Potter v. National Supply Co.
| Decision Date | 02 March 1949 |
| Docket Number | 23 |
| Citation | 51 S.E.2d 908,230 N.C. 1 |
| Parties | POTTER v. NATIONAL SUPPLY CO. |
| Court | North Carolina Supreme Court |
Briefly stated, the complaint declared that plaintiff, a fisherman of Belhaven, North Carolina, bought a Diesel engine from defendant, a corporation engaged in manufacturing engines at Springfield, Ohio, through the Barbour Boat Works, a shipbuilding firm at New Bern, North Carolina, for installation in the plaintiff's fishing trawler then in process of completion by the Barbour Boat Works; that as part of the transaction defendant warranted to plaintiff that the engine when installed in the trawler would turn a '50 x 34 propeller' 600 revolutions per minute and at such speed develop 260 horse power; that the warranty was breached in specified particulars; and that the breach proximately resulted in substantial damage to plaintiff. The answer contained a categorical denial of the material allegations of the complaint. The plaintiff presented testimony tending to establish the matters set out in the six next succeeding paragraphs.
Before the events recited below, Barbour Boat Works contracted to construct a fishing trawler for the Hatteras Development Company in accordance with written plans and specifications prepared for the latter by Weaver Associates Corporation bearing date January 8, 1945. These plans and specifications provided, among other things, that Barbour Boat Works should furnish 'all labor and material' and deliver the complete vessel afloat at its plant to the Hatteras Development Company; that the engine horse power should be '200 H.P. at 450 R.P.M.'; that the propulsion engine should be 'a Superior Marine Diesel Engine Standard Model, 6 cylinder, 9 inch bore, 12 inch stroke, rated 200 H.P. at 450 R.P.M.'; and that the propeller should be '3-bladed bronze, of about 50 inches diameter and a pitch of about 34 inches. ' After the Barbour Boat Works had constructed the frame or body of the proposed trawler and designated it as 'Hull No. 15', it discovered that Hatteras Development Company had become unable to carry out the remainder of the contract on its part. Thereupon Barbour Boat Works and Hatteras Development Company entered into an agreement in writing in which Barbour Boat Works released Hatteras Development Company from any further liability in the premises and in which Hatteras Development Company surrendered all rights in the incomplete vessel to Barbour Boat Works.
Plaintiff owned several trawlers which he used in fishing in the ocean along the Atlantic Coast. His operations frequently extended to the Newfoundland banks, some 800 miles from Belhaven. Barbour Boat Works was anxious to complete 'Hull No 15,' and defendant was desirous of furnishing an engine for it. Plaintiff saw the incomplete trawler at the shipyards in New Bern. A few days later, to wit, about January 20 1946, R. E. Hoffman, sales agent of defendant, and R. R Rivenbark, a representative of Barbour Boat Works, visited plaintiff at his home in Belhaven, where the three men engaged in conversation concerning the incomplete vessel and a Diesel engine to propel it. They had before them the plans and specifications of Weaver Associates Corporation relating to 'Hull No. 15.'
Plaintiff advised Hoffman and Rivenbark that he would buy the 'boat' for use in his fishing business if he could obtain an engine for it which 'would do his work;' that he did not 'know too much about Diesel engines;' and that the only way he could figure what power he needed was 'the amount of revolutions' of the propeller an engine would turn. Plaintiff and Hoffman then discussed the engine described in the plans and specifications, 'going into details of the engine' and the 'amount of revolutions it would turn. ' The plaintiff asked Hoffman if such engine would turn a propeller of the diameter of 50 inches and of a pitch of 34 inches 600 revolutions per minute and declared that he would buy 'that engine * * * if it would do that. ' Hoffman replied that he 'would guarantee it to turn 600 because he had a tug in Jacksonville with the same engine that would do the same thing, 34 propeller, 50 inch diameter. ' Relying on 'the guaranty,' plaintiff agreed to ' A few days thereafter, namely, on January 28, 1946, defendant. 'The National Supply Company (Seller)' offered in writing to sell to plaintiff, for the price of $12,316.72 to be paid partly in cash and partly in specified future monthly installments.
On February 2, 1946, Barbour Boat Works and plaintiff entered into a contract in writing whereby Barbour Boat Works sold and conveyed to plaintiff 'the trawler designated as Hull No. 15' and agreed 'to build and complete said vessel, equipping her in accordance with the plans and specifications designed for the Hatteras Development Company by Weaver Associates Corporation January 8th, 1945, as said specifications have this day been modified in writing and agreed to by the parties. ' There was no modification of the description of the engine which was to propel the trawler. The contract expressly stipulated among other things, that the price of 'said completed and equipped vessel' should be $55,000.00 payable in particularized installments of varying amounts at specified times; that $12,000.00 of the price was to be paid 'upon arrival of the engine at New Bern, N. C., for delivery and installation in the boat'; that the Barbour Boat Works should make good at its own expense all defects due to faulty materials or workmanship that developed within a period of ninety days after the acceptance by plaintiff, except as to defects in workmanship or materials in engine or equipment purchased by the Barbour Boat Works for installation and as to such parts the guarantee of the furnisher should be applicable; and that modifications or changes could be made in the plans and specifications subsequent to the execution of the contract by mutual consent of the parties. On the same day, Barbour Boat Works issued a purchase order to defendant requesting it to ship 'one 6-cyl. 9 x 12 Direct Rev. Marine Diesel Engine' for 'Hull 15' for $10,301.00, which represented the gross purchase price of $12,051.00 'less commis.' of $1,750.00. This order was accompanied by the check of Barbour Boat Works for $1,650.00 'as deposit with order,' and was mailed to defendant in a letter in which Barbour Boat Works advised defendant that the plaintiff had 'decided that he would not purchase this unit on a deferred payment basis,' and requested the defendant to deduct its 'discount' from the sale price in making the 'shipment and billing' and to ship the engine immediately to 'New Bern, sight draft, First Citizens Bank and Trust Company, of New Bern, for the balance of the sale price.'
On February 6, 1946, defendant shipped the engine by rail to its own order at New Bern with direction to the carrier to notify Barbour Boat Works of the arrival of the shipment at destination. It forwarded the 'order notify' bill of lading with sight draft for $10,301.00 attached to a bank at New Bern. When it delivered the shipment to the carrier, the defendant prepared and forwarded to Barbour Boat Works an invoice in which it described the engine as a '6 cylinder, 9 inch base x 12 inch stroke, direct reversible manual reversing Starboard Marine Superior Diesel engine, developing 260 B H P at 600 RPM.' Upon the arrival of the consignment at New Bern, plaintiff paid $12,000.00 to Barbour Boat Works, and the latter took up the draft and installed the engine in 'Hull No. 15.' The defendant issued an instruction book with the engine stating, in substance, that the engine had a speed of '600 R.P.M.' and would produce '260 H.P.' when operated at such speed.
When the trawler was completed, it was ascertained that the engine would not turn the propeller 600 revolutions per minute or generate 260 horse power. Efforts to produce such results raised the temperature of the engine to heights which threatened the destruction of the engine itself. Neverthe less, the plaintiff paid Barbour Boat Works the remainder of the price specified in their contract and used the trawler in his business. But he advised both the defendant and Barbour Boat Works of the unsatisfactory operation of the engine and threatened to sue them unless satisfying results were obtained. Letters passed between the managing officers of the defendant and Barbour Boat Works conceding that 'this engine was sold to develop 260 brake horse power at 600 revolutions per minute' and discussing possible remedial action to effect this result. On several occasions, defendant sent its engineers and service men to Belhaven to inspect the engine and determine what could be done to enable the engine to 'develop its rated speed and horse power. ' Although the pitch and size of the propeller were reduced on their advice, no substantial improvement in the operation of the engine was achieved. It was impossible to turn the propeller more than 440 revolutions per minute without elevating the temperature of the engine to dangerous levels. In consequence, the trawler's speed was limited to seven and a half or eight miles an hour, whereas it would have traveled ten and a half miles in such period if the engine had been capable of revolving the propeller in its original state 600 times a minute. This seriously impaired both the utility and the market value of the vessel. Moreover, the plaintiff expended...
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