Brooks Equipment & Mfg. Co. v. Taylor
| Citation | 55 S.E.2d 311,230 N.C. 680 |
| Decision Date | 12 October 1949 |
| Docket Number | 235 |
| Parties | BROOKS EQUIPMENT & MANUFACTURING CO. v. TAYLOR. |
| Court | United States State Supreme Court of North Carolina |
The plaintiff brought action on an installment promissory note in the sum of $4,342.61, subject to a credit of $1,809.40, leaving a balance of $2,513.55, with interest and filed complaint in the usual form without revealing the consideration or detailed reference to the security it mentions.
The defendant, answering, admitted the execution of the note, but averred that it was procured through fraud and sets up the circumstances he denominates as fraud in a further defense,--'cross-action and counterclaim ' He alleges, in substance that the note represented the purchase price of a Caterpillar tractor purchased from plaintiff corporation under the inducement of false and fraudulent statement of the sales agent as to its condition which plaintiff undertook to investigate and report, and that he was induced to make installment payments on the machine after discovery of its defective condition on the promise that plaintiff would remedy the same and put it in good condition.
He alleges a total failure of consideration by reason of the defective condition of the tractor and says that plaintiff should not recover any sum of its claim. He alleges that he has been compellee to spend approximately $2,800 in an effort to get the tractor to do his work, upon which he concedes a credit of $500, the total amount earned by the tractor while in his possession, and asks judgment for $6,257.41 due on his counterclaim.
In reply the plaintiff sets up in detail the circumstances as it contends attended the purchase of the tractor. It is alleged that the defendant had an opportunity to inspect the tractor while in operation and did so inspect it; denies that plaintiff sold the machine to defendant and avers that it was sold to defendant by one Lee Lambert, 'who has no connection with the plaintiff except as a customer, and that by reason of his indebtedness to plaintiff he caused the note sued on to be made payable to plaintiff. ' It denies any liability in the matter; denies that it undertook to recondition the tractor or check its condition, but avers that it was employed to make certain alterations and to do so at the expense of the defendant.
On the trial plaintiff introduced the note sued upon and also a conditional sales or title retention contract given in security for the note, in which contract the plaintiff appears as the original owner and seller, to whom the purchaser was solely obligated.
J J. Lannon, assistant sales manager, testified that defendant came to see him about buying a Caterpillar tractor, and that the company at the time did not have one in its possession. Over objection the witness was permitted to testify (a) that the plaintiff had a customer who had one, (b) that this customer, Lee Lambert, was indebted to plaintiff.
Mr. Taylor and Mr. Davis went out from Knoxville and saw the tractor in operation, 'working on the stockpile on Lambert Brothers' job, feeding the feeder of a black top plant. ' After watching the feeder about 15 minutes, Mr. Davis operated the tractor, or tried to do so, and after it was tried out Mr. Taylor bought the machine.
On cross-examination: 'We watched Mr. Davis operate, or try to operate the machine for 10 or 15 minutes,' and witness then took the machine to Knoxville. Mr. Taylor wanted the blades extended---it was not repairs; also lights were put on.
G. R. Marshall, with whom the note had been discounted, testified as to payments made on this note, giving dates and amounts.
W. B. Helsely, member of plaintiff's company, testified that on failure of Taylor to satisfy the note he paid the balance at the bank and took it up. He exhibited paid check in the sum of $2,513.55, as used in the exchange. Mr. Taylor made no further payments on the 'repurchased' note. Plaintiff rested.
The defendant demurred to the evidence and moved for judgment of nonsuit, which was declined. Defendant excepted.
At this point plaintiff demurred ore tenus to defendant's counterclaim and cross-action on the ground that fraud had not been sufficiently alleged. The court withheld its ruling; as stated that the jury would be excused and the defendant permitted, in its absence, to introduce evidence in support of his contentions. Thereupon the jury retired and the defendant presented substantially the following evidence in support of his claim:
Fred Taylor, the defendant, testified that he had a conversation with Mr. Lannon, plaintiff's sales agent, at Knoxville in 1947. He told Mr. Lannon of his need for a tractor and of the work it was intended to do. At Lannon's suggestion he went out some distance from Knoxville and looked at a tractor in operation which seemed to be pushing up gravel through the shovel, loading up trucks at a gravel pile. 'We looked the tractor over and I told Mr. Lannon I knew nothing about a tractor but I would buy it if he would take it back to Knoxville and check it and see in what condition it was. The price was to be $6,244.11. Mr. Lannon said it was a great distance from Knoxville and would cost money to take it back and check it and see what condition the machine was in. Defendant told him he was willing to pay to find out what condition the tractor was in and that he also wanted the blades made wider. He paid Lannon $100 at the time and Lannon agreed to take it back and check it. About three days later Charlie Hughes called defendant and told him he had some papers from the Brooks Equipment Company for him to sign. Defendant told Mr. Hughes he did not want to sign the papers at the time because they had promised to take the tractor into the shop and check its condition. While they were talking about the tractor Mr. Davis had said there was something wrong about the hoist, the cutting clutch and some other part. This was called to Mr. Lannon's attention. Mr. Hughes got the papers the second or third day and defendant instructed him to hold them until he could ascertain whether or not the equipment company had checked the tractor as they had promised to do. Defendant called up later and inquired of Lannon if they had checked the tractor and was informed they had. He asked him what condition it was in and Lannon said it was Defendnat asked him about the hoist. Lannon said it was office and signed the papers.
The equipment company still lacked a little work in widening the blades. Defendant was told he could have the tractor on a certain day. Defendant sent a 'float' (motor carrier) for the tractor which Lannon said was ready to go. Then defendant again called Lannon and inquired what condition the tractor was in, was it all shaped up and ready to go, and was told that it was. This statement was confirmed by the head mechanic at Lannon's request.
The defendant then let Davis take charge of the tractor and sent to the plaintiff a down payment of $2,148.01. The tractor was sent to Virginia where Taylor was to have it employed on a rental basis and an attempt made to put it into service. When the tractor was delivered in Virginia it had to be 'dragged off the float' or carrier there, 'because they couldn't get the blades up. ' When the engine would start up
Examination by the court: Defendant testified that he offered the machine back to the Brooks Company, notified them 10 or 15 days after the trade the machine was not what he wanted. He tried to get the machine to work before he said anything to them; had the hoist and the side cylinders taken off and sent them to the Marion Machine Shop and had the cylinder honed out and new pistons made for it. The piston rods had pulled out. He finally found that it couldn't be used; and the contractor who had rented it ordered it off the job. He notified the plaintiff and received a letter from it to the effect that the tractor belonged to Mr. Lambert and that the equipment company could do nothing about it; that he would have to go back on Mr. Lambert.
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