L. Harvey and Son Co. v. Jarman

• Decision Date: 06 August 1985
• Docket Number: No. 848SC1087,848SC1087
• Citation: 333 S.E.2d 47,76 N.C.App. 191
• Parties: , 42 UCC Rep.Serv. 107 L. HARVEY AND SON COMPANY, T/A Onslow Implement Company v. Jerry E. JARMAN and wife, Edna L. Jarman (Also known as Polly Jarman). v. JARVIS BROWN.
• Court: North Carolina Court of Appeals

Page 47

333 S.E.2d 47

76 N.C.App. 191, 42 UCC Rep.Serv. 107

L. HARVEY AND SON COMPANY, T/A Onslow Implement Company v. Jerry E. JARMAN and wife, Edna L. Jarman (Also known as Polly Jarman). v. JARVIS BROWN.

No. 848SC1087.

Court of Appeals of North Carolina.

Aug. 6, 1985.

Barnes, Braswell & Haithcock, P.A. by Henson P. Barnes, Goldsboro, and Perry, Perry & Perry by Warren S. Perry, Kinston, for plaintiff-appellee.

Lee, Hancock, Lasitter and King by John W. King, Jr., New Bern, for defendants-appellants.

BECTON, Judge.

I

Plaintiff, L. Harvey and Son Company (Harvey), filed this suit to recover on a promissory note given for the purchase of fertilizer, executed by defendants Jerry Jarman (Jarman or Mr. Jarman) and Edna Jarman (Mrs. Jarman), plus interest and attorney's fees. The Jarmans' Answer included a number of affirmative defenses and counterclaims. The Jarmans also filed a third-party Complaint against Jarvis Brown, alleging that Brown was personally liable to them for breach of an express warranty on the fertilizer, if in making the warranty, Brown exceeded the scope of his agency relationship with Harvey.

An order was entered dismissing the Jarmans' first counterclaim, and the Jarmans' motion for a change of venue was denied. The Jarmans moved for summary judgment on the note, which was also denied. However, their alternative motion for partial summary judgment on the issue of interest on the note was allowed.

When the case came on for trial, Harvey introduced the note into evidence and rested. After the Jarmans had put on their evidence, the record reflects a discussion between the trial judge and counsel concerning the dismissal of one or more of the Jarmans' counterclaims, with the trial judge reserving his ruling on the motion to dismiss. Harvey put on rebuttal evidence. The trial judge then allowed the motion to dismiss all of the Jarmans' counterclaims, and also directed a verdict in favor of Harvey on the note.

Judgment was entered, awarding Harvey the amount of the note plus interest and attorney's fees. The Jarmans appeal, contending that (1) it was error to dismiss all of the Jarmans' counterclaims, when no motion was made to dismiss their warranty counterclaims, (2) it was error to direct a verdict for Harvey on the note when Harvey had not moved for a directed verdict, and (3) it was error to award attorney's fees. We conclude that it was not error for the trial judge to dismiss the counterclaims, nor was it error to direct a verdict in Harvey's favor on the note. The trial court did, however, err in awarding attorney's fees, and the judgment is to be modified accordingly.

II Factual Background

Jerry Jarman and Edna Jarman, husband and wife, are farmers. In the spring of 1980, Jerry Jarman purchased liquid fertilizer for that year's corn crop and other farm supplies from Harvey. He testified that he spoke with two of Harvey's employees, A.W. Turner and Jarvis Brown, concerning the purchase of fertilizer. Jarman testified that both Turner and Brown told him that the recommended liquid fertilizer, "Super Kic," would work as well as dry fertilizer, and that Turner recommended an application of "Super Kic" at a concentration 400 pounds per acre. Jarman testified that he purchased the recommended amount of "Super Kic" from Harvey, and that in early April 1980, Turner, using company equipment, applied the liquid fertilizer. Jarman testified that Turner applied "Super Kic" liquid fertilizer to 201 of the 373 acres of corn Jarman planted that year. He testified that when Turner ran out of "Super Kic," Turner recommended an application of dry fertilizer at a concentration of 500 pounds per acre. Jarman agreed, and the dry fertilizer was applied to the remaining acres. Turner testified that at least some of Jarman's land was not properly prepared, as it had "a lot of tall weeds in it." Jarman testified that he was present when Turner spread the fertilizer, and it seemed to him that Turner did a good job.

Jarman testified that he followed the identical procedure in preparing and planting all of the 373 acres, except that in the fields in which "Super Kic" liquid fertilizer was used, weed killer was mixed in with the fertilizer. Turner testified that these herbicides would not affect the effectiveness of the fertilizer.

Jarman testified that in the fields in which dry fertilizer was used, he had a good crop of corn in 1980, averaging 90 bushels of corn per acre; however, in the fields fertilized with "Super Kic," the corn quickly turned yellow. Although liquid nitrogen was ultimately used on the "Super Kic" fields so that the corn turned green and grew, these fields yielded very little corn, averaging 25 or fewer bushels per acre.

Turner testified that the "Super Kic" liquid fertilizer came premixed from a common storage tank and that Ed Greer had his 1980 corn crop fertilized with "Super Kic" from that tank the same week as the Jarmans. Greer testified that he applied additional fertilizer to the fields that had been fertilized with "Super Kic" at 400 pounds per acre, and he achieved a crop yield of 100 bushels of corn per acre that year.

Brown testified that he first received a complaint about Mr. Jarman's corn crop in early May 1980, when Jarman complained about weeds in his fields. Brown stated that he and the county agent went out to look at the land. Turner testified that the first time he knew something was wrong with Jarman's corn crop was during spring or summer 1980, when he and his wife rode through the Jarmans' farm. Turner stated that although he was sure he stopped and talked with Mr. Jarman, he never discussed any problems with anyone at Harvey. Jarman testified that he discussed his problems with the corn crop with Turner, when he first became aware of them, and that a week or two later he told Brown that his "corn was sitting there yellow and wasn't growing a bit."

There was uncontradicted evidence that there was an open account between Harvey and Jerry Jarman in Jarman's name, and that in December 1980, Jerry and Edna Jarman signed a promissory note in the amount of $22,638.93, which represented the balance owed on the account for both "Super Kic" fertilizer and other items purchased from Harvey. Brown testified that it was Harvey's policy to have customers with outstanding accounts sign promissory notes at the end of the year. As of June 1981, a balance of $10,148.77 remained on that account, which Jarman testified represented the approximate amount due for "Super Kic" fertilizer. On 29 June 1981, Jerry and Edna Jarman signed a second promissory note for $10,148.77, which note is the subject of this action. Harvey's retired vice-president testified that no payments have been made on this note.

III

The Jarmans asserted four counterclaims in their Answer. The record shows that, after the presentation of Harvey's rebuttal evidence, the trial judge dismissed "all" of the counterclaims. The Jarmans contend that this was error, as Harvey had only moved to dismiss their third counterclaim, which was based on negligence. We disagree.

Harvey apparently originally made the motion to dismiss at the close of the Jarmans' evidence. No transcript of the trial proceedings was filed with this Court, and the pertinent portion of the printed record is incomplete. Significantly, the caption "MOTION BY MR. PERRY:" [Harvey's counsel], appears, but what counsel actually said does not appear. A few lines later appears: "MR. KING: [Jarman's counsel] Arguments Opposing Motion To Dismiss." Again, what counsel actually argued is missing. Therefore, we have no way of knowing which counterclaims were referred to in the motion.

The longstanding rule is that there is a presumption in favor of regularity and correctness in proceedings in the trial court, with the burden on the appellant to show error. In re Moore, 306 N.C. 394, 293 S.E.2d 127 (1982), app. dism., 459 U.S. 1139, 103 S.Ct. 776, 74 L.Ed.2d 987 (1983). Accord State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968) (reviewing court not required to, and should not, assume error by trial judge when none appears in the record before the reviewing court). Here, in the absence of a complete record, we presume a proper motion to dismiss all of the Jarmans' counterclaims was made. Accordingly, we turn to the merits.

The first counterclaim, relating to the Truth-In-Lending Act, had been dismissed prior to trial by order of the court. The second counterclaim, concerning the genuineness of signatures, was obviously dropped in that the Jarmans stipulated to having signed the note. As to the third counterclaim, based on Harvey's negligence in mixing and spreading the fertilizer, the Jarmans concede that no evidence was adduced to support a claim for negligence, and they do not argue this point in their brief. See N.C.Rules App.Proc., Rule 28(a) (questions raised but not briefed deemed abandoned).

The fourth counterclaim is based on allegations of breach of express and implied warranties, specifically, that Harvey breached an express warranty that "Super Kic" was an excellent fertilizer and suited for the Jarmans' corn, and an implied warranty, in that the fertilizer was defective and hence not fit for the ordinary purposes for which it was intended. In determining whether these warranty counterclaims were correctly dismissed, the case of Potter v. Tyndall, 22 N.C.App. 129, 205 S.E.2d 808, cert. denied, 285 N.C. 661, 207 S.E.2d 762 (1974), is instructive. In that case, a seller of fertilizer sued on an account and the buyer counterclaimed against the seller and its agents, alleging that the agents had falsely represented to him that the fertilizer was a good one for use on tobacco, when it, in fact, caused his crop to wither and die. The trial court dismissed the counterclaim. The sole issue on appeal was whether the buyer's counterclaim could be maintained on theories of express or implied warranty. Crucial to this Court's resolution...