Aldridge Motors v. Alexander

• Decision Date: 08 June 1940
• Docket Number: 740.
• Parties: ALDRIDGE MOTORS, Inc., v. ALEXANDER.
• Court: North Carolina Supreme Court

9 S.E.2d 469

217 N.C. 750

ALDRIDGE MOTORS, Inc., v. ALEXANDER.

No. 740.

Supreme Court of North Carolina

June 8, 1940

This is an action brought by plaintiff against the defendant to recover from defendant damages on an implied contract in the sale of a 1938 model Ford Tudor Deluxe Sedan, on the ground that the said automobile was so defective in electrical materials and workmanship that it ignited on the night of February 22, 1938, and burned up, due to the defect in its electrical materials and workmanship and that the said automobile had proven to be utterly unfit for the use for which it was sold and purchased.

The statement of facts as set forth in the complaint by plaintiff, are substantially as follows: Aldridge Motors Inc., the plaintiff in this action, was engaged in the business of buying and selling automobiles during the year 1937. On May 12, 1937, and prior thereto, the defendant, S P. Alexander, trading as Alexander Motor Company, was the local Ford dealer and on said date the plaintiff and the defendant entered into a contract whereby Alexander Motor Company agreed to sell to Aldridge Motors, Inc., Ford passenger cars, trucks and parts for resale to the retail trade. This agreement was approved by Ford Motor Company. Under the terms of this agreement the plaintiff was required to keep a record of the sale of Ford motor vehicles sold by it and to report all sales made by it to the defendant and to cooperate with the policies of the company in furthering the interests of owners of Ford automobiles.

On December 24, 1937, the plaintiff purchased from the defendant a 1938 Model Ford Tudor DeLuxe Sedan and immediately sold said automobile to Lokie G. Martin for $875.54 and directed the defendant to deliver said car direct to Mr. Martin. The defendant complied with said instructions and delivered the said car to Mr. Martin on December 24, 1937. The automobile in question was sold to the plaintiff by the defendant with an implied warranty that it was free from defects in workmanship and materials and that it was reasonably fit for the use for which it was sold and purchased.

That within a week from the time the automobile was delivered to Mr. Martin by the defendant, Mr. Martin made complaint to the plaintiff that the electrical materials and workmanship in said automobile were so defective that the battery in said car became discharged and that the starter would not operate. That the electrical materials and workmanship in said car were so defective that from December 24, 1937, to February 22, 1938, Mr. Martin put eight fully charged batteries in said automobile even though said car had been driven less than 2,000 miles during said time.

That on the night of February 22, 1938, the said automobile ignited and burned up due, as alleged in the complaint, to the defect in its electrical materials and workmanship. It is alleged in the complaint that the car was utterly unfit for the use for which it was sold by the defendant and was a total loss other than a salvage value of $50. That subsequent to February 22 1938, Mr. Martin made demand on the plaintiff for $875.54, the full purchase price of said automobile. The plaintiff refused to pay Mr. Martin the purchase price of said car and notified the defendant of the claim and demand made by Mr. Martin. That on June 27, 1938, Lokie G. Martin instituted suit in the Superior Court of Durham County against Aldridge Motors, Inc., the plaintiff in the present action, for $875.54, and for $193.10 for the loss of his garage. Aldridge Motors, Inc., notified Alexander Motor Company that said action had been instituted. Aldridge Motors, Inc., employed counsel and defended the suit. The case was tried during the March Term, 1939, of the Superior Court of Durham County, and in said action issues were submitted to and answered by the jury as follows:

"1. Was the Ford DeLuxe Sedan automobile sold by the defendant, Aldridge Motor Co., to the plaintiff, as alleged in the complaint, defective in material or workmanship at the time of its delivery to the plaintiff so that it was not reasonably fit for the use for which it was intended, and in breach of the implied warranty? Ans: Yes.

"2. If so, was the defective material or workmanship the cause of the destruction of the automobile, as alleged in the complaint? Ans: Yes.

"3. In what sum, if any, is the plaintiff entitled to recover of the defendant? Ans: $775.54."

That on the issues as answered by the jury a judgment for $775.54 and costs was rendered against Aldridge Motors, Inc. Aldridge Motors, Inc., paid the full amount of the said judgment and costs in the sum of $32.70, on April 1, 1939. Whereupon the plaintiff in this present action made demand on the defendant in this action for the amount of the judgment and costs less the sum of $50.00--the actual salvage value of the automobile. Alexander Motor Company refused to pay said amounts to the plaintiff and thereupon this action was instituted.

The defendant did not demur to the complaint in the court below, but filed a motion to strike all of the allegations contained in paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the plaintiff's complaint. The motion was duly heard and denied except as to a part of paragraph 16 of the complaint. From the order entered denying the motion, the defendant appealed to the Supreme Court.

Hedrick & Hall, of Durham, for appellant.

W. H. Hofler and Marshall T. Spears, both of Durham, for appellee.

CLARKSON Justice.

The defendant in the court below made a motion to strike out all the allegations in the complaint, as follows: Paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19. The court below refused the motion of defendant to strike out the above paragraphs of the complaint with the exception of the following: "The Court is of the opinion that the issues as set out in paragraph 16 of the complaint should be stricken from said paragraph." We think the court below correct in its decision.

The defendant in his brief and in this court demurred ore tenus to the complaint.

In addition to the question on the motion to strike, there is the further question for our decision: Does the complaint state facts sufficient to constitute a cause of action? We think so. The authorities dealing with the sufficiency of the complaint also disposes of the question raised on the motion to strike.

In Snipes v. Monds, 190 N.C. 190, 191, 129 S.E. 413, it is held: "Even after answering in the trial court, or in this court, a defendant may demur ore tenus, or the court may raise the question ex mero motu that the complaint does not state a cause of action. Garrison v. Williams, 150 N.C. [674] 675, 64 S.E. 783." Seawell v. Cole & Co., 194 N.C. 546, 547, 140 S.E. 85; Key v. Chair Co., 199 N.C. 794, 796, 156 S.E. 135. The defendant was within his right when he demurred ore tenus.

Plaintiff and defendant were dealers-- the plaintiff purchased its cars for resale. The plaintiff was required to make a report of all sales to the defendant. Black's Law Dictionary defines a dealer, as follows: "A dealer, in the popular, and therefore in the statutory, sense of the word, is not one who buys to keep, or makes to sell, but one who buys to sell again."

In Swift & Co. v. Aydlett, 192 N.C. 330, 334, 335, 135 S.E 141, 143, it is held: "The doctrine of implied warranty in the sale of personal property is too well established in this jurisdiction now to be drawn in question. It should be extended rather than restricted. Poovey v. Sugar Co., 191 N.C. 722, 133 S.E. 12; Swift & Co. v. Etheridge, supra [190 N.C. 162, 129 S.E. 453]. The harshness of the common-law rule of caveat emptor, when strictly applied, makes it inconsistent with the principles upon which modern trade and...