{ "id": 8527062, "name": "MUTHER-BALLENGER, a North Carolina General Partnership v. GRIFFIN ELECTRONIC CONSULTANTS, INC.", "name_abbreviation": "Muther-Ballenger v. Griffin Electronic Consultants, Inc.", "decision_date": "1990-10-30", "docket_number": "No. 903SC83", "first_page": "505", "last_page": "512", "citations": [ { "type": "official", "cite": "100 N.C. App. 505" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "329 S.E.2d 714", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1981, "pin_cites": [ { "page": "716" }, { "page": "717" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 703", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526001 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/74/0703-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-202", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1986, "opinion_index": 0 }, { "cite": "226 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 502", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561830 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0502-01" ] }, { "cite": "220 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "27 N.C. App. 689", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555920 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/27/0689-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-316", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1986, "pin_cites": [ { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-315", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1986, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-314", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1986, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "286 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "55 N.C. App. 551", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527630 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/55/0551-01" ] }, { "cite": "351 S.E.2d 816", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "84 N.C. App. 97", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12167605 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/84/0097-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-313", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1986, "pin_cites": [ { "page": "(l)(a) and (c)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 25-2-101", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 621, "char_count": 15442, "ocr_confidence": 0.757, "pagerank": { "raw": 8.20686664613159e-08, "percentile": 0.4765171637419788 }, "sha256": "7fa6ba07694ad18e06da064ae79fad7e7483e7ba326fd597968b731b72a732af", "simhash": "1:d10ff7f3101abe56", "word_count": 2427 }, "last_updated": "2023-07-14T14:37:10.855162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wells and Lewis concur." ], "parties": [ "MUTHER-BALLENGER, a North Carolina General Partnership v. GRIFFIN ELECTRONIC CONSULTANTS, INC." ], "opinions": [ { "text": "COZORT, Judge.\nPlaintiff filed suit seeking damages and recision of a maintenance agreement, alleging that a spinal scanner sold to plaintiff by defendant failed to produce acceptable spinal diagnostic scans. Plaintiff asserted four claims: (1) breach of express warranty; (2) breach of implied warranty of merchantability; (3) breach of implied warranty of fitness for a particular purpose; and (4) breach of contract. The trial court granted summary judgment for defendant on the first three claims. We find material issues of fact are present, and we reverse.\nPlaintiff forecast evidence tending to show: After a period of negotiations during the fall of 1987, plaintiff signed a written agreement to purchase a used Pfizer CT Scanner, used to scan the spinal region of the human body. Prior to the signing of the agreements between the parties, Dr. Ellis Muther, a general partner in plaintiff Muther-Ballenger, negotiated with Mr. Jonathan Griffin, president of defendant Griffin Electronic. Dr. Muther informed Mr. Griffin that his partnership needed a scanner which would produce acceptable scans for neurological and psychiatric purposes. Mr. Griffin assured Dr. Muther that the unit would produce acceptable spinal scans for diagnostic purposes. Dr. Muther and B. Rab\u00f3n Maready, a financial account management consultant associated with plaintiff, traveled to defendant\u2019s place of business in Fuquay-Varina to personally inspect a Pfizer Scanner and to inspect a spinal scan that had been produced by the scanner. They were shown a scan on the machine, and it was represented to them that the particular scan was produced from the machine. In fact, the scan had been produced by another Pfizer Scanner located in Elizabeth City. Mr. Griffin made representations to Dr. Muther and Mr. Maready that the Pfizer Scanner plaintiff would purchase would perform at the same quality level and maintain the same operational capacity as a Technicare 2060 Quantum, G.E. 8800, or any machine of comparable style. Based on these representations, plaintiff purchased the Pfizer Scanner from the defendant.\nOn 17 November 1987, Dr. Muther, acting in his representative capacity for the plaintiff, signed a contract for the purchase of one Pfizer Scanner. This document, entitled \u201cQuotation,\u201d was dated 16 November 1987. Dr. Muther also signed a service agreement, dated 17 November 1987. There was also a third document entitled \u201cAddendum to G.E.C. Service Agreement\u201d; this document was dated 16 November 1987, and signed 17 November 1987.\nThe quotation is typed on defendant\u2019s letterhead and describes the specifications for the scanner. The quotation also contains provisions setting forth the selling price and shipping terms. The second, and only other page of the quotation, contains the terms of the maintenance agreement. Underneath the terms of the maintenance agreement is typed \u201cCopy of Griffin Electronic Consultants, Inc. Service Agreement and Terms and Conditions included for your inspection.\u201d The signatures of Dr. Muther and Mr. Griffin appear on the second page.\nThe service agreement is also typed on defendant\u2019s letterhead. On the second page appears the following language:\nAll THE TERMS AND CONDITIONS OF THIS AGREEMENT INCLUDING THOSE SET OUT IN THE ATTACHED. ADDENDUM AND THOSE SPECIFICALLY INCORPORATED HEREIN BY REFERENCE CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES. THERE ARE NO WARRENTIES, [S/C] EXPRESSED OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE, EXCEPT AS SET FORTH IN THIS AGREEMENT.\nThe addendum to the service agreement contains provisions setting forth the services the defendant agrees to provide, the parts not covered by the agreement and the maintenance for which the plaintiff would be responsible.\nIn an affidavit, Dr. Muther testified that upon installation, the scanner failed to perform diagnostically acceptable spinal scans. The plaintiff was totally unable .to utilize the equipment for routine spinal diagnostic purposes. Plaintiff requested that defendant service the scanner as provided in the service agreement. According to the plaintiff, the defendant failed to service the scanner in the manner provided in the service agreement. On several occasions after the quotation and service agreement were signed, Mr. Griffin told Dr. Muther that the scanner would produce spinal scans for diagnostic purposes and that problems with the scanner could be resolved. The scanner, which went on line on 8 February 1988, was removed from the plaintiff\u2019s facility in May of 1988 after the plaintiff gave notice of its rejection of the scanner.\nIn its complaint, plaintiff alleged, among other things, that the defendant breached its express warranty that the scanner would conform to the plaintiff\u2019s desired use of the equipment and that the defendant implied warranties of merchantability and fitness for a particular purpose. Defendant answered that it effectively disclaimed all warranties, express and implied, by the disclaimer language (quoted above) located in the service agreement. Defendant moved for summary judgment on plaintiff\u2019s claims regarding breach of warranty. Both parties filed affidavits in support of their positions. The trial court found that there were no genuine issues of material fact concerning the liability of the defendant under plaintiff\u2019s breach of warranty claims and granted summary judgment in defendant\u2019s favor on those claims.\nUnder N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c), summary judgment is appropriate \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d We find questions of material fact present in this case, and we reverse summary judgment.\nThe sale of the scanner is a sale of goods and, thus, the sales transaction is governed by the Uniform Commercial Code, N.C. Gen. Stat. \u00a7\u00a7 25-2-101 et seq. Plaintiffs first claim is that defendant made and breached an express warranty that the scanner would completely perform quality diagnostic scanning of the human spine. The pertinent part of the code is: .\n(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.\n* H= * *\n(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.\nN.C. Gen. Stat. \u00a7 25-2-313(l)(a) and (c) (1986).\nDefendant contends that it effectively disclaimed any express warranties by the disclaimer located in the service agreement. The comment to \u00a7 25-2-313 suggests that the basic obligation created by a description of the goods cannot be retracted. \u201cA clause generally disclaiming \u2018all warranties, express or implied\u2019 cannot reduce the seller\u2019s obligation with respect to such description . . . .\u201d Comment, N.C. Gen. Stat. \u00a7 25-2-313 (1986). Thus, the true issue is whether the defendant made or breached any express warranties. Under the present circumstances whether defendant made or breached any express warranties that the scanner would completely perform quality scanning of the human spine is a question of fact to be decided by the trier of fact. Davis Realty, Inc. v. Wakelon Agri-Products, Inc., 84 N.C. App. 97, 351 S.E.2d 816 (1987); Pake v. Byrd, 55 N.C. App. 551, 286 S.E.2d 588 (1982). Thus, the trial court improperly concluded that there were no issues of material fact as to plaintiff\u2019s first claim for relief.\nPlaintiff\u2019s second and third claims are that the defendant breached the implied warranties of merchantability and fitness for a particular purpose. The Uniform Commercial Code provides that \u201c[u]nless excluded or modified (G.S. 25-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.\u201d N.C. Gen. Stat. \u00a7 25-2-314(1) (1986). Further, the code provides that the implied warranty of fitness for a particular purpose arises\n[wjhere the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller\u2019s skill or judgment to select or furnish suitable goods ....\nN.C. Gen. Stat. \u00a7 25-2-315 (1986). Defendant contends that its disclaimer in the service agreement effectively disclaimed both implied warranties.\nTo exclude the implied warranty of fitness for a particular purpose, the writing must be conspicuous. To exclude the warranty of merchantability, the language must mention merchantability and be conspicuous. N.C. Gen. Stat. \u00a7 25-2-316(2) (1986). Defendant\u2019s language of disclaimer in the service agreement meets the code\u2019s requirement of conspicuousness. Billings v. Joseph Harris Co., 27 N.C. App. 689, 220 S.E.2d 361 (1975), aff\u2019d, 290 N.C. 502, 226 S.E.2d 321 (1976). However, there is no language of disclaimer in the quotation; the only disclaimer appears on the service agreement. Defendant contends that the service agreement and the quotation were merged into a single contract and that the disclaimer in the service agreement is effective to disclaim the warranties implied in the sale of the scanner. The quotation and the service agreement are on separate pieces of paper; each document contains a separate executory section, and each document could be read as an entire agreement in itself. Thus, there is a material question of fact as to whether the quotation and the service contract constitute either one contract for the sale of goods or two contracts, one for the sale of goods and one for the sale of services. Consequently, the trial court\u2019s grant of summary judgment for the defendant was improper.\nThe plaintiff contends that even if the documents are found to constitute one contract that it is entitled to maintain this breach of warranty action because the defendant\u2019s subsequent verbal warranties modified the prior written contract and written disclaimer. Plaintiff contends that after the sales contract had been signed and after the scanner had been installed, the defendant\u2019s agents told plaintiff\u2019s agents that the scanner would produce acceptable spinal scans and that any problems with the scanner could be resolved. Thus, plaintiff argues that defendant\u2019s statements created additional warranties which were not disclaimed by the statement in the original contract.\nIn response, defendant argues that the written contract is the complete agreement between the parties and that parol evidence of additional terms may not be introduced. Defendant misapprehends the purpose of the parol evidence rule. The parol evidence rule bars admission of evidence of any contemporaneous oral agreements or any prior agreements which contradict the terms of the parties\u2019 final written agreement. N.C. Gen. Stat. \u00a7 25-2-202 (1986). In the present case, the parol evidence rule would not bar plaintiff\u2019s evidence of oral modifications made subsequent to the written contract.\nIn Bone International, Inc. v. Johnson, 74 N.C. App. 703, 329 S.E.2d 714 (1981), a truck dealer sued defendant for the cost of repairs it made on defendant\u2019s trucks. Defendant claimed that after he had purchased the trucks and signed the bills of sale, which contained the words \u201cNo Warranty,\u201d the plaintiff orally promised to repair the trucks for free. Id. at 706, 329 S.E.2d at 716. This Court held that the post sale agreement was an oral modification of the original contract and that the subsequent agreement was not subject to the parol evidence rule. Id. This Court held that the \u201cdefendant\u2019s testimony as to the oral modification thus raises a statutory defense to plaintiff\u2019s suit and so creates a genuine issue of material fact, precluding summary judgment.\u201d Id. at 707, 329 S.E.2d at 717. We find Bone International controlling here. There is a genuine issue of material fact as to whether there was a subsequent agreement modifying the original contract. For this reason summary judgment was improper.\nIn conclusion, we find that summary judgment for the defendant was improperly granted for three reasons. First, there are issues of material fact as to whether the defendant\u2019s description of the scanner\u2019s capabilities and the defendant\u2019s display of a scan taken by another scanner created any express warranties. Second, there is a question of material fact as to whether the quotation and the service agreement are merged into a single contract. Last, there is a factual issue as to whether the defendant\u2019s agent\u2019s statements to the plaintiff\u2019s agent constitute a subsequent oral agreement. Because these questions must be answered by the fact finder, we reverse the entry of summary judgment and remand the case for further proceedings.\nReversed and remanded.\nJudges Wells and Lewis concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Stubbs, Perdue, Chesnutt, Wheeler & Clemmons, P.A., by Gary H. Clemmons, for plaintiff appellant.", "Hollowell, Eldridge & Ingersoll, P.A., by James E. Eldridge, for defendant appellee." ], "corrections": "", "head_matter": "MUTHER-BALLENGER, a North Carolina General Partnership v. GRIFFIN ELECTRONIC CONSULTANTS, INC.\nNo. 903SC83\n(Filed 30 October 1990)\n1. Sales \u00a7 17.1 (NCI3d)\u2014 spinal scanner \u2014 breach of express warranty \u2014 disclaimer\nThe trial court improperly granted summary judgment for defendant on a claim for breach of an express warranty that a scanner would completely perform quality diagnostic scanning of the human spine. Although defendant contended that it effectively disclaimed any express warranties by a disclaimer located in a service agreement, whether defendant made or breached any such express warranty is a question of fact to be decided by the trier of fact. N.C.G.S. \u00a7 25-2-313.\nAm Jur 2d, Sales \u00a7\u00a7 723 et seq., 826.\n2. Sales \u00a7 17.2 (NCI3d)\u2014 spinal scanner \u2014implied warranties of merchantability and fitness for a particular purpose \u2014disclaimer\nThe trial court erred by granting summary judgment for defendant on a claim for breach of the implied warranties of merchantability and fitness for a particular purpose arising from the sale of a spinal scanner where defendant\u2019s disclaimer language appeared only in a service agreement; defendant contends that the service agreement and contract were merged into a single contract; the quotation and service agreement were on separate pieces of paper; each document contains a separate executory section; each document could be read as an entire agreement in itself; and there was a material question of fact as to whether the quotation and the service contract constituted one contract.\nAm Jur 2d, Sales \u00a7\u00a7 747 et seq., 826.\n3. Evidence \u00a7 32.3 (NCI3d)\u2014 spinal scanner \u2014 modification of warranties \u2014 parol evidence rule not applicable\nSummary judgment was improperly granted for defendant on the issue of subsequent modification of warranties arising from the sale of a spinal scanner. The parol evidence rule would not bar evidence of oral modifications made subsequent- . ly to the written contract and there was a material issue of fact as to whether there was a subsequent modification. N.C.G.S. \u00a7 25-2-202.\nAm Jur 2d, Sales \u00a7\u00a7 826-832.\nAPPEAL by plaintiff from order entered 8 December 1989 by Judge Herbert O. Phillips, III, in CRAVEN County Superior Court. Heard in the Court of Appeals 18 September 1990.\nStubbs, Perdue, Chesnutt, Wheeler & Clemmons, P.A., by Gary H. Clemmons, for plaintiff appellant.\nHollowell, Eldridge & Ingersoll, P.A., by James E. Eldridge, for defendant appellee." }, "file_name": "0505-01", "first_page_order": 537, "last_page_order": 544 }