H.M. Wade Mfg. Co. v. Lefkowitz

• Citation: 168 S.E. 517,204 N.C. 449
• Decision Date: 29 March 1933
• Docket Number: 466.
• Parties: H. M. WADE MFG. CO. v. LEFKOWITZ.
• Court: United States State Supreme Court of North Carolina

168 S.E. 517

204 N.C. 449

H. M. WADE MFG. CO. v. LEFKOWITZ.

No. 466.

Supreme Court of North Carolina

March 29, 1933

Appeal from Superior Court, Mecklenburg County; MacRae, Special Judge.

Action by the H. M. Wade Manufacturing Company against Abe Lefkowitz, trading and doing business as the Mears Jewelry Company. From a judgment for plaintiff, defendant appeals.

New trial.

Whether seller of store fixtures by conduct of its general agent waived clauses of sales contract providing use of fixtures for five days constituted acceptance, and that claims for defects must be presented within ten days, held for jury.

The plaintiff brought suit against defendant for the sum of $1,820, alleging that on or about September 26, 1930, the plaintiff and the defendant entered into a written contract in which the plaintiff contracted and agreed to manufacture and furnish certain store fixtures for the defendant. A portion of the purchase price was to be paid in cash upon delivery of the fixtures, and the balance of $2,582 was to be secured by a chattel mortgage upon the same. The defendant made payments from time to time until the claim was reduced to a balance of $1,820.

The defendant admitted the agreement to purchase the fixtures but alleged that the plaintiff had "agreed and warranted to deliver and install in the defendant's store the *** fixtures and materials, *** and represented, warranted and agreed that the same would be of first-class in quality, and would be installed in a careful workmanlike manner; that in violation of said agreement, the plaintiff failed and refused to install furniture, fixtures and material of the character and in the manner which the plaintiff had agreed to furnish *** in that the glasses and tops of two of the show cases were improperly fixed *** and projected beyond the line of the other show cases, *** and that four of the said show cases and all of the panelling had ugly dark stains scattered all over the surface thereof; *** that too much glue had been applied with the result that the said glue had exuded upon the said show cases *** to cause ugly dark splotches and stains upon the surface thereof; that the show case doors were improperly made and installed, the construction *** being such that there are large cracks and openings between the said show cases and the said doors with the result that dust, dirt and insects get in the inside of the show cases that the doors to the show cases were affixed *** in such a loose, careless and unworkmanlike manner that they had a tendency to fall to the floor when subjected to the slightest sort of jar or movement." By reason of the breach of contract in various particulars, as described in the answer the defendant asks for damages in the sum of $2,000 by way of offset.

The written contract referred to in the pleadings, among other provisions, contains the following, in substance: (1) That the entire agreement for the purchase of the goods is stated in the contract and is not modified by any verbal agreement. (2) The title to the fixtures is to remain in the vendor until the purchase price is paid. (3) It is understood that the use of the furniture described in this contract or any portion thereof for a period of five days constitutes acceptance of same as complying with all the terms and specifications of this contract, and all claims for damages errors, or shortage not filed within that time are thereby waived. (4) No salesman or agent of the company shall have the right to change or modify this contract.

The plaintiff offered evidence tending to show that the fixtures were manufactured in accordance with the specifications agreed to by the defendant, and that delivery was made about November 27, 1930, and that upon delivery the defendant paid a certain sum in cash and executed nineteen notes for the balance of the sales contract. The first note was for $152 due December 24, 1930, and the other notes of $140 each fell due each thirty days thereafter.

The defendant testified that the fixtures were brought to the store by the agent of plaintiff on or about November 23 1930, and that said agent refused to deliver the property or to permit an inspection thereof until the notes and the contract had been signed. Thereupon the defendant telephoned the general manager of plaintiff and protested the refusal to deliver. Referring to the conversation with plaintiff's general manager, defendant said: "I asked him what assurance he would give me that the fixtures were as I bought them. He said: 'You know H. M. Wade Manufacturing Company will make good.' He assured me that I was getting exactly what I had bought and not to have any worries about it. With that assurance I decided to sign the papers." After the papers were signed, the agent for the plaintiff began installing the fixtures, and this work was completed about December 3, 1930. The defendant complained to the agent installing the fixtures upon the ground that they were not properly manufactured or installed. The defendant testified: "It seems that I saw Mr. Webb (general manager of plaintiff), just a few days after that. I saw Mr. Webb about a week after December 3. Mr. Webb came in the store and said he was sorry we had had any controversy and he wanted to see what was wrong. I first directed his attention to the glue or cement running out of the cases which got all over our clothes. Cement was oozing out of the glass top inside of the cases and all over the glass, and it was impossible to keep it off our clothes. I next directed his attention to the glass projecting out of the two circular cases. *** Then I directed his attention to the bad, dark spots below the moulding. *** I asked him about a chair and a little table for those front cases. *** I told him they were short. *** I directed his attention to the glass mirror against the wall; I think it was chipped. I also directed his attention to those small doors. I told him they were not fitting good at...