. "The only pertinency of such evidence would be the inference that the ingredients were not as represented. This would be too remote, depending upon the nature of the soil, weather, cultivation, and the like. The best evidence is the analysis by the Agricultural Department. When the defendant ascertained therefrom the deficiency in the quality of the fertilizers, it was his duty to have bought fertilizing materials or ingredients to make good the deficiency. Not having done so, he can properly claim only the abatement of the price by reason of such deficiency, and that he has been allowed." But HAMPTON GUANO Co. v. HILL LIVE STOCK Co. has been followed in Carter v. McGill, N. C. 84 S. E. 802, holding that a breach of a warranty that the fertilizer should be of "the standard grade" might be shown by proof that the fertilizer was worthless by showing the results of its use. The court said: "The purchaser of the fertilizer may show a breach by the effect of the use of it upon his crops, provided he first lays the foundation for such proof by showing that it was used under conditions favorable to a correct test of its value, such as land adapted to the growth of the cotton, proper cultivation and tillage, propitious weather or seasons; the general purpose being to exclude any element which would render the evidence uncertain as to the cause of the loss or diminution of the crop or rid it of its speculative character. It may be somewhat difficult in practice to apply the rule, but it can be done by proper attention to the limitations on this kind of evidence, and we have so held, at this term, in HAMPTON GUANO Co. v. While the cases are distinguishable on the facts the holding in the principal case' HILL LIVE STOCK CO." B. B. B. provides that the analysis therein referred to is the best evidence of the contents of said fertilizers. There were some other specific grounds, not necessary to be stated. The contract between the parties was introduced in evidence, and shows that the fertilizer was guaranteed to contain the ingredients and in the porportion stated on the certificate of analysis printed on the sack, before the sale by plaintiffs, which shows the contents to be 8 per cent of phosphoric acid, 2 per cent of ammonia, and 2 per cent of potash. Plaintiff demurred and to purchase 250 tons of the same fer-ical analysis by the state chemist or other tilizer (being over three times as much as person, and that, until such analysis was it had purchased in 1913) under a con- offered, evidence as to its effect upon crops tract identical with the first one, but plain- was incompetent and inadmissible; and, tiff refused to ship the goods because de-fifth, because Revisal, §§ 3949-3951, as fendant had not paid for those purchased amended by Public Laws of 1911, chap. 92, under the contract above referred to. At no time prior to the institution of this action aid defendants ever claim or contend that the fertilizer delivered in 1913 was defective in quality or otherwise, or that they had any defense against said notes; on the other hand, they recognized their liability upon said notes, and promised to pay the same, expressing regret that a scarcity of money had prevented them from making payment at maturity. Defendants failing to comply with their promises to pay said notes, this action was instituted on June 18, 1914, to recover the amount ore tenus to the answer and counterclaim, due thereon. Defendants answered, admit-upon the following grounds: ting the execution and nonpayment of the notes, but pleading as a counterclaim that it had sold the fertilizer to its customers under warranties that the goods were in every respect highly efficient, suitable and fit for the fertilization of the crops for which they were recommended; that their customers complained to them that the goods were not fit or suitable and did not measure up to the standard and quality warranted; and that defendant had suffered damage thereby. Upon the trial defendant, over the objection of plaintiff, offered evidence from persons who had used fertilizers purchased from defendant in 1913, tending to show that the fertilizer so purchased was in bad mechanical condition, being lumpy and off color; that it did not assimilate or was not taken up by the soil and did not fertilize the crops; that they had used it under their crops with poor results and made bad crops; and that in their opinion the fertilizer was not worth as much as they were charged for it. Plaintiff objected to all this evidence, repeating the objections, until the court ruled that all such testimony should be considered as objected to. It was objected to: First, because the effect thereof was to vary the written contract between the parties, which expressly provides that the plaintiff did not in any way guarantee the effect or results from the use of the fertilizer; second, because said testimony tended to set up a new contract guarantying results from its use, whereas the written contract expressly limited the warranty to the analysis appearing on the sacks; third, because said testimony in no way tended to show that the fertilizer did not contain the constituents in the quantities guaranteed by the analysis; fourth, because there was no evidence of any chem "(1) It failed to state or allege wherein the defendants, or either of them, had been damaged. (2) It fails to allege or state, except in general terms, that defendants, or either of them, have suffered any damage whatever, actual or special. (3) It fails to specify or allege any grounds upon which defendants base their claim for damages. (4) It fails to specify wherein defendants, or either of them, have been damaged in any manner whatsoever, even if the fertilizer was not as guaranteed in the contract. (5) It fails to allege that any chemical analysis has been made by the Agricultural Department, or anyone else, and any of the ingredients found to be deficient. (6) It admits the execution of the contract containing an express warranty as to analysis as shown on the sacks, and no implied warranty as to results can be set up or considered." The demurrer was overruled, and plaintiff excepted. The jury returned the following verdict. "(1) Are the defendants indebted to the plaintiff on account of the notes sued on, and, if 80, in what sum? Answer: $1,060.28, with 6 per cent interest on $525 from January 15, 1914, until paid, and 6 per cent interest on $525.75 from February 14, 1914, until paid, and interest on $9.53 from May 4, 1914, until paid. "(2) Did the plaintiff warrant the fertilizer to contain 8 per cent available phosphoric acid, 2 per cent ammonia, and 2 per cent potash, and suitable for use as a fertilizer of crops? Answer: Yes. "(3) If yes, was said fertilizer, when delivered to defendant, as warranted? Answer: No. “(4) What damages, if any, are defendants entitled to recover of plaintiff? Answer: $1,061.25." The court gave the following instructions | Wooten v. Hill, 98 N. C. 53, 3 S. E. 846; upon the second and third issues, to which Von Hoffman v. Quincy, 4 Wall. 552, 18 exception was taken: L. ed. 409; Lehigh Water Co. v. Easton, 121 "The contract itself says that it is guar-U. S. 391, 30 L. ed. 1060, 7 Sup. Ct. Rep. 916; anteed, and warrants the purchaser that it Armour Fertilizer Works Co. v. McLawcontains 8 per cent phosphoric acid, 2 per horn, 158 N. C. 274, 73 S. E. 883; Hamlin cent ammonia, and 2 per cent potash; and v. Rogers, 78 Ga. 631, 3 S. E. 259; Scott the law says, in addition, that it is suit- v. McDonald, 83 Ga. 28, 9 S. E. 770; Jones able for the purpose for which it is sold." v. Cordele Guano Co. 94 Ga. 14, 20 S. E. 265; Yarborough v. Hughes, 139 N. C. 209, 51 S. E. 904. "If you believe this evidence, I charge you, as a matter of fact, to answer this issue, 'Yes,' that the plaintiff did warrant the fertilizer to contain 8 per cent phosphoric acid, 2 per cent ammonia, and 2 per cent potash, and that it was suitable for use as a fertilizer of crops." "If the evidence satisfies you by its greater weight that it did not contain 8 per cent phosphoric acid, 2 per cent ammonia, and 2 per cent potash, or that it was unfit for use as a fertilizer, and you are satisfied of either of these facts by the greater weight of the evidence, I charge you to answer the third issue, 'No.'" Plaintiff excepted to the judgment, which was entered upon the verdict, and appealed. Messrs. A. C. Zollicoffer, J. P. Zollicoffer, and McIntyre, Lawrence & Proctor, for appellant: The evidence as to the effect of the fertilizer and of results from its use was incompetent and should have been excluded, because the effect thereof was to vary and contradict the written contract. Independent of the statute requiring an analysis by the state chemist, the evidence offered by defendant was so speculative and uncertain that a verdict should not be allowed to be predicated thereon. Roberts v. Cole, 82 N. C. 294; Bell v. Reynolds, 78 Ala. 511, 56 Am. Rep. 52; G. Ober & Sons Co. v. Blalock, 40 S. C. 31, 18 S. E. 265; Armour Fertilizer Works v. McLawhorn, 158 N. C. 274, 73 S. E. 883. There is no implied warranty of fitness in the sale of personal property. Lanier v. Auld, 5 N. C. (1 Murph.) 138; Dickson v. Jordan, 33 N. C. (11 Ired. L.) 166, 53 Am. Dec. 403; Woodridge v. Brown, 149 N. C. 299, 62 S. E. 1076; 35 Cyc. 409; Rasin v. Conley, 58 Md. 59; Walker v. Pue, 57 Md. 155; G. Ober & Sons Co. v. Blalock, 40 S. C. 31, 18 S. E. 264; Mason v. Chappell, 15 Gratt. 572; Jackson v. Langston, 61 Ga. 392; Wilcox v. Owens, 64 Ga. 601. As the contract is in writing and contains an express warranty of quality, this excludes any implied warranty of fitness. Basnight v. Southern Jobbing Co. 148 N. C. 356, 62 S. E. 420; Dr. Shoop Medicine Co. v. J. A. Mizell & Co. 148 N. C. 384, 62 S. E. 511; Walker v. Venters, 148 N. C. 289, 62 S. E. 510; Walker v. Cooper, 150 N. C. 128, 63 S. E. 681; Woodson v. Beck, 151 N. C. 144, 31 L.R.A. (N.S.) 235, 65 S. E. 751; Cobb v. Clegg, 137 N. C. 153, 49 S. E. 80; J. I. Case Threshing Mach. Co. v. McClamrock, 152 N. C. 405, 67 S. E. 991; Anderson v. American Suburban Corp. 155 N. C. 131, 36 L.R.A. (N.S.) 896, 71 S. E. 221; Leonard v. Southern Power Co. 155 N. C. 10, 70 S. E. 1061; Jeffords v. Albe- | (N.S.) 275, 101 Pac. 233. marle Waterworks, 157 N. C. 10, 72 S. E. 624; S. F. Bowser & Co. v. Tarry, 156 N. C. 35, 72 S. E. 74; Armour Fertilizer Works v. McLawhorn, 158 N. C. 275, 73 S. E. 883; Lytton Mfg. Co. v. House Mfg. Co. 161 N. | C. 430, 77 S. E. 233; Allen v. Young, 62 Ga. 619. DeWitt v. Berry, 134 U. S. 306, 2. L. ed. 896, 10 Sup. Ct. Rep. 36; Chase Hackley Piano Co. v. Kennedy, 152 N. C. 196, 67 S. E. 488; W. F. Main Co. v. Griffin-Bynum Co. 141 N. C. 43, 53 S. E. 727; Robinson v. Huffstetler, 165 N. C. 459, 81 S. E. 753; Brooks Bros. Lumber Co. v. Case Threshing Mach. Co. 136 Ga. 754, 72 S. E. 40; J. I. Case Threshing Mach. Co. v. McKay, 161 N. C. 586, 77 S. E. 848; Jackson v. Langston, 61 Ga. 392; Farrow v. Andrews, 69 Ala. 96; Springfield Shingle Co. v. Edgecomb Mill Co. 52 Wash. 620, 35 L.R.A. There being no evidence that the fertilizer had been analyzed by the state chemist, evidence of the effect of the fertilizer upon crops was insufficient and incompetent to show a breach of warranty under the contract, or to show that the goods did not come up to the guaranteed analysis. If damages were otherwise recoverable, there could be no recovery based upon the evidence herein, because such damages are too vague, indefinite and conjectural to form a basis from which the jury could estimate the same. Boyle v. Reeder, 23 N. C. (1 Ired. L.) 607; Roberts v. Cole, 82 N. C. 292; Reiger v. Worth, 127 N. C. 230, 52 L.R.A. 362, 80 Am. St. Rep. 798, 37 S. E. 217; Winston Cigarette Mach. Co. v. Wells Whitehead Tobacco Co. 141 N. C. 284, 8 L.R.A. (N.S.) 255, 53 S. E. 885; Walser v. Western U. Teleg. Co. 114 N. C. 440, 19 S. E. 366; O'Kelly v. Williams, 84 N. C. 285; Hardison v. Reel, 154 N. C. 277, 34 L.R.A. What was said by Justice Brown in Chase Hackley Piano Co. v. Kennedy, 152 N. C. 196, 67 S. E. 488, is very pertinent here: (N.S.) 1098, 70 S. E. 463; Armour Fer- | Reade, 6 T. R. 606, 3 Revised Rep. 273. tilizer Works v. McLawhorn, 158 N. C. Express warranty as to soundness and age 274, 73 S. E. 883; Carson v. Bunting, 154 excludes any implied warranty as to other N. C. 530, 70 S. E. 923; G. Ober & Sons qualities." Co. v. Katzenstein, 160 N. C. 439, 76 2. E. 476; Bowen v. King, 146 N. C. 391, 59 S. E. 1044; Pittsburg, J. E. & E. R. Co. v. Wakefield Hardware Co. 143 N. C. 57, 55 S. E. 422; Pender Lumber Co. v. Wilmington Iron Works, 130 N. C. 589, 41 S. E. 797; Willis v. Branch, 94 N. C. 149. Messrs. Ben. T. Holden, William H. Ruffin, W. H. Yarborough, Jr., and W. M. Person, for appellee: The analysis by the state chemist is the best evidence of the constituent parts of fcrtilizers offered for sale, but such analysis is not the only evidence admissible. Tomlinson & Co. v. Morgan, 166 N. C. 557, 82 S. E. 953; Jones v. Cordele Guano Co. 94 Ga. 14, 20 S. E. 265. There was no contradiction or variation of the terms of the written contract by the admission of the evidence excepted to. Defendant relied upon that implied warranty which runs with all sales of personalty, that the article sold was merchantable and that it was fit for some use or purpose, or the purpose for which it was sold, if sold for a particular purpose. Benjamin, Sales, § 86; Main v. Field, 144 N. C. 311, 11 L.R.A. (N.S.) 245, 119 Am. St. Rep. 956, 56 S. E. 943; Dr. Shoop Family Medicine Co. v. Davenport, 163 N. C. 296, 79 S. E. 602; Ashford v. H. C. Shrader Co. 167 N. C. 45, 83 S. E. 29. Walker, J., delivered the opinion of the court: When a person buys an article of personal property, he can require an express warranty as to its quality, or he may rely upon the warranty which the law implies in certain sales; but it has been well said that: "When he takes an express warranty, it will exclude an implied warranty on the same or a closely related subject. Thus an express warranty of quality will exclude an implied warranty of fitness for the purpose intended, but an express warranty on one subject does not exclude an implied warranty on an entirely different subject," --an illustration of the latter being that an express warranty of title will not exclude an implied warranty of soundness or merchantability. 35 Cyc. 392. It was held in the early case of Lanier v. Auld, 5. N. C. (1 Murph.) 138, 3. Am. Dec. 680: "That the law will not imply what is not expressed, where there is a formal contract. Evan's Essay, 32; 1 Fonbl. 364; Bree v. Holbech, 2 Dougl. K. B. 654; Cripps v. "We have recognized the principle that there can be no implied warranty of quality in the sale of personal property where there is an express warranty, and that, where a party sets up and relies upon a written warranty, he is bound by its terms and must comply with them. 30 Am. & Eng. Ene. Law, p. 199; W. F. Main Co. v. GriffinBynum Co. 141 N. C. 43, 53 S. E. 727. We recognize the further principle, applied by us in that case, that a failure by the purchaser to comply with the conditions of the warranty is fatal to a recovery for breach of the warranty in an action on it, or where, as in this case, damages for the breach are pleaded as a counterclaim in an action by the seller for the purchase money.” "There are numerous well-considered cases that an express warranty of quality excludes any implied warranty that the articles sold were merchantable or fit for their intended use." De Witt v. Berry, 134 U. S. 306, 33 L. ed. 896, 10 Sup. Ct. Rep. 536. See also W. F. Main Co. v. Griffin-Bynum Co. supra; Robinson v. Huffstetler, 165 N. C. 459, 81 S. E. 753; Brooks Bros. Lumber Co. v. Case Threshing Mach. Co. 136 Ga. 754, 72 S. E. 40. It has been held tl.at an implied warranty cannot be set up, even under a code provision, where the parties, by their contract, have expressly agreed upon a different warranty, whether it be more or less extensive or limited (Jackson v. Langston, 61 Ga. 392; Farrow v. Andrews, 69 Ala. 96), and also that if a specific kind of fertilizer, or other article of a certain description or name, is ordered, there is no implied warranty of fitness, but only one that it is the kind designated (35 Cyc. 409; Rasin v. Conley, 58 Md. 59; G. Ober & Sons Co. v. Blalock, 40 S. C. 31, 18 S. E. 264; Mason v. Chappell, 15 Gratt. 572; Walker v. Pue, 57 Md. 155; Wilcox v. Owens, 64 Ga. 601). A party who relies upon a written contract of warranty as to quality or description of the property he has purchased is bound by the terms of the warranty. J. I. Case Threshing Mach. Co. v. McKay, 161 N. C. 586, 77 S. E. 848. He is not only held to the terms of the contract into which he has deliberately entered, but he is not permitted to contradict or vary its terms by parol evidence, as "the written word must abide" and be considered as the only stan hesitate very long before adopting it, with its disastrous consequences to both parties, which we cannot suppose they contemplated. The court, therefore, erred in charging the jury that if the fertilizer did not contain the ingredients, and in the quantities, as warranted, or if it was not suited to the purpose for which it was sold, they should answer the third issue in the negative, for the special warranty and the provisions against any liability for results excluded any implied warranty as to its suitableness for use in fertilizing crops. In Allen v. Young, 62 Ga. 617, where the contract and statute of the state were much like ours, it was said: dard by which to measure the obligations a construction of the contract, we should of the respective parties to the agreement, in the absence of fraud or mistake, or other equitable element. 35 Cyc. 379. There are numerous cases decided by this court, illustrative of this elementary rule in the law, as to written contracts. Moffitt v. Maness, 102 N. C. 457, 9 S. E. 399; Cobb v. Clegg, 137 N. C. 153, 49 S. E. 80; Basnight v. Southern Jobbing Co. 148 N. C. 356, 62 S. E. 420; Walker v. Venters, 148 N. C. 389, 62 S. E. 510; Dr. Shoop Medicine Co. v. J. A. Mizell & Co. 148 N. C. 384, 62 S. E. 511; Walker v. Cooper, 150 N. C. 128, 63 S. E. 681; Woodson v. Beck, 151 N. C. 144, 31 L.R.A. (N.S.) 235, 65 S. E. 751; J. I. Case Threshing Mach. Co. v. McClamrock, 152 N. C. 405, 67 S. E. 991; and especially Armour Fertilizer Works v. McLawhorn, 158 N. C. 275, 73 S. E. 883. There are authorities which hold that there is no implied warranty of quality in the sale of goods, but some of these are reviewed by this court in the late case of Ashford v. H. C. Shrader Co. 167 N. C. 45, 83 S. E. 29, and a warranty was said to be implied in certain excepted instances, but they all relate to contracts which do not contain any express warranty of quality. The subject is fully considered in that case, and further comment, therefore, is not required. Let us now examine the facts of this case in the light of the foregoing principles. The main inquiry is as to the nature and scope of the special warranty and the rights and obligations of the parties springing therefrom. The warranty is made up of three elements: (1) That the fertilizer shall contain the ingredients in a specified proportion, as stated in the analysis printed on each bag. (2) That the seller should not be held responsible for results in its actual use. "The notes given to the company for the price of the fertilizer having upon their face a stipulation that the fertilizer was purchased 'entirely upon the basis of the analytical standard guaranteed by the company, and that I [the buyer] will in no event hold it responsible beyond such standard, nor in any wise for practical results,' the precise right of the purchaser was to receive an article containing the chemical and ferti lizing properties enumerated in the guaranty, and these in the proportions and up to the degree of strength held out as a standard." McDonald, 83 Ga. 28, S. E. 770; Jones v. The same court, in that and other cases, discusses the competency and probative force of evidence as to the effect of the particular fertilizer, when used upon land, in producing crops, and strongly intimates that such evidence is not admissible, where the contract contains a provision that the seller is not to be liable for results, and that, if it is competent, it should be received with caution and in connection with more direct evidence that the fertilizer did not contain the ingredients guaranteed by (3) That the whole contract is therein the analysis, or as much of them as the expressed, and all other terms are unau-analysis and certificate required. Hamlin thorized. No language could be more ex- v. Rogers, 78 Ga. 631, 3 S. E. 259; Scott v. plicit and no contractual obligation and right more definitely fixed. The warranty was drawn for the very purpose of preventing the recovery of such damages as are, in their nature, very speculative, if not imaginary, and out of all proportion to the amount of money or price received by the seller for the fertilizer. If fertilizer companies can be mulcted in damages for the failure of the crop of every farmer who may buy from them, they would very soon be driven into insolvency or be compelled to withdraw from the state, as the aggregate damages, if the supposed doctrine be carried to its logical conclusion, would be ruinous, and the farmers in the end would suffer incalculable harm. In view, then, Our statute (Revisal §§ 3945 to 3957) of the probable results flowing from such provides for an analysis by the Department The court said in Hamlin v. Rogers, [it is represented to contain]. [He] may |