Parker v. Fenwick

• Decision Date: 25 April 1905
• Citation: 50 S.E. 627,138 N.C. 209
• Parties: PARKER v. FENWICK.
• Court: North Carolina Supreme Court

50 S.E. 627

138 N.C. 209

PARKER v. FENWICK.

Supreme Court of North Carolina

April 25, 1905

Appeal from Superior Court, Forsyth County; E. B. Jones, Judge.

Action by C. W. Parker against J. B. Fenwick. From a judgment on the verdict, plaintiff appeals. New trial.

On an action for the price of machinery, where the defense is a counterclaim for breach of warranty, the measure of damages for the defendant is the difference between the value of the property received, and what it would have cost the defendant to purchase such machinery as that described in the contract and warranty.

Plaintiff being a resident of Kansas, sold to the defendant, a resident of Forsyth county, in this state, one merry-go-round, with attachments, for the sum of $2,000; defendant paying $1,000 cash, and giving his promissory notes, payable monthly, for the balance. To secure said notes, defendant executed a chattel mortgage on the property. A contract was made by correspondence between the parties, all of which is set out in the record. The property was shipped to the defendant on March 23, 1901, and received on April 5th. Defendant wrote plaintiff on April 13, 1901, that the property had arrived and mentioned several defects, etc., in regard to which they had some correspondence. On April 24th defendant wrote to plaintiff: "The machine is running all right and the shooting gallery draws out the best people in the city; am much pleased with it." On May 5th he wrote plaintiff inclosing $100 for note due June 1st, and inquiring as to the lowest amount he would take for the 10 notes unpaid. A correspondence was carried on between the parties in regard to the payment of the notes as they fell due. There was no suggestion in any of the letters of any defect in the machine until just before the date of the summons, April 7, 1903. The defendant continued to make payments until they aggregated something over $1,400, leaving a balance due at the institution of this suit of $795. Defendant, by way of counterclaim, alleged that the plaintiff represented that the machine and its appurtenances were of the very best make and up to date, the best of its kind on the market, and that he was induced by such representations to agree to pay therefor the sum of $2,000; that it was not a good machine and up to date, but, on the contrary, was old-fashioned and out of date, and could not do the work as represented by plaintiff and, that by reason of the false representations made by plaintiff, defendant had been damaged in excess of the balance due in the sum of $500. To this counterclaim plaintiff filed a reply denying the material allegations.

The court submitted the following issues to the jury: "(1) What amount, if any, is defendant indebted to plaintiff upon notes sued on and described in complaint? Ans. $795.06. (2) What amount, if any, is plaintiff indebted to defendant upon counterclaim set up in the answer? Ans. $952. (3) What is the value of said property described in complaint now? Ans. $200. (4) Is the plaintiff the owner and entitled to the possession of the property described in the complaint? Ans. No."

The correspondence between the parties was put in evidence, and plaintiff testified that the machine was delivered according to contract, and complied with the representations. Defendant testified in regard to the defects which he said he discovered very soon after putting the machine to work. In his answer he says: "Soon after its arrival here, after defendant had paid as much as $1,400 on the machine, being entirely ignorant of the operation of machines of this character, he ascertained it was an old-fashioned, out of date machine, which could not do the work that it was represented to him by the plaintiff to do, and that by reason of the fraudulent representations he was induced to part with his money."

L. M. Swink, for appellant.

Watson, Buxton & Watson, for appellee.

CONNOR, J. (after stating the facts).

We have carefully read the correspondence which constitutes the contract between plaintiff and defendant. We fail to find any suggestion from defendant that the machine was not as represented by plaintiff, except that in his letter of April 13, 1901, he mentioned that some injury was done to the organ by the movement of the engine on the cars, that there was no flag pole or pulleys, and that the outfit was short two tent poles. After mentioning these, he says: "I had great trouble in putting the machine up and getting it to run a track, but have overcome all that now and do not expect any more trouble. You ought to make good all things that are short. I am pleased with everything but tent which was torn in several places." He then proposed to act as agent for the plaintiff in the sale of these machines. He also said that, as soon as he could do some business, he will want another shooting gallery. In the same letter he says that his shooting gallery is drawing out the best people, so far. Plaintiff promptly replied to this letter, noting the complaints made, to which defendant responded on April 24th that the machine was then running all right, and that he was much pleased with it. After these letters, we find no further complaint in regard to the matters referred to. The defendant did complain that he had been sick, and had been prevented by various causes from doing a successful business. He made frequent remittances on the notes, and asked for further time by reason of poor business, sickness, etc. We find nothing in the defendant's testimony inconsistent with his letters.

Plaintiff requested the court to instruct the jury that: "If the jury find from the evidence that the defendant ascertained that the machine did not come up to the representations made of it by plaintiff, but that defendant continued to use the machine with knowledge of the fact that it did not comply with the representations of plaintiff, and that defendant made payments on the contract, this would be a waiver of any warranty or representation, and they should answer the second issue, 'Nothing." D' His honor modified the instruction by inserting between the words "defendant" and "ascertained" the words "after having a reasonable time to investigate." To this modification plaintiff excepted. We are of opinion that in the light of defendant's testimony, the instruction should have been given as asked. There can be no doubt that the general proposition involved in the instruction as given is correct. The defendant was entitled to a reasonable time to investigate for the purpose of discovering any such defects in the machine as were covered by the contract. The plaintiff was not controverting this proposition, but was insisting that the defendant, on his own showing, had in fact ascertained--discovered--every alleged defect, and, after such discovery, had accepted and used the machine, paying a portion of the purchase money. The only question of law presented upon this hypothesis which we think was sustained by the evidence was the duty of the defendant after such discovery. Could he accept the machine, use it as his own for two years, during which time, according to his own testimony, its value was reduced to $200, and then refuse to pay for it, retaining the property, and recovering damages for defects, which he admits were known to him almost, if not quite, at the time the machine was received? He is not setting up a counterclaim for a breach of an express warranty in respect to quality. He purchased from plaintiff and was entitled to demand "a merry-go-round of my [[plaintiff's] manufacture *** as good as was ever put on the market." It had been run 30 days at a street fair. Plaintiff was to thoroughly repaint and varnish it, and to make it "as good as a new merry-go-round." Defendant does not allege that this was an express warranty as to quality of material, etc. The relative rights and duties of the parties are thus stated: "There is no dispute as to the rule of law touching the rights of parties under an executory contract for the future sale and delivery of goods of a specified quality, in the absence of an express warranty. The quality is a part of the description of the thing agreed to be sold, and the vendor is bound to furnish articles corresponding with the description. If he tenders an article of an inferior quality, the purchaser is not bound to accept it. But if he does accept it, he is, in the absence of fraud, deemed to have assented that it corresponded...