Murray Co. v. Broadway & Langston

• Citation: 96 S.E. 990,176 N.C. 149
• Decision Date: 09 October 1918
• Docket Number: 230.
• Parties: MURRAY CO. v. BROADWAY & LANGSTON.
• Court: North Carolina Supreme Court

96 S.E. 990

176 N.C. 149

MURRAY CO. v. BROADWAY & LANGSTON.

No. 230.

Supreme Court of North Carolina

October 9, 1918

Appeal from Superior Court, Lenoir County; Calvert, Judge.

Action by Broadway & Langston against the Murray Company. Judgment on verdict for plaintiff, and defendant appeals. Affirmed.

The action was to recover the balance due on the last note given on purchase price of a ginning outfit, sold by plaintiff to defendant. Defendant denied liability and set up a counterclaim in excess of any balance due. On issues submitted, there was verdict for plaintiff for $183.95, the balance due on the purchase price. Judgment for plaintiff and defendant excepted and appealed.

Where contract for sale of cotton gin expressly stipulated that no agreement would be recognized unless written in the contract the purchaser in action for the price could not counterclaim for breach of warranty in that the gin would not perform the work required with the engine purchased by him from a different company upon oral recommendation and statement of plaintiff's agent that such engine and such gin would perform certain work.

Rouse & Rouse, of Kinston, for appellant.

J. F Liles, of Kinston, for appellee.

HOKE J.

The evidence on the part of plaintiff tended to show: That in April, 1914, he sold and delivered to defendant a ginning outfit consisting of two gins, elevator, press, and necessary equipment for the sum of $1,483.72, $516.92 being paid in cash, and the balance due and payable, respectively on November 15, 1914, and November 15, 1915. That the first note has been paid off and discharged and payments made on the second, leaving a balance due thereon of $183.95. That, soon after the sale had, the machinery was delivered and installed, and later defendants gave to plaintiff a certificate in terms as follows:

"The Murray Company, Atlanta, Georgia.--Gentlemen: This is to certify that the machinery sold the undersigned on contract 538 has been erected in good workmanlike manner in our plant. The same is complete, is in good order and in accordance with the terms of the contract and is hereby accepted. We have settled in full with your Mr. Frazier the sum of $80.00 for the erection of the machinery" (making it more compact).

That the contract between the parties was in writing, and same contained, among other stipulations, the following:

"If the engine or boiler is not furnished by the Murray Company, then we agree to provide motive power of sufficient capacity to drive machinery specified herein (the Murray Company to be held in no manner responsible if insufficient) and arrange to run the line of shaft the speed required by the Murray plans."

And at the close of the contract:

"It is hereby expressly agreed that the above and foregoing is the exact and entire contract between the purchaser and the Murray Company and that no agreement or understanding, verbal or otherwise, will be recognized unless specified in this contract which includes the warranty as above stated."

Defendants, admitting the purchase, delivery, and use of the machinery and that there was a balance due on the face of the notes, alleged by way of counterclaim and offered evidence tending to show that, at the time of the purchase and as an inducement thereto and as a part of the consideration of the same, plaintiff's agent in charge of the sale had reported to defendants that a certain 35 horse power kerosene engine, made by the International Harvester Company and sold by one H. H. Grainger, would properly and sufficiently operate said ginning plant and outfit, and orally contracted and agreed that said outfit, when operated by said engine, would have the capacity to gin and would gin daily 25 to 30 bales of lint cotton and that the power furnished would be ample for the purpose; that, in reliance upon said representation and contract said engine was procured and the gins, etc., operated therewith, but that the same had never been sufficient to operate said gins, and they had never been able to produce more than 10 or 12 bales per day.

Owing to the long delay and protracted use of the machinery without protest...