Petrus Machinery, Inc. v. Radiator Specialty Co.

257 N.C. 85 | N.C. | 1962

DeNNY, C.J.

The findings of fact by the trial judge do not disclose whether or not the machines delivered to the defendant failed to answer the description set out in the contract or were otherwise defective. If the machines delivered to the defendant were the machines actually purchased by the defendant and inspected by its agent in Cleveland, Ohio, and were reconditioned in accordance with the terms of the contract, then in our opinion the defendant did not have the right to reject and return the machines to the seller merely because it decided they were too small for its use.

The appellant did not except to the findings of fact by the trial court. Even so, in our opinion, the facts found are insufficient to support the court’s conclusions of law to which the appellant did except and assigns as error.

In 46 Am. Jur., Sales, Section 442, page 608, it is said: “Where the contract of sale provides for a sale f.o.b. the point of shipment, the title is generally held to pass, in the absence of a contrary intention between the parties, at the time of the delivery of the goods for shipment at the point designated. * *”

Likewise, it is said in this same authority, Section 443, at page 610: “In general, the fact that the buyer has the right to inspect the goods on arrival at a certain point and reject them for nonconformity to the contract of sale does not itself prevent the passing of the title on delivery to the carrier, if the goods in fact were such as the contract called for. * * *”

The plaintiff in its complaint alleged the defendant purchased the machines delivered. The defendant denied this allegation in its answer. None of the evidence adduced in the hearing below is brought forward and set out in the record. We do have what is purported to be a photostatic copy of the original contract between the parties. However, it does not appear from the record that such contract was introduced in evidence in the hearing below.

We think the ends of justice require that this cause be remanded to the end that all the facts pertinent to the determination of the issues raised by the pleadings may be found and the conclusions of law drawn therefrom.

The judgment entered below is vacated and the cause is

Remanded.

SHARP, J., took no part in the consideration or decision of this case.