6 N.C. App. 137 | N.C. Ct. App. | 1969
The defendant assigns as error the court’s failure to grant his motion for judgment as of nonsuit made at the close of the evidence. At the trial of this cause it was incumbent upon the plaintiff to introduce evidence in support of his allegation that there had been a total failure of consideration for the sale of the 1960 Jaguar sports car. There was a failure of consideration if, at the time of the sale, the automobile could not be used for the purposes for which it was intended. Furniture Co. v. Manufacturing Co., 169 N.C. 41, 85 S.E. 35; Pool v. Pinehurst, 215 N.C. 667, 2 S.E. 2d 871.
In support of his allegation that there had been a failure of consideration, the plaintiff testified that after he had driven the automobile approximately 750 miles the motor failed, and the automobile became worthless because the cost of repairs would have exceeded its value. The value of the automobile after it had been driven 750 miles, would not, of itself, infer that the automobile was worthless at the time of the sale unless the breakdown could be attributed to defects in the motor of the automobile at the time of the sale. In this connection, the plaintiff testified that he had the automobile shipped back to Greensboro, North Carolina, where he had it examined by an expert mechanic. The mechanic testified that when he examined the 1960 Jaguar he found the crankshaft to be five thousandths of an inch out of round, and that this condition would not ordinarily occur overnight. He testified that the breakdown resulted from the defects in the crankshaft coupled with the fact that the crankcase contained a very heavy oil which would not properly lubricate the motor but would have caused the engine to run quieter so that any defects in the motor would have been more difficult to discover. There was considerable evidence that the crankcase contained ninety weight oil at the time of the sale. We believe this evidence raises an inference that the crankshaft was defective at the time of the sale, and that the breakdown could have resulted therefrom.
We are not unmindful of the evidence that the plaintiff drove the automobile for a considerable distance prior to the breakdown, and this would certainly raise an inference that the automobile was useful for the purposes for which it was intended. Nevertheless, di
The defendant-appellant’s fourth assignment of error, based on exception number 12, challenges the court’s signing and entry of the judgment. This assignment of error presents the face of the record for review, and this includes whether the verdict supports the judgment. Moore v. Owens, 255 N.C. 336, 121 S.E. 2d. 540; Coulbourn v. Armstrong, 243 N.C. 663, 91 S.E. 2d. 912; Goldsboro v. R. R., 246 N.C. 101, 97 S.E. 2d. 486; 1 Strong, N.C. Index, Appeal and Error, § 21, p. 91, et seq.
The issues arise from the pleadings and the evidence. In the instant case the second issue, which was answered in the affirmative by the jury, reads as follows:
“2. Was the Jaguar automobile purchased by the plaintiff virtually worthless at the time of its delivery?”
We hold that the proper issue in the instant case was whether the 1960 Jaguar automobile was “worthless” at the time of the sale and not whether it was “virtually worthless”. Furniture Co. v. Manufacturing Co., supra; Pool v. Pinehurst, supra. Webster’s Third New International Dictionary (1968) defines the word “virtual” as meaning “possessed of certain physical virtues; being in essence or effect but not in fact.” Substituting the second definition for the word “virtually” in the issue presented to the jury, it would read as follows:
“2. Was the Jaguar automobile purchased by the plaintiff in essence or in effect but not in fact worthless at the time of its delivery?”
The affirmative answer to the issue then says that the Jaguar was not in fact worthless at the time of delivery. The verdict thus finds that the consideration might have been inadequate. In Young v. Highway Commission, 190 N.C. 52, 128 S.E. 401, the Court said:
“ 'So long as it is something of real value in the eye of the law, whether or not the consideration is adequate to the promise, is generally immaterial in the absence of fraud. The slightest consideration is sufficient to support the most onerous obligation; the inadequacy, as has been well said, is for the parties to consider at the time of making the agreement and not for the court*142 when it is sought to be enforced.’ 13 C.J. 365, Exum v. Lynch, 188 N.C. 392, 396.”
We hold that the judgment is not supported by the verdict.
The defendant’s additional assignments of error relate to the admission of evidence and to portions of the judge’s charge but since the judgment is vacated, and these alleged errors are not likely to reoccur, we do not deem it necessary to discuss them.
The appellee in his brief cited several sections of the Uniform Commercial Code in support of his contentions; however, since the action was brought and the trial had without any reference to the Uniform Commercial Code, we have not applied it in determining the appeal in this case.
For the reasons herein set forth, the judgment of the District Court dated 17 April 1969 is vacated.
