Price v. Goodman

• Decision Date: 10 April 1946
• Docket Number: 90
• Citation: 37 S.E.2d 592,226 N.C. 223
• Parties: PRICE et al. v. GOODMAN.
• Court: North Carolina Supreme Court

37 S.E.2d 592

226 N.C. 223

PRICE et al. v. GOODMAN.

No. 90

Supreme Court of North Carolina

April 10, 1946

The plaintiffs brought this action to recover the balance due on the purchase price of a quantity of used or second hand steel road forms, used in the construction of concrete roads. They allege that defendant agreed to pay for them cash on delivery at Huntington and Charleston, West Virginia, at 27 1/2¢ per lineal foot, for 10,990 feet, and that they were delivered to defendant's trucks and received by him. Subsequently defendant paid $1,500 on the purchase price, and was credited with twelve of the forms he claimed were unusable, leaving a balance due of $1,489.25.

The defendant answered, partially admitting and partially denying the allegations of the complaint, and setting up as a further defense and counterclaim in which he referred to certain 'Blawknox' forms sold to him and averred that 'said sale carried an implied warranty that said forms were fit and suitable for the purposes for which they were designed and manufactured, and that same were usable for said purposes as Blawknox forms,' whereas they were in fact not so suitable or usable, but had no value except as junk. He therefore pleads a breach of such implied warranty and specifies his damages as a result of the breach to be as follows: $695.21 for transportation of the forms from West Virginia to Camp Claiborne, Louisiana; $1,500 paid on the purchase price; $156.23 handling charges totalling $2,351.44, with interest, less a credit of $500 salvage or junk value of the forms. The prayer for judgment is in accord with these alleged items of damages.

To this plaintiffs replied alleging, inter alia, that defendant had had the forms in his possession for more than two months without any complaint except as to the twelve forms credited, and had paid $1,500 on the purchase price; that defendant had caused an inspection to be made of the forms before closing the trade, and any defects in them were open, obvious and patent, and denied that there was any warranty, or breach thereof.

On the trial only two witnesses testified: J. W. Price on the part of the plaintiffs, and defendant in his own behalf. This, with exhibits, comprised the evidence.

Plaintiffs' evidence tended to show as follows:

Plaintiffs reside in Huntington, W. Va., and are engaged in highway and railroad construction. Goodman called J. W. Price, of the firm, on May 17, 1943, and asked if they had some used concrete road steel forms which they were willing to sell, and Price answered affirmatively. Asked what kind they were, Price informed of their dimensions, and they agreed on a price of 27 1/2¢ per lineal foot on plaintiffs' lot in West Virginia, where defendant's trucks were to pick them up. (This was confirmed by letter of May 18, introduced in evidence).

Defendant offered to send his check as each truck load was picked up, but Price suggested that it might be better to wait until he got all the forms and make one payment for the whole sale, upon which they agreed.

Defendant sent his trucks and hauled away 10,900 feet of steel forms, the subject of the agreement, and plaintiffs sent him an invoice for payment on June 10. (Invoice was introduced). On this invoice was credited 12 forms which Goodman had reported as unusable. The invoice showed a balance due of $1,489.25. Mr. Goodman, the witness stated, understood that the forms were used forms and in no way guaranteed. Plaintiffs did not know what they were going to be used for, and nothing was said about what kind they were.

After repeated attempts to get payment for the forms by letter, and by wire, the defendant wrote a letter in which he complained that his man reported that 300 of the forms were not suitable for repair and suggested that he meet Goodman at his office on August 25. Witness came on August 26. At that time defendant paid $1,500 on the purchase price.

During the telephone talk referred to, Price and Goodman discussed the necessity of repairs, but Goodman did not say anything about having a customer for the forms. Plaintiffs were willing to sell the equipment because there was no opportunity for any construction work in that part of the country because of the war.

Defendant's testimony was substantially as follows:

Defendant is a resident of Asheville, N. Car. His business is buying, overhauling, and selling road equipment. He wanted used road forms, and Mr. Price told him he had such forms--Blawknox and Heltzels. He did not have enough of one make. Mr. Price said the forms were in good, fair condition--could be made straight edge. As a result of the conversation he sent his truck drivers after them, put some men to work on them, and shipped 4,000 feet to Campbell Construction Company at Camp Claiborne, La.

(At this point defendant sought to testify that Campbell Construction Co. had agreed to take the forms subject to inspection and pay $3,600 for them, counsel asking for its admission in order to show loss of anticipated profits on this resale. The evidence was not admitted, and defendant excepted). Witness stated that in his opinion the road forms were 'junk' and had no other value.

On cross-examination:

Witness knew a man in Huntington, President of the West Virginia Tractor and Equipment Company, to whom he mentioned that he wanted a complete paving outfit for one job, for Campbell, in Louisiana, and as a result of this called Mr. Price. At his request Mr. Basham sent a man down there to inspect the forms. 'After his inspection, he told me what they were and said he preferred that I look at them myself or send one of my own men. * * * That was under my authority. He went there and inspected and then I bought them. ' He was to get Blawknox, Heltzels, and some Hatcliff.

'Mr. Price said that he had some Blawknox and Heltzels. He said they were in good serviceable condition and Mr. Basham backed that up. * * * He didn't check every one but they looked good, but you can't tell just looking. I took that chance because we were in a hurry for them and needed them. * * * I had to take their word for them.'

Defendant further testified that after alterations or additions to some of the forms, he shipped to the Louisiana people about 2,000 feet of forms, 'to be in good condition', and on inspection they were refused. He said the forms, if they had been in the condition represented by Mr. Price, would have been worth 60¢ to 75¢ per foot to him for resale.

The following issues were submitted to the jury:

'1. Did the plaintiffs and defendant enter into a contract for the sale of certain steel road forms, and did the plaintiffs deliver to the defendant said 10,870 lineal feet of steel road forms at the contract price of 27 1/2¢ per lineal foot?

'2. If so, what amount are plaintiffs entitled to recover of the defendant?

'3. What amount, if any, is the defendant entitled to recover of the plaintiffs on his counter-claim and/or crossaction filed?'

The first issue was answered by consent 'Yes.'

On the second issue the jury was instructed, inter alia, as follows: 'The burden of that issue is on the plaintiffs. That burden is to satisty you from the evidence by its greater weight, or by the preponderance of the evidence, but I do peremptorily instruct you that if you find from the evidence and by its greater weight that the plaintiffs did sell to and the defendant did receive from them at the agreed price of 27 1/2¢ per lineal foot, this 10,870 lineal feet of steel road forms, then if you so find from the evidence and its greater weight, your answer to the second issue would be $2,989.25.'

Defendant excepted. The issue was answered $2,989.25, upon which, without objection, $1500 was credited, leaving $1,489.25.

The third issue was answered 'Nothing.'

From the ensuing judgment defendant appealed, assigning error.

T. A. Uzzell, Jr., of Asheville, for appellant.

Smathers & Meekins, of Asheville, for appellees.

SEAWELL Justice.

On this appeal we are dealing with an executed sales contract and an alleged breach of warranty on the part...