{ "id": 8554863, "name": "DOUGLAS O. WILSON, Plaintiff v. E-Z FLO CHEMICAL COMPANY, a Division of Growers Service, Corporation, Defendant and Third Party Plaintiff v. UNIROYAL CHEMICAL, a Division of Uniroyal, Incorporated, Third Party Defendant", "name_abbreviation": "Wilson v. E-Z Flo Chemical Co.", "decision_date": "1972-02-23", "docket_number": "No. 724SC170", "first_page": "610", "last_page": "612", "citations": [ { "type": "official", "cite": "13 N.C. App. 610" } ], "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": "148 S.E. 2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559255 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0339-01" ] }, { "cite": "152 S.E. 2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "269 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563758 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/269/0364-01" ] }, { "cite": "8 S.E. 2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "pin_cites": [ { "page": "816" } ], "opinion_index": 0 }, { "cite": "217 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612449 ], "year": 1940, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/nc/217/0542-01" ] } ], "analysis": { "cardinality": 348, "char_count": 7033, "ocr_confidence": 0.528, "pagerank": { "raw": 2.279034880960449e-07, "percentile": 0.7848868795053302 }, "sha256": "2f4bbcc90dc8c945a8316d78ad08ffd6e359b7f0d6016431ec59a9ec438c8820", "simhash": "1:76f9c702b61a2844", "word_count": 1182 }, "last_updated": "2023-07-14T21:18:15.024983+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Brock and Vaughn concur." ], "parties": [ "DOUGLAS O. WILSON, Plaintiff v. E-Z FLO CHEMICAL COMPANY, a Division of Growers Service, Corporation, Defendant and Third Party Plaintiff v. UNIROYAL CHEMICAL, a Division of Uniroyal, Incorporated, Third Party Defendant" ], "opinions": [ { "text": "BEITT, Judge.\nAppellant first contends that the evidence was not sufficient to support a finding by the court that Uniroyal breached a warranty of fitness for a particular use. We hold that the evidence was sufficient to support the finding. G.S. 25-2-314(1) provides, \u201cUnless excluded or modified (\u00a7 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 G.S. 25-2-314(2) (c) provides, \u201cGoods to be merchantable must be at least such as are fit for the ordinary purposes for which such goods are used;....\u201d G.S. 25-2-315 provides, \u201cWhere 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, there is unless excluded or modified under the next section [\u00a7 25-2-316] an implied warranty that the goods shall be fit for such purpose.\u201d\nIn this case Uniroyal caused to be placed on the market a product, Alanap, to kill weeds and grasses when applied to certain crops enumerated on the label, among which is squash. E-Z Flo was a distributor of Alanap. Certain manuals were provided E-Z Flo by Uniroyal to guide E-Z Flo in the sale of the product. Everything else about the product was solely within the knowledge of Uniroyal. The manual referred to by E-Z Flo recommended Alanap for squash as a pre-emergent herbicide. The containers were sealed and were delivered by E-Z Flo as received from Uniroyal. The product was warranted by Uniroyal to be fit for the uses described and shown upon the labels attached to the containers. No warranties were made to the plaintiff by E-Z Flo other than those which were made to it by Uniroyal. \u201cWe know of no reason why * * * they (assurances on the label) should not constitute a warranty on the part of the original seller and distributor running with the product into the hands of the consumer, for whom it was intended.\u201d Simpson v. Oil Co., 217 N.C. 542, 546, 8 S.E. 2d 813, 816 (1940). The evidence was plenary to show that Uniroyal expressly and impliedly warranted to the world that its product, Alanap, was fit and proper to be used as a pre-emergent herbicide for control of grasses and weeds in a squash crop. In light of the evidence, the question was one of fact for the judge sitting as a jury to determine. The court\u2019s1 findings of fact are conclusive upon appeal if supported by any competent evidence. Pendergrass v. Massengill, 269 N.C. 364, 152 S.E. 2d 657 (1967).\nAppellant next contends that even if there were a breach of warranty by Uniroyal, there was active and intervening negligence by E-Z Flo. Appellant contends that the failure of E-Z Flo to read the warning in the manual against the use of Alanap \u201con vine crops of any kind when growing conditions are very adverse; namely in early spring when weather is cold and wet\u201d constituted negligence which precludes indemnity from Uniroyal. From the evidence presented at trial, it does not appear that the growing conditions were \u201cvery adverse\u201d as defined by Uniroyal in its manual. Therefore, the failure to read the warning would seem to be immaterial, but the resulting question of negligence is again a question of fact. The parties having waived trial by jury, the findings of fact, supported as they are by the evidence, are binding upon this court on appeal. Young v. Insurance Co., 267 N.C. 339, 148 S.E. 2d 226 (1966).\nThe judgment appealed from is\nAffirmed.\nJudges Brock and Vaughn concur.", "type": "majority", "author": "BEITT, Judge." } ], "attorneys": [ "Chambliss, Paderick & Warrick by Joseph B. Chambliss for third party plaintiff appellee.", "Smith, Anderson, Dor sett, Blount and Ragsdale by John L. Jernigan for third party defendant appellant." ], "corrections": "", "head_matter": "DOUGLAS O. WILSON, Plaintiff v. E-Z FLO CHEMICAL COMPANY, a Division of Growers Service, Corporation, Defendant and Third Party Plaintiff v. UNIROYAL CHEMICAL, a Division of Uniroyal, Incorporated, Third Party Defendant\nNo. 724SC170\n(Filed 23 February 1972)\n1. Sales \u00a7 17; Uniform Commercial Code \u00a7 15\u2014 chemical herbicide \u2014 squash crop \u2014 warranty of fitness\nThe evidence was sufficient to support the trial court\u2019s finding that the manufacturer of the chemical \u201cAlanap\u201d expressly and impliedly warranted that it was fit and proper to be used as a pre-emergent herbicide for control of grasses and weeds in a squash crop, where it tended to show that the chemical was placed on the market for use in killing weeds and grasses when applied to certain crops enumerated on the label, including squash, and that a manual provided by the manufacturer recommended the chemical for squash as a pre-emergent herbicide.\n2. Negligence \u00a7 10; Sales \u00a7 17\u2014 breach of warranty of fitness \u2014 action against manufacturer \u2014 intervening negligence by retailer\nIn an action against a manufacturer for breach of warranty of fitness of a pre-emergent herbicide for use on a squash crop, the failure of the retailer of the herbicide to give plaintiff the warning furnished by the manufacturer in its herbicide manual against use of the product \u201con vine crops of any kind when growing conditions are very adverse; namely in early spring when weather is cold and wet\u201d held not to constitute intervening negligence by the retailer Where it does not appear from the evidence that the growing conditions were \u201cvery adverse,\u201d as defined in the manufacturer\u2019s manual, when the herbicide was used by plaintiff.\nAppeal by third party defendant from James, Judge, April 1971 Session of Sampson Superior Court.\nPlaintiff brought this action against E-Z Flo Chemical Company, defendant and third party plaintiff, (E-Z Flo) to recover damages alleged to have resulted from the use of a chemical known as Alanap which was applied by plaintiff to a newly planted squash crop. Plaintiff alleged breach of an express and implied warranty that the product was suitable for use as a pre-emergent herbicide and that E-Z Flo knew the purpose for which the product was intended. E-Z Flo denied such breach and filed a third party complaint against Uniroyal Chemical (Uniroyal) as a third party defendant. E-Z Flo alleged the primary liability for plaintiff\u2019s loss rested with the manufacturer, Uniroyal, maintaining that no warranties were made by E-Z Flo to plaintiff other than those made to E-Z Flo by Uniroyal. Uniroyal denied any breach of warranty and alleged as an affirmative defense the active and intervening negligence of E-Z Flo in not giving plaintiff the warning furnished by Uniroyal in its Herbicide Marketing Manual against the use of Alanap \u201con vine crops of any kind when growing conditions are very adverse; namely in early spring when weather is cold and wet.\u201d\nBy consent the court heard the case without a jury. The court found that plaintiff was damaged in the amount of $7,620 by the breach of warranty on the part of E-Z Flo, but that Uniroyal was primarily liable to plaintiff by virtue of a breach of warranty in its manufacture and distribution of Alanap. Uniroyal appealed.\nChambliss, Paderick & Warrick by Joseph B. Chambliss for third party plaintiff appellee.\nSmith, Anderson, Dor sett, Blount and Ragsdale by John L. Jernigan for third party defendant appellant." }, "file_name": "0610-01", "first_page_order": 634, "last_page_order": 636 }