Troitino v. Goodman

• Decision Date: 26 September 1945
• Docket Number: 96
• Citation: 35 S.E.2d 277,225 N.C. 406
• Parties: TROITINO v. GOODMAN.
• Court: North Carolina Supreme Court

35 S.E.2d 277

225 N.C. 406

TROITINO v. GOODMAN.

No. 96

Supreme Court of North Carolina

September 26, 1945

[Copyrighted Material Omitted]

Civil action for damages arising out of contracts made in connection with sales of second-hand machinery.

Plaintiff is a contractor engaged in road construction. Defendant is a dealer in used road machinery. Both are residents of Buncombe County.

Three separate transactions are set out in the complaint:

First. It is alleged that on October 30, 1942, the plaintiff purchased from the defendant two Cletrac Tractors--one with bulldozer attached and the other with angledozer attached--for a cash consideration of $9,250; that as an inducement to the sale, the defendant agreed to put the equipment in first-class condition for immediate use, and to secure leases for the tractors at current rental levels for a period of at least three months, or until the plaintiff should need the machinery in his own business; that the defendant neglected, failed and refused to make the needed repairs and to lease the equipment, as he agreed to do, by reason of which the tractors were rendered of no monetary value to the plaintiff; that in an effort to repair one of these tractors, and place it in usable condition, the plaintiff expended the sum of $328.66, which enured to the benefit of the defendant.

Second. It is alleged that on November 1, 1942, the plaintiff purchased from the defendant one TD-40 International Tractor to be equipped with angledozer and pump; that as an inducement to the sale, the defendant agreed to put the tractor in firstclass mechanical condition, and to lease the same at the prevailing rental value for a period of at least three months; that the plaintiff agreed to pay the defendant therefor the sum of $3,500, and then and there made a cash payment of $2,000 on account; that the defendant failed and refused to put the equipment in first-class mechanical condition and to lease it, as he had agreed to do, by reason of which the tractor is now useless to the plaintiff.

Third. It is alleged that on November 1, 1942, the plaintiff purchased from the defendant one Back Hoe digger for a cash consideration of $750; that as an inducement to the sale, the defendant agreed to attach the same to an Ensley Crane or Shovel belonging to the plaintiff; that the Back Hoe 'the property of this plaintiff', is now in the possession of the defendant unattached, and by reason of the defendant's failure to comply with his agreement to attach the Back Hoe to plaintiff's Ensley Crane or Shovel and deliver same to plaintiff in first-class mechanical condition, the plaintiff has been deprived of the use and possession thereof since the date of purchase.

Wherefore, the plaintiff demanded a return of all moneys paid the defendant for the several items of machinery damages for rental losses and money expended for repairs.

The defendant filed answer, admitted the sale of the different pieces of machinery, but denied any and all liability, and set up a counterclaim for 10% commission on all rentals collected during the three months next following the purchase of the Cletracs.

It appearing that an accounting would be necessary, the court ordered a reference, and named Hon. S. G. Bernard of the Asheville bar as referee.

The referee found the facts in detail, all in favor of the plaintiff, the crucial ones, presently pertinent, being as follows:

'4. It was further agreed between plaintiff and defendant that for his services in securing leases for said Cletracs the defendant was to receive ten (10%) per centum of all rents collected on leases secured by defendant.'

'17. That the plaintiff expended the following sums of money for parts and repairs to said Cletracs in an effort to put the same in condition for operation and service: * * * $791.55.'

'18. That in purchasing and paying for said Cletracs the plaintiff relied and acted upon the representations and agreement of the defendant that he would put said Cletracs and equipment in first class condition and that he would secure leases for the same for at least three months at current rental prices.'

'19. That the defendant breached his said contract with the plaintiff by failing to put said Cletracs and equipment in first class condition and to rent out the same for a period of three months at current rental values.'

'21. That at the time said Cletracs were sent out by defendant and at the time the same were delivered to the plaintiff, said Cletracs were worth the sum of $2,000.'

'28. That in agreeing to purchase and pay for said TD-40 International Tractor and equipment and in paying the defendant the sum of $2,000, the plaintiff relied and acted upon the representations and agreement of the defendant to attach an angledozer and a pump to said tractor and put the same and equipment in first class condition and to secure leases therefor for at least three months at current rentals.'

'29. That the defendant breached his contract with the plaintiff by failing to put said TD-40 International Tractor and equipment in first class condition, to lease the same, or to tender delivery thereof to the plaintiff.'

'30. That on or about the 12th day of November, 1942, the plaintiff purchased from the defendant one Back Hoe and the defendant agreed to attach the same to an Ensley Crane belonging to the plaintiff.'

'32. That the defendant breached his contract with the plaintiff to attach said Back Hoe to said crane and still has said Back Hoe in his possession.'

'33. That the failure of the defendant to attach said Back Hoe to said crane rendered said Back Hoe of no value to the plaintiff.'

Upon the facts as found by the referee, the following conclusions were reached:

'1. That the plaintiff is entitled to recover from the defendant the purchase price of the two Cletracs, viz., the sum of $9,250, less the value of said Cletracs, viz., $2,000, with interest thereon from October 30, 1942.

'2. That the plaintiff is entitled to recover from the defendant the rental value of the Cletrac with bulldozer attached for a period of three months, viz., $1,980, and the rental value of the Cletrac with angledozer attached for a period of three months, viz., $2,025, less rents collected in the amount of $1,114, with interest thereon from March 13, 1943.

'3. That the plaintiff is entitled to recover from the defendant the cost of parts and repairs to said Cletracs in the sum of $328.66, with interest thereon from June 7, 1943.

'4. That the plaintiff is entitled to recover from the defendant the cash payment on one TD-40 International Tractor in the amount of $2,000, with interest thereon from Nov. 1, 1942.

'5. That the plaintiff is entitled to recover from the defendant the rental value of said TD-40 International Tractor for three months, viz., $1,934 (balance of damages sued for), with interest thereon from March 13, 1943.

'6. That the plaintiff is entitled to recover from the defendant the purchase price of a Back Hoe, viz., $750, with interest thereon from November 12, 1942.

'7. That the defendant is entitled to recover from the plaintiff commissions at ten per cent on $1,114, viz., $111.40, with interest thereon from March 13, 1943.'

(Without objection, the parties seem to have dealt with another item not covered by the pleadings.)

Exceptions were filed to the findings of fact and conclusions of the referee, all of which were overruled by the trial court, save and except the defendant was allowed commissions on rentals of $4,005 first awarded the plaintiff, rather than on $1,114 as reported by the referee. In all other respects, the report of the referee was approved and confirmed.

From the judgment thus entered, the defendant appeals, assigning errors.

Sale, Pennell & Pennell, of Asheville, for plaintiff-appellee.

T. A. Uzzell, Jr., and J. M. Horner, both of Asheville, for defendant-appellant.

STACY Chief Justice.

The first exception is to the order of compulsory reference entered in the cause. The appellant states no reason or argument and cites no authority in support of the exception. Hence it is to be taken as abandoned. Rule 28, Rules of Practice, 221 N.C. 562. Moreover, it is without merit. Chesson v. Kieckhefer Container Co., 223 N.C. 378, 26 S.E.2d 904.

Also, it may be noted, the findings of fact, made by the referee and approved by the trial court, are not subject to review on appeal, except where some question of law is involved, as they are supported by competent evidence. Wilkinson v. Coppersmity, 218 N.C. 173, 10 S.E.2d 670; Kenney v. Balsam Hotel Co., 194 N.C. 44, 138 S.E. 349.

The case divides itself into three parts:

I. The Cletrac Tractors

There is no allegation of fraud or misrepresentation in the sale of the Cletracs. The plaintiff relied upon the advice of his former partner in making the purchase. It was a cash transaction. McAden v. Craig, 222 N.C. 497, 24 S.E.2d 1. The amount paid was $9,250. In addition, and as an integral part of the sale, the defendant agreed to put the equipment in firstclass condition for immediate use and to secure leases therefor at current rental prices for at least three months. The defendant was to receive 10% of all rents collected on leases secured by him.

The defendant neglected to put the equipment in first-class condition for immediate use and failed to secure leases for the full first three months, as he had agreed to do, albeit some rentals were collected during this period. As damages for breach of the agreement the plaintiff was awarded the difference between the purchase price and the value of the Cletracs with interest from the date of sale, plus the alleged cost of parts and repairs, plus the full rental value for three months following delivery of the machinery, less 10%...