McCaskey Register Co. v. Bradshaw

Oct 24, 1917
Versions:174 N.C. 414
93 S.E. 898
1917 N.C. LEXIS 108
Allen, J.

His Honor’s ruling proceeds upon the idea that the answer does not allege a defense or counterclaim, and as the defendants have admitted the execution of the contract, and the balance due thereon, that the plaintiff is entitled to judgment.

The answer is not specific and leaves much to inference, but “if it can be seen from its general scope that a party has a cause of action or defense, though imperfectly alleged, the fact that it has not been stated with technical accuracy or precision will not be so taken against him as to deprive him of it.”

The pleading .must be construed “liberally,” and “it must be fatally defective before it will be rejected as insufficient.” Brewer v. Wynne, 154 N. C., 471.

Applying these principles, we cannot say the defendants are entitled to no relief.

The action was commenced within six months after the execution of the contract, and the purpose for which the register was bought was known to the plaintiff. The defendants were engaged in the mercantile *416 business, and it was understood by tbe parties that the ^defendants were buying a machine which could be used and would be of service in keeping their accounts. This is what the defendants agreed- to- pay for, and. they allege in the answer that the plaintiff “sold to them a worthless-machine that has not been properly installed and has not properly worked and could not properly work,” and that the sale was made “willfully and fraudulently, with the intent to cheat, deceive and defraud. these defendants.” .

If these allegations are true — and for the purposes of this appeal the defendants are entitled to have them so considered — there was error in rendering judgment for the plaintiff on the pleadings, because of the implied warranty that goods sold are of some value and fit for use. Ashford v. Shrader, 167 N. C., 48; Furniture Co. v. Mfg. Co., 169 N. C., 44.

In the last case the Court says: “It was decided in Ashford v. Shrader, 167 N. C., 48, that although there is no implied warranty as to-quality in the sale of personal property, the seller is held to the duty of furnishing property in compliance with the contract of sale—that is, at least merchantable or salable; and to this we may add that it shall be capable of being used, if intended for use.

“This decision, and others of like import in our reports (Medicine Co. v. Davenport, 163 N. C., 297; Tomlinson v. Morgan, 166 N. C., 557; Grocery Co. v. Vernoy, 167 N. C., 427.), rest upon the presumption that both buyer and seller are acting honestly and with no intention to cheat or defraud, and as The purchaser cannot be supposed to buy goods to lay them on a dunghill,’ as expressed by Lord Ellenborough, in Gardner v. Gray, 4 Campbell, 143, it will not be assumed that the seller desires to-obtain money for a worthless article.”

The defendants clearly bring themselves within this rule, as they alleged that the register was “worthless” and “could not properly work.”

Nor would we be inclined to hold that the representations alleged to-have been made may not be sufficient as a basis for relief on the ground of fraud, under the authority of Whitehurst v. Ins. Co., 149 N. C., 273; Unitype Co. v. Ashcraft, 155 N. C., 67, and cases cited, but there is no-allegation that the representations were false, or that the party making them knew they were false, or that they were made with fraudulent intent.

The delay of the defendants in setting up their claim, and the failure to return the property, if required to do so (see Robinson v. Huffstetler, 165 N. C., 459), is explained in the answer by the efforts made to have the register properly installed, and the repeated promises of the plaintiff to send its agent to the place of business of the defendants for that purpose.

Reversed.