Int'l Harvester Co v. Carter

Citation91 S.E. 840
Decision Date28 March 1917
Docket Number(No. 284.)
CourtNorth Carolina Supreme Court

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.

CLARK, C. J. 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:

"The plaintiff contends that the contract upon its face, signed by the defendant, shows that no such representations (as to stump pulling) as claimed by defendant were made. That would be true, and you would be bound by that if this suit was upon the warranty, but as it is not a suit upon the warranty, but is a suit upon the fraud, if any was committed, then the plaintiff gets no benefit from anything that appears upon the face of the contract so far as the representations were concerned. It is not a suit upon the warranty, but suit based upon alleged fraud."

This was erroneous; for it eliminated the effect of the...

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