W. F. Main Co v. Fields

• Decision Date: 09 April 1907
• Citation: 144 N.C. 307,56 S.E. 943
• Court: North Carolina Supreme Court
• Parties: W. F. MAIN CO. v. FIELDS et al.

144 N.C. 307

56 S.E. 943

W. F. MAIN CO.

v.FIELDS et al.

Supreme Court of North Carolina.

April 9, 1907.

1. Trial—Instructions—Issues op Case.

The rule that material matters alleged on the one side and denied on the other should be submitted in the form of issues to the jury applies to new matter alleged in the answer and not mentioned in the complaint.

2. Sales — Warranties — Inspection by Buyer.

Where goods sold are warranted to be like the sample, and the defects are latent, and not readily discoverable, the buyer has a reasonable time in which to inspect the goods and notify the seller of any defects in them, notwithstanding the contract of sale specifies that the buyer waives all right to object to the goods by failure to notify the seller within two days from their receipt of defects in the same.

[Ed. Note.—For cases in point, see Cent, Dig. vol. 43, Sales, §8 817-823.1

3. Same—Notice to Seller of Defects.

Compliance with a provision in a contract of sale, that the buyers must notify the seller of defects in the goods by registered letter, is immaterial where it is shown that the seller received the notice.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 43, Sales, 88 806-808.]

4. Same—Breach op Warranty of Quality.

Where goods warranted to be a certain quality were valueless, and the seller, on being notified of this refused to remedy the defects, the buyer may rescind the contract and lawfully refuse payment.

[Ed. Note.—For cases in point, see Cent, Dig. vol. 43, Sales, 8 294.]

Appeal from Superior Court, Scotland County; Justice, Judge.

Action by the W. F. Main Company against W. L. Fields and others. From a judgment for defendants, plaintiff appeals. Affirmed.

This action was commenced before a justice of the peace to recover on an account for $150 for goods sold and delivered. The following issues were submitted: "(1) Was the contract set out in the complaint obtained from defendant by the false and fraudulent representation of plaintiff? Answer: Yes. (2) What was the value of the goods sold and delivered by plaintiff to defendant? Answer: Nothing over freight. (3) Did defendant notify plaintiff of defects in the goods and give him opportunity to remedy any defects? Answer: Yes. (4) What amount, if any, is plaintiff entitled to recover of defendant? Answer: Nothing." From a judgment that plaintiff take nothing by his writ, plaintiff appealed.

McLean, McLean & McCormick, for appellant.

Maxcy L. John, for appellees.

BROWN, J. 1. The plaintiff tendered the following issue: "What is the amount due under the contract"—and excepted to the issues submitted. We think the issues passed upon by the jury are entirely responsive to the allegations of the pleadings, and that under them each party had the opportunity to offer evidence bearing upon every phase of the controversy. Those material matters which are alleged on the one side and denied on the other should be submitted in the form of issues to the jury, and this applies to new matter alleged in the answer and not mentioned in the complaint. Shaw v. McNeil, 95 N. C. 535; Owen v. Phelps, 95 N. C. 286. An examination of the answer discloses that the matters embodied in the issues submitted are all pleaded with particularity in the answer of the defendants.

2. It is contended that the defendants did not comply with the stipulations of the written contract under which they purchased. A contract almost identical in its terms with the one sued on here was before the court in Main v. Griffin-Bynum Company, 141 N. C. 43, 53 S. E. 727, in which it was held that the defendant must comply with the warranty and exchange plan, and that plaintiff was entitled to notice of alleged defects and an opportunity to remedy them before the defendant could repudiate the entire contract. In reference to the provisions of said contract, this court said: "According to the terms of this obligation, the plaintiff was entitled to notice of any alleged defect in thegoods as to the quality, and to be given an opportunity to remedy any deficiency before defendant could repudiate the entire contract" The facts of that case were materially different from this. It appeared there that the defendant received the goods promptly and made no complaint; the court saying in reference thereto: "But defendant's own evidence shows that no complaint whatever of any defects in the jewelry was ever made by defendant from the date of the receipt of it to the time of the trial. On the contrary, on June 16, 1902, defendant notified plaintiff that 'goods just received and found all O. K.' " In respect to these defendants' conduct after receipt of the jewelry, J. T. Fields testified as follows: "We sold some of it, and it was brought back in a short time brassy; no gold about it We took it back and refunded the money. As soon as we found out what it was, we notified them that it was worthless, and asked them to take It back. They refused to take it back. It was not worth anything. I would not have it. To sell this stuff would ruin a man's business." It is true that the contract countains a provision that all right to make claim that goods are not like sample, or not according to order, are waived unless such, claim is sent by registered mail within two days of receipt of goods, and it is likewise true that there is no evidence that the defendants made claim within two days after receipt of the goods. The courts have very...