Int'l Harvester Co v. Carter
Citation | 91 S.E. 840 |
Decision Date | 28 March 1917 |
Docket Number | (No. 284.) |
Court | North Carolina Supreme Court |
Parties | INTERNATIONAL HARVESTER CO. v. CARTER. |
Appeal from Superior Court, Cumberland County; Winston, Judge.
Action by the International Harvester Company against Daniel Carter. Judgment for defendant, and plaintiff appeals. Error.
Cook & Cook and Sinclair, Dye & Ray, all of Fayetteville, and McIntyre, Lawrence & Proctor and McLean, Varser & McLean, all of Lumberton, for appellant.
Robinson & Lyon, Oates & Herring, John G. Shaw, and V. C. Bullard, all of Fayetteville, for appellee.
This is an action on certain notes for the balance due on an engine purchased by the defendant. The only defense involved is that of fraud alleged by defendant to have been practiced on him by plaintiff's agent, who sold defendant the engine, upon the written contract signed by the defendant, set out in the record. This contract describes the engine, with a stipulation against the order being countermanded, and providing that no agent had the power to change the contract or warranty, and providing for notice to be given if the engine should fail to work well, and that a man should then be sent by plaintiff, and that, if such agent could not make it work satisfactorily, then the purchaser should immediately return the engine, and the price paid should be immediately refunded. The answer does not allege that there was any fraud practiced by the defendant in inducing him to sign the contract and notes, but alleges oral misrepresentation by the agent as to the capacity of the engine to pull stumps. The defendant made no contention on the trial that he had complied with the requirement in the contract by giving notice of the defect, or that the plaintiff had failed to send a man in consequence of such notice to remedy the defect.
The plaintiff excepted to the following charge:
This was erroneous; for it eliminated the effect of the...
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