Falco Corp. v. Hood, 7010SC34

• Decision Date: 06 May 1970
• Docket Number: No. 7010SC34,7010SC34
• Citation: 173 S.E.2d 578,7 N.C.App. 717
• Court: North Carolina Court of Appeals
• Parties: The FALCO CORPORATION v. Alvin S. HOOD, d/b/a Hood's Texaco Service.

Page 578

173 S.E.2d 578

7 N.C.App. 717

The FALCO CORPORATION v. Alvin S. HOOD, d/b/a Hood's Texaco Service.

No. 7010SC34.

Court of Appeals of North Carolina.

May 6, 1970.

Coley & Clement, by H. D. Coley, Jr., Raleigh, and Fleming, Robinson & Bradshaw, by Russell M. Robinson, II, Charlotte, for plaintiff appellant.

Dunn & Dunn, by Raymond E. Dunn, New Bern, for defendant appellee.

CAMPBELL, Judge.

Falco assigns as error the charge of the trial judge to the jury as follows:

'Now where there is no express warranty the law implies a warranty and the evidence in this case is to the effect that there was not an expressed warranty made by the Falco Corporation when the property was leased to the defendant Hood and, therefore, I instruct you that the law would imply that there was a warranty to the effect that the car wash equipment which was being leased by Falco to the defendant Hood was reasonably fit for the use and purpose for which it was being leased and which was in the contemplation of both lessor and lessee at the time of the execution of the contract.'

We are of the opinion that this exception is well taken.

The evidence in this case reveals that Hood selected the automobile washing equipment; that Falco never saw this equipment until after it had been delivered to Hood and installed under Hood's supervision; that Hood represented to Falco that the equipment was satisfactory and met with the approval of Hood. The manufacturer's warranty was sent to and delivered directly to Hood. The contractual agreement between Falco and Hood provided:

'TITLE AND SUITABILITY. The Lessor covenants that it is the lawful owner of the Equipment and that Lessee shall peaceably and quietly hold, enjoy, possess and use the Equipment during the term of this lease; provided, however, that the Equipment has been ordered from a supplier selected by Lessee, and Lessor shall not be liable for specific performance of this lease or for damages if, for any reason, supplier delays or fails to fill the order. No warranties, expressed or implied, representations, promises or statements have been made by the Lessor unless endorsed hereon in writing. The Lessee agrees that each Item of Equipment and the installation thereof shall be conclusively deemed approved by and satisfactory to Lessee unless Lessee shall have given Lessor written notice to the contrary not later than five days after the effective date hereof. Lessee agrees that Lessor shall not be liable for any loss, damages or expense caused by the Equipment or the use, maintenance, servicing thereof, or for the loss of use thereof, or for any loss of business or damage whatsoever and howsoever caused.'

Under the terms of this agreement, the parties thereto specifically provided that there were no warranties from Falco to Hood.

'* * * When competent parties contract at arms length upon a lawful subject, as to them the contract is the law of their case.' Suits v. Old Equity Insurance Co., 249...