C. O. Gore v. George J. Ball, Inc.

• Decision Date: 30 July 1971
• Docket Number: No. 89,89
• Citation: 182 S.E.2d 389,279 N.C. 192
• Parties: C. O. GORE, Trading as Gore Warehouses v. GEORGE J. BALL, INCORPORATED.
• Court: North Carolina Supreme Court

Page 389

182 S.E.2d 389

279 N.C. 192

C. O. GORE, Trading as Gore Warehouses v. GEORGE J. BALL, INCORPORATED.

No. 89.

Supreme Court of North Carolina.

July 30, 1971.

Powell, Lee & Lee, by J. B. Lee, Jr., Whiteville, for plaintiff appellee.

Marshall, Williams, Gorham & Brawley, by Lonnie B. Williams, Wilmington, for defendant appellant.

LAKE, Justice.

This transaction having occurred prior to the effective date of the Uniform Commercial Code, the provisions of that Act are not applicable. G.S. § 25--10--101.

Though this action was commenced 3 January 1968, the Rules of Civil Procedure set forth in Chapter 1A of the General Statutes apply. Session Laws of 1967, ch. 954, § 10. Rule 8 provides that a pleading which sets forth a claim for relief, 'shall contain (1) A short and plain statement of a claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief, and (2) A demand for judgment for the relief to which he deems himself entitled.' It further provides, 'All pleadings shall be so construed as to do substantial justice.'

For his first cause of action, the plaintiff alleges in his complaint that he was damaged by his use of seed delivered to him by the defendant, in response to his order, which seed were not the variety ordered by him, but a totally different variety, mislabeled as the variety he ordered, the mislabeling being due to the negligence of the defendant, which negligence was the proximate cause of the plaintiff's damage. The complaint does not make reference to the North Carolina Seed Law, G.S. § 106--277 to § 106--277.28. The first cause of action rests entirely upon allegations of negligence by the defendant.

It is well established that violation of a safety statute is negligence per se. Bell v. Page, 271 N.C. 396, 156 S.E.2d 711. Ratliff v. Duke Power Co., 268 N.C. 605, 151 S.E.2d 641, 21 A.L.R.3d 360; Byers v. Standard Concrete Products Co., 268 N.C. 518, 151 S.E.2d 38; Carr v. Murrows Transfer Co., 262 N.C. 550, 138 S.E.2d 228; Reynolds v. Murph, 241 N.C. 60, 84 S.E.2d 273. The North Carolina Seed Law, supra, is not, however, a safety statute. Evidence of a violation of it is not, necessarily, evidence of negligence. The evidence offered by the plaintiff is not sufficient to support a finding of negligence. It shows that the defendant purchased the seed from a reputable dealer, that its supplier had labeled the seed as being of the variety ordered by the plaintiff and that this mislabeling could not be detected by an examination of the seed. We, therefore, affirm the holding by the Court of Appeals that the trial judge was correct in directing a verdict for the defendant upon the plaintiff's first cause of action.

The statement in the complaint of the plaintiff's second cause of action is by no means a model of clarity and precision as to the theory upon which he relies. However, construing the allegation liberally, as we are required to do by Rule 8 of the Rules of Civil Procedure, it gave to the court and to the defendant notice that the plaintiff intended to prove the making of a contract of sale, a breach of that contract by failure to deliver the seed ordered, a breach of a warranty of fitness of the seed for the purpose for which the plaintiff intended to use them and a failure of consideration. Rule 8(e)(2) permits the pleader to set forth two or more statements of a claim in the same count.

In the statement of the plaintiff's second cause of action, it is alleged that, by reason 'of the failure of consideration and the breach of contract by the defendant,' the plaintiff has been damaged in the amount of $9,966. The allegations constituting the statement of this cause of action make it clear that the alleged damage consisted in the plaintiff's loss of the crop which the would have produced had the contract not been broken. It is quite clear from the allegations that the plaintiff is not seeking a return of the amount paid by him for the seed.

Failure of consideration is a defense to an action brought upon a contract against the party who has not received the performance for which he bargained. It also entitles such party to sue to recover that which he has paid for the performance for which he bargained. Mills v. Bonin, 239 N.C. 498, 80 S.E.2d 365; Swift & Co. v. Aydlett, 192 N.C. 330, 135 S.E. 141; Continental Jewelry Co. v. Stanfield, 183 N.C. 10, 110 S.E. 585; Williston on Contracts, 3d Ed, §§ 814 and 885; Restatement of Contracts, § 399; 17 Am Jur 2d, Contracts, §§ 397 and 399; 17 C.J.S. Contracts § 129. That is, as Professor Williston says in § 818 of his treatise, failure of consideration gives the disappointed party a right to rescind the contract and recover what he has paid or to defend a suit brought against him thereon, for the reason that the contract is a nullity. Obviously, while, in the statement of the second cause of action, the complaint alleges failure of consideration, the plaintiff is not seeking a refund of the price paid by him for the seed on the theory that the contract was a nullity, but is seeking damages for breach of contract by the defendant.

The plaintiff offered in evidence the defendant's catalogue from which the plaintiff selected the variety of seed desired by him, the order blank used by him in ordering these seeds from the defendant, the defendant's invoice accompanying the shipment, and one of the packets in which the defendant delivered the seed to him. Each of these stated that the defendant gave no warranty, express or implied, except that 'to the extent of the purchase price' the defendant warranted that the seed 'are as described on the container;' that is, that the seed so delivered were Heinz 1350 tomato seed, no other descriptive matter appearing on the packet.

In Swift & Co. v. Aydlett, supra, this Court said, 'A vendor of an article of personal property, by name and description, cannot relieve himself of the obligation arising from the warranty implied by law to deliver an article which is, at least, merchantable, or saleable, or fit for the use for which articles of that name and description are ordinarily sold and bought.' Thus, had there been no statement whatever by the defendant with respect to warranty, its acceptance of the plaintiff's order, by the shipment of seed to him, would constitute an undertaking by it to deliver to him the specified quantity of Heinz 1350 tomato seed, and no other.

The defendant's statement on the above mentioned documents that it warranted the seed sold to be as described on the container, i.e., to be Heinz 1350 tomato seed, added nothing to its undertaking in the contract of sale. Its statement in these several documents that it gave no other or further warranty took nothing from that undertaking. The plaintiff, in this action, does not rely upon any further warranty. He simply contends that the defendant did not perform its contract and thereby he has been damaged. One who contracts to sell to another a Jersey cow is liable for damages for breach of contract if he delivers a mule, or even an Angus cow, notwithstanding his statement, in the contract of sale, that he made no warranty as to the qualities of the cow he contracted to sell and deliver. So it is with one who contracts to sell and deliver Heinz 1350 tomato seed and delivers, instead, seed of a completely different type of tomato.

The Court of Appeals was, therefore, correct in its holding that the plaintiff has alleged and has introduced evidence sufficient to permit a jury to find that the defendant committed a breach of its contract by the delivery to the plaintiff of seed not of the kind specified in his order. Failure of the plaintiff to introduce evidence to show a warranty of quality was not sufficient basis for the allowance of the defendant's motion for a directed verdict as to the plaintiff's second statement of his cause of action.

The remaining question relates to the measure of damages recoverable by the plaintiff, assuming the jury should find the defendant did not deliver to him the seed which he ordered.

In the above mentioned 'Limitation of Warranty,' appearing in the catalogue and upon the order blank, the invoice and the seed packet, the defendant stated that it warranted 'to the extent of the purchase price' that the seed delivered were as described on the container. We think the meaning of this statement, assuming it to be part of the contract between the parties, is that the defendant will refund the amount paid by the plaintiff if the defendant delivers a kind or variety of seed different from that specified in the order and, in that event, will pay no more, irrespective of the damage suffered by the plaintiff as the result of such breach of its contract.

Unless the phrase, 'to the extent of the purchase price,' became a part of the contract of sale and is enforceable as such, it does not limit the damages recoverable by the plaintiff for the breach of that contract. A party to a contract may not, by his unilateral declaration, extraneous to the contract, free himself from or limit his liability for damages for his breach of it.

This is not a formal, written contract of sale. The defendant contends that the amount of damages recoverable for its breach of the contract is limited to the purchase price of the seed. This contention is based entirely upon the fact that the defendant caused to be printed in its catalogue, upon the order blank sent out by it with the catalogue, upon its invoice accompanying the shipment of seed and upon the packet containing the seed the alleged limitation. It is not contended that this limitation of the damages recoverable was otherwise called to the attention of the plaintiff. Therefore, unless its location in and upon the above mentioned documents, the size or color of the type and other circumstances, were...