Burbage v. Atlantic Mobilehome Suppliers Corp.
Decision Date | 05 June 1974 |
Docket Number | No. 7429DC153,7429DC153 |
Citation | 21 N.C.App. 615,205 S.E.2d 622 |
Parties | , 14 UCC Rep.Serv. 1129 Thomas W. BURBAGE, Plaintiff, v. ATLANTIC MOBILEHOME SUPPLIERS CORPORATION, Defendant and Third-PartyPlaintiff, v. REESE PRODUCTS, INC., Third-Party Defendant. |
Court | North Carolina Court of Appeals |
Ramsey, Hill, Smart & Ramsey by Allen Van Turner, Brevard, for plaintiff-appellee.
Morris, Golding, Blue & Phillips by James F. Blue, III, Asheville, for defendant-appellant.
Roberts & Cogburn by Landon Roberts, Asheville, for third party defendant-appellee.
The plaintiff bases his claim upon the breach of an implied warranty by defendant Atlantic. In 1965, when North Carolina enacted the Uniform Commercial Code, the long accepted concept of implied warranty in sales transactions was codified. G.S. § 25--2--314 provides an implied warranty of merchantability with respect to goods sold by merchants. In order to effectively assert a claim under the statute, the plaintiff must prove the giving of the warranty, the breach of that warranty, and damages resulting to him as a proximate result of the breach. Douglas v. Mallison, 265 N.C. 362, 144 S.E.2d 138 (1965); Uniform Commercial Code, Whie and Summers, Sec. 9--1, p. 272 (1972). We do not feel that the plaintiff has satisfied this burden.
In the case of Hanrahan v. Walgreen Co., 243 N.C. 268, 90 S.E.2d 392 (1955), the plaintiff brought an action for breach of warranty against the retailer of a hair rinse which she alleged caused damage to her scalp. No analysis of the hair rinse was made. The only showing was the use of the rinse and a severe scalp infection which followed. In affirming the nonsuit granted to the defendant at the close of the plaintiff's evidence, the court held that the mere use of the product and the damage were insufficient to submit the matter to the jury. Without an analysis of what was in the hair rinse and what effect it had on the plaintiff, the cause of the damages was purely speculative, and the suit iupleaded estoppel as a bar to plaintiff's action,
In the instant case the plaintiff admitted that he did not read the instructions furnished with the trailer hitch. He further admitted that he knew the tongue weight should be between 350 and 525 pounds, but he stated that he picked up the tongue and placed it on the ball. Whether the breaking of the trunnion was caused by a defect in the part, or by the improper load distribution or connection, is pure speculation and...
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...result. Tennessee-Carolina Transportation, Inc. v. Strick Corp., 286 N.C. 235, 210 S.E.2d 181 (1974); Burbage v. Atlantic Mobilehome Suppliers Corp., 21 N.C.App. 615, 205 S.E.2d 622 (1974)." Morrison v. Sears, Roebuck & Co., 319 N.C. 298, 301, 354 S.E.2d 495, 497 (1987) (quoting Cockerham v......
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