147 S.E. 434 | N.C. | 1929
The plaintiff instituted an action against the defendant to recover the sum of $2,000 evidenced by four promissory notes in the sum of $500 each. The notes were given in payment of the purchase price of a certain gin sold by the plaintiff to the defendant. The contract of sale was in writing, containing the usual stipulation that "no agreement, oral or otherwise, other than is set forth herein, forms any part of this contract." The defendant admitted the execution of the notes, but denied that he was indebted to the plaintiff by reason of the fact that the plaintiff "represented, warranted and guaranteed . . . a certain gin equipment; . . . that same was practically new and in number one condition, . . . when in truth and in fact said gin and equipment was in bad condition; . . . that said engine is still unsatisfactory and cannot be operated but a very short time without overheating and is not only unsatisfactory, but worthless and of no value."
The defendant further alleged "that by reason of the wrongful misrepresentation by the plaintiff and breach of said warranties, all of which were relied on by the defendant, the defendant has sustained a loss of $700, money expended on repairs and transportation, and $2,000 loss of earnings on account of not being as represented and warranted," etc.
There was a written warranty on the back of the sales contract providing in substance that if the machinery did not give satisfaction notice should be given in a reasonable time to enable the vendor to remedy any defect. The defendant offered evidence tending to show that the vendor was informed of the purpose for which this machinery was to be used, and that it could not be used during the season at all; that the motor could not be put in condition to run; that the motor could not be started." All of this testimony was excluded by the court.
One witness for defendant testified that he "did not consider the engine worth anything — only junk." Another witness testified: "Engine worth only junk price at time I started to work on it. Worthless as a running engine."
At the conclusion of the testimony the trial judge directed the jury to answer the issue in favor of plaintiff in the sum of $2,000 with interest.
From judgment rendered the defendant appealed.
The contract of sale was in writing and contained the usual stipulation that no oral agreement formed any part of the contract. The allegations in the counterclaim or cross-action of defendant *3
are not sufficient to raise the issue of fraud in the inducement of the contract. Colt v. Kimball,
The defendant in his counterclaim or cross-action does not allege or offer evidence tending to show that notice was given to the vendor as required by the written warranty, but the defendant says that this principle does not apply because the property was utterly worthless and that he attempted to offer competent evidence to that effect, which was erroneously excluded by the court. This aspect of the case is governed by the principle declared in Swift v. Aydlett,
The evidence of the worthlessness of the property or total failure of consideration of the note sued on should have been submitted to the jury with proper instructions from the court. Failure to do so constituted error, and a new trial is awarded.
New trial.