10 N.C. App. 375 | N.C. Ct. App. | 1971
With respect to its claim for relief, the seller pleaded and offered evidence tending to show that it sold and delivered to the buyer under the terms of an express contract a Polar Chip Slush Machine, and that because the buyer defaulted in his payments, the seller repossessed and sold the machine pursuant to the terms of the contract.
The buyer admitted that he purchased and received the machine, and that he did not make any payments under the contract except a down payment of $270.85. The buyer admitted that the seller repossessed the machine, but denied that he was indebted to the seller in any amount.
G.S. 25-2-607(1) provides: “The buyer must pay at the contract rate for any goods accepted.” In the instant case the defendant’s denial of any indebtedness to the plaintiff raises an issue as to whether the defendant accepted the machine. This issue must be determined by the jury from a consideration of all the evidence in connection with G.S. 25-2-606 which, in pertinent part, provides:
“(1) Acceptance of goods occurs when the buyer
(a)after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or
(b)fails to make an effective rejection (subsection (1) of § 25-2-602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
(c)does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.”
If the jury determines that the defendant accepted the machine, it will then proceed to determine what amount, if any, the plaintiff is entitled to recover of the defendant for the sale of the Polar Chip Slush Machine under the terms of the contract.
With respect to his counterclaim, the buyer pleaded: (1) fraud; (2) “total failure of consideration”; (3) breach of im
This record contains no evidence of fraud or “total failure of consideration,” nor is there any evidence that there was a breach of implied warranty of fitness for a particular purpose. G.S. 25-2-315.
G.S. 25-2-607 (4) provides: “The burden is on the buyer to establish any breach with respect to the goods accepted.”
If it shall be determined by the jury that the defendant accepted the machine, then the defendant’s counterclaim for breach of implied warranty of merchantability must be considered. G.S. 25-2-314.
The court allowed the plaintiff’s motion for a directed verdict against the defendant as to his counterclaim based on breach of any implied warranties, stating that the contract contained an “express disclaimer.” The defendant’s counterclaim was allowed to go to the jury on the theory of “total failure of consideration.” The issue submitted to the jury did not properly present the plaintiff’s claim nor the defendant’s counterclaim. The defendant is entitled to have his counterclaim, based upon a breach of implied warranty of merchantability, submitted to the jury unless the contract contains an exclusion or modification of the implied warranty. G.S. 25-2-316. Since the contract was not made a part of the record on appeal, we are unable to determine the correctness of the court’s ruling on the plaintiff’s motion for a directed verdict in this regard.
For the reasons herein stated, the judgment of the court awarding the defendant $270.80 is vacated, and the case is remanded to the District Court of Forsyth County for a new trial upon the plaintiff’s claim and the defendant’s counterclaim.
Vacated and remanded.
