37 S.E.2d 592 (N.C. 1946), 90, Price v. Goodman

Docket Nº:90
Citation:37 S.E.2d 592, 226 N.C. 223
Party Name:PRICE et al. v. GOODMAN.
Case Date:April 10, 1946
Court:Supreme Court of North Carolina

Page 592

37 S.E.2d 592 (N.C. 1946)

226 N.C. 223

PRICE et al.



No. 90

Supreme Court of North Carolina

April 10, 1946

Page 593

[226 N.C. 224] The plaintiffs brought this action to recover the balance due on the purchase price of a quantity of used or second hand steel road forms, used in the construction of concrete roads. They allege that defendant agreed to pay for them cash on delivery at Huntington and Charleston, West Virginia, at 27 1/2¢ per lineal foot, for 10,990 feet, and that they were delivered

Page 594

to defendant's trucks and received by him. Subsequently, defendant paid $1,500 on the purchase price, and was credited with twelve of the forms he claimed were unusable, leaving a balance due of $1,489.25.

The defendant answered, partially admitting and partially denying the allegations of the complaint, and setting up as a further defense and counterclaim in which he referred to certain 'Blawknox' forms sold to him and averred that 'said sale carried an implied warranty that said forms were fit and suitable for the purposes for which they were designed and manufactured, and that same were usable for said purposes as Blawknox forms,' whereas they were in fact not so suitable or usable, but had no value except as junk. He therefore pleads a breach of such implied warranty and specifies his damages as a result of the breach to be as follows: $695.21 for transportation of the forms from West Virginia to Camp Claiborne, Louisiana; $1,500 paid on the purchase price; [226 N.C. 225] $156.23 handling charges, totalling $2,351.44, with interest, less a credit of $500, salvage or junk value of the forms. The prayer for judgment is in accord with these alleged items of damages.

To this plaintiffs replied alleging, inter alia, that defendant had had the forms in his possession for more than two months without any complaint except as to the twelve forms credited, and had paid $1,500 on the purchase price; that defendant had caused an inspection to be made of the forms before closing the trade, and any defects in them were open, obvious and patent, and denied that there was any warranty, or breach thereof.

On the trial only two witnesses testified: J. W. Price on the part of the plaintiffs, and defendant in his own behalf. This, with exhibits, comprised the evidence.

Plaintiffs' evidence tended to show as follows:

Plaintiffs reside in Huntington, W. Va., and are engaged in highway and railroad construction. Goodman called J. W. Price, of the firm, on May 17, 1943, and asked if they had some used concrete road steel forms which they were willing to sell, and Price answered affirmatively. Asked what kind they were, Price informed of their dimensions, and they agreed on a price of 27 1/2¢ per lineal foot on plaintiffs' lot in West Virginia, where defendant's trucks were to pick them up. (This was confirmed by letter of May 18, introduced in evidence).

Defendant offered to send his check as each truck load was picked up, but Price suggested that it might be better to wait until he got all the forms and make one payment for the whole sale, upon which they agreed.

Defendant sent his trucks and hauled away 10,900 feet of steel forms, the subject of the agreement, and plaintiffs sent him an invoice for payment on June 10. (Invoice was introduced). On this invoice was credited 12 forms which Goodman had reported as unusable. The invoice showed a balance due of $1,489.25. Mr. Goodman, the witness stated, understood that the forms were used forms and in no way guaranteed. Plaintiffs did not know what they were going to be used for, and nothing was said about what kind they were.

After repeated attempts to get payment for the forms by letter, and by wire, the defendant wrote a letter in which he complained that his man reported that 300 of the forms were not suitable for repair and suggested that he meet Goodman at his office on August 25. Witness came on August 26. At...

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