182 S.E. 719 | N.C. | 1935
Civil action, tried upon the following issues:
"1. Was the Chevrolet automobile, sold by Dixie Chevrolet Company, Inc., to the plaintiff, defective in material or workmanship at the time *30 of its delivery to the plaintiff, so that it was not reasonably fit for the use for which it was intended? A. `Yes.'
"2. Did the defendant Dixie Chevrolet Company, Inc., purchase said automobile from its codefendants under the terms of the selling agreement, as alleged in the answer? A. `Yes.'
"3. If so, was said automobile defective in material or workmanship at the time it was received by the defendant Dixie Chevrolet Company from its codefendant? A. `Yes.'
"4. If so, was said automobile returned to the defendants Chevrolet Motor Company or General Motors Corporation within 90 days from the date of its delivery to the plaintiff, or before the same had been driven four thousand miles? A. `No.'
"5. If not, did Chevrolet Motor Company and General Motors Corporation waive the provisions of the written contract, after being informed of such defect in material or workmanship? A. `Yes.'
"6. What damages, if any, is the plaintiff entitled to recover of the defendant Dixie Chevrolet Company? Answer: `$200.00.'
"7. What damages, if any, is Dixie Chevrolet Company entitled to recover of the Chevrolet Motor Company and General Motors Corporation? A. `$200.00.'"
It is in evidence that the engine of the automobile purchased by plaintiff was defective and that a new engine would cost about $200. The original purchase price of the car was $733.00. The condition of the engine was reported to the seller, the Dixie Company, and it in turn reported the matter to the dealer, the Chevrolet Company, and a mechanic was sent from Charlotte to Dunn, N.C. to remedy the defect, which he was not able to accomplish.
The court instructed the jury that, as counsel for the Dixie Company had admitted on the argument, "the car was defective at the time, it would be your duty to answer the first issue `Yes.'" Exception by the other defendants. The Dixie Company has not appealed.
The principal question debated on the appeal was whether the Dixie Company is entitled to judgment over against its codefendants under the "Chevrolet Standard Warranty," which provides:
"The manufacturer warrants each new motor vehicle . . . to be free from defects in material or workmanship under normal use and service, its obligation under this warranty being limited to making good at its factory any part or parts thereof which shall, within 90 days after delivery of such vehicle to the original purchaser or before such vehicle has been driven 4,000 miles, whichever event shall first occur, be returned to it," etc.
It is admitted that the defective parts were not returned to the manufacturer within ninety days after delivery, or before the car had been *31
driven 4,000 miles, but the contention is that these provisions were waived by sending a mechanic to repair the automobile. The appealing defendants rely upon the decisions in Gibbs v. Plymouth Motor Corp.,
From judgment on the verdict, the Chevrolet Motor Company and General Motors Corporation appeal, assigning errors.
after stating the case: The full significance and import of the first issue seems to have been overlooked on all hands. If the automobile purchased by the plaintiff were so defective "that it was not reasonably fit for the use for which it was intended," then the plaintiff would be entitled to recover of the seller for want of consideration. Swift Co. v.Aydlett,
So long as the first issue stands, it is not worth while to consider the other questions debated on brief. There was error, however, in directing a verdict on this issue, considering the breadth of its terms, and for which a new trial must be awarded the appellants. It is so ordered.
New trial. *32