{ "id": 8552581, "name": "TENNESSEE CAROLINA TRANSPORTATION, INC. v. STRICK CORPORATION", "name_abbreviation": "Tennessee Carolina Transportation, Inc. v. Strick Corp.", "decision_date": "1972-11-22", "docket_number": "No. 7226SC672", "first_page": "498", "last_page": "504", "citations": [ { "type": "official", "cite": "16 N.C. App. 498" } ], "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": "188 S.E. 2d 441", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574497 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0174-01" ] }, { "cite": "131 S.E. 2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "259 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562342 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0709-01" ] }, { "cite": "79 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8685790 ], "year": 1878, "opinion_index": 0, "case_paths": [ "/nc/79/0122-01" ] }, { "cite": "123 S.E. 2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "256 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571475 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/256/0110-01" ] }, { "cite": "101 A. 339", "category": "reporters:state_regional", "reporter": "A.", "year": 1917, "opinion_index": 0 }, { "cite": "257 Pa. 206", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1032375 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/pa/257/0206-01" ] }, { "cite": "119 A. 2d 193", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1956, "opinion_index": 0 }, { "cite": "383 Pa. 448", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1261979 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/pa/383/0448-01" ] }, { "cite": "183 A. 2d 544", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1962, "opinion_index": 0 }, { "cite": "408 Pa. 276", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1308379 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/pa/408/0276-01" ] }, { "cite": "246 Ark. 101", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604145 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/ark/246/0101-01" ] }, { "cite": "320 F. Supp. 442", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5547644 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/f-supp/320/0442-01" ] }, { "cite": "329 F. 2d 585", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 124501 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/f2d/329/0585-01" ] }, { "cite": "49 S.E. 952", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1905, "opinion_index": 0 }, { "cite": "137 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656924 ], "year": 1905, "opinion_index": 0, "case_paths": [ "/nc/137/0497-01" ] }, { "cite": "171 S.E. 82", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1933, "opinion_index": 0 }, { "cite": "205 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628256 ], "year": 1933, "opinion_index": 0, "case_paths": [ "/nc/205/0286-01" ] }, { "cite": "178 S.E. 2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "10 N.C. App. 323", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553702 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/10/0323-01" ] }, { "cite": "55 S.E. 836", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1906, "opinion_index": 0 }, { "cite": "143 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658101 ], "year": 1906, "opinion_index": 0, "case_paths": [ "/nc/143/0439-01" ] } ], "analysis": { "cardinality": 683, "char_count": 13680, "ocr_confidence": 0.556, "pagerank": { "raw": 5.7128131666882955e-08, "percentile": 0.3584869233688914 }, "sha256": "61969b95ea97b4f3c2e8f32f4ba670a9b3c651f875e8ff546704c13f02cd8d53", "simhash": "1:97c9f8ea490ef79b", "word_count": 2301 }, "last_updated": "2023-07-14T16:27:31.279819+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Brock concurs.", "Judge Britt dissents." ], "parties": [ "TENNESSEE CAROLINA TRANSPORTATION, INC. v. STRICK CORPORATION" ], "opinions": [ { "text": "MALLARD, Chief Judge.\nPlaintiff executed six separate instruments during the period of 30 August 1967 to 31 October 1967. Each of these instruments is denominated \u201cTime Sale Contract and Security-Agreement\u201d and each describes twenty-five of the \u201cNew Strick Model 7420U33NSAOW 42 ft. closed top tandem axle semitrailers\u201d purchased by plaintiff from defendant. In each of these instruments there appears the following language:\n\u201c * * * This instrument contains the entire agreement between the parties, is made and accepted in Pennsylvania, and shall be governed and interpreted according to the laws of Pennsylvania. * * * \u201d\nIt is settled law in North Carolina that matters bearing upon the execution, interpretation, and validity of a contract are determined by the law of the place where it was made. Cannaday v. R. R., 143 N.C. 439, 55 S.E. 836 (1906) ; Industries, Inc. v. Blair, 10 N.C. App. 323, 178 S.E. 2d 781 (1971). And the law of the place where rights were acquired or liabilities incurred also governs the award of damages, they being substantive in nature. Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82 (1933) ; Hancock v. Telegraph Co., 137 N.C. 497, 49 S.E. 952 (1905).\nAccording to the rules as set forth above, Pennsylvania law governs the interpretation of the contract herein and the measure of damages for breach of the contract. However, the laws of North Carolina govern matters of procedure, including the rules as to the sufficiency of the evidence to withstand the motion for a directed verdict. 2 Strong, N.C. Index 2d, Courts, \u00a7 21.\nDefendant contends that the court committed error in failing to grant its motion for a directed verdict on the grounds that the evidence failed to establish a claim against the defendant and that the court committed prejudicial error in the admission of some of plaintiff\u2019s evidence. We do not agree. We hold that the evidence was sufficient to withstand defendant\u2019s motion for a directed verdict and that the court did not commit prejudicial error in the admission of evidence.\nThe defendant also contends that the court committed error in failing to submit an issue on disclaimer. This contention presents the question of the validity of the alleged disclaimer.\nIn subsection (h) of each of the \u201cTime Sale Contract and Security Agreements,\u201d there appears in the same color as the other printing therein and in the smallest print used therein, the following: \u201cThere are no promises, understandings, agreements, representations, or warranties (except the warranties set forth in the Sales Order if the goods covered hereby are new), express or implied, respecting the Equipment which are not specified herein.\u201d No express warranties are set forth in the Sales Order.\nThe laws of Pennsylvania are applicable to the interpretation of the contract.\n12A Purdon\u2019s Penna. Stat. Ann., \u00a7 2-316(2) reads in part:\n\u201c * * * (T)o exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. * * * \u201d\n12A Purdon\u2019s Penna. Stat. Ann., \u00a7 1-201(10) reads in part:\n\u201cA term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. * * * Language in the body of a form is \u2018conspicuous\u2019 if it is in larger or other contrasting type or color. * * * \u201d\nIn Pennsylvania, an attempted disclaimer which is in the body of an instrument and in type of the same size and color as its other provisions is ineffective as a matter of law. Boeing Airplane Company v. O\u2019Malley, 329 F. 2d 585 (8th Cir. 1964) ; Greenspun v. American Adhesives, Inc., 320 F. Supp. 442 (E.D. Penn. 1970) ; S.F.C. Acceptance Corp. v. Ferree, 39 Pa. Dist. & Co. R. 2d 225 (39 D. & C. 2d 225) [1966] ; see also Mack Trucks of Ark., Inc. v. Jet Asphalt & Rock Co., 246 Ark. 101, 437 S.W. 2d 459 (1969).\nWhether the attempted disclaimer is effective or not is a question of law for the court and not one of fact for the jury. 1 Anderson, Uniform Commercial Code, \u00a7 2-316:18 (2d ed. 1970); 12A Purdon\u2019s Penna. Stat. Ann., \u00a7 1-201 (10).\nIn 1 Anderson, Uniform Commercial Code, \u00a7 2-316:4 (2d ed. 1970), it is said:\n\u201cThe prime objective of UCC \u00a7 2-316 is to avoid the surprise or fine print waiver of rights by the buyer. This is made clear by the requirement of conspicuousness for waiver clauses. . . .\u201d Cited in Greenspun v. American Adhesives, Inc., supra.\nIn light of the rules set forth above, the attempted disclaimer herein was void as a matter of law and the trial judge did not commit error in failing to submit that issue to the jury.\nDefendant further contends that the court committed error in instructing the jury as to the breach of the contract, the disclaimer, and on the issue of damages.\nThe defendant requested the court to instruct the jury on the second and third issues as follows:\n\u201c1. As to the Second Issue: If you find from the evidence and the greater weight thereof, that there was an implied warranty of fitness for use of said trailers in the General Motor freight as a carrier of general cargo and you further find from the evidence and the greater weight thereof that there was a breach of said implied warranty then you must also find from the evidence and the greater weight thereof that the plaintiff upon discovering said breach gave timely notice to the defendant in what respect said implied warranty was breached to allow the defendant the opportunity to correct said condition to prevent any damages or to minimize or lessen the damages. If you find from the evidence and the greater weight thereof that the plaintiff gave such notice, you will answer the second issue \u2018yes\u2019; if you fail to so find you shall answer the second issue \u2018no\u2019 and that will end the lawsuit. If you answer the second issue \u2018yes,\u2019 you will then go to the third issue. (U.C.C. 2-607(3) (a)).\n2. As to the Third Issue: That if you answer the first and second issues yes, I hereby instruct you that if you reach the third issue, the measure of damages is the difference between the value of the trailers actually received and the value they would have been if they were as warranted, this rule or measure of damages applies to any trailer you find from the evidence and by its greater weight to have been defective at the time of delivery (U.C.C. 2-607 (4)) and Wagner Tractor, Inc. v. Shields, 381 Fed 2d 441.\u201d\nThe court gave these requested instructions almost verbatim and the defendant cannot complain as to that. When the charge is considered as a whole, no prejudicial error appears therein.\nThe defendant also contends that the court erred in allowing interest on the judgment from 31 October 1967.\nIn 1 Restatement of Conflict of Laws 2d, \u00a7 207 (1971), it is stated that \u201c (t) he measure of recovery for a breach of contract is determined by the local law of the state selected by application of the rules of \u00a7\u00a7 187-188.\u201d Under said \u00a7 187, questions involving the measure of recovery for a breach of contract are determined by the law chosen by the parties, if they have made an effective choice. The parties in this case effectively chose that the agreement concerning the sale and purchase should be governed and interpreted by the laws of Pennsylvania. In Section \u201ce\u201d of the Comment under \u00a7 207, it is stated:\n\u201cThe local law of the state selected by application of the rule of this Section determines whether plaintiff can recover interest, and, if so, the rate, upon damages awarded him for the period between the breach of contract and the rendition of judgment. * * *\u201d\nTherefore, the law of Pennsylvania applies in determining whether plaintiff may recover interest.\nPennsylvania law is in accord with the rule stated in the Restatement of Contracts, \u00a7 337 (1932) which reads as follows:\n\u201c\u00a7 337. When Interest is Recoverable as Damages.\nIf the parties have not by contract determined otherwise, simple interest at the statutory legal rate is recoverable as damages for breach of contract as follows:\n(a) Where the defendant commits a breach of a contract to pay a definite sum of money, or to render a performance the value of which in money is stated in the contract or is ascertainable by mathematical calculation from a standard fixed in the contract or from established market prices of the subject matter, interest is allowed on the amount of the debt or money value from the time performance was due, after making all the deductions to which the defendant may be entitled.\u201d\nUnder Pennsylvania law, whether interest from the date of breach is allowable under the circumstances of this case is discretionary with the trial court. See Penneys v. Pa. Railroad Co., 408 Pa. 276, 183 A. 2d 544 (1962); Mauch v. Pbgh. Pension Board, 383 Pa. 448, 119 A. 2d 193 (1956) ; Babayan v. Reed, 257 Pa. 206, 101 A. 339 (1917). And, we find no abuse of discretion warranting a reversal of the allowance herein of interest on the damages awarded from the date of breach of the warranty sued upon.\nThe North Carolina cases appear to be in accord. See Construction Co. v. Crain and Denbo, Inc., 256 N.C. 110, 123 S.E. 2d 590 (1961), distinguishing the early law as set forth in Lewis v. Rountree, 79 N.C. 122 (1878) ; General Metals v. Manufacturing Co., 259 N.C. 709, 131 S.E. 2d 360 (1963) ; Investment Properties of Asheville, Inc. v. Allen, 281 N.C. 174, 188 S.E. 2d 441 (1972).\nWe have considered all of appellant\u2019s assignments of error that are properly brought forward and are of the opinion that no prejudicial error appears.\nNo error.\nJudge Brock concurs.\nJudge Britt dissents.", "type": "majority", "author": "MALLARD, Chief Judge." } ], "attorneys": [ "Wallace S. Osborne, and Waggoner, Hasty & Kratt by William J. Waggoner for plaintiff appellee.", "Welling & Miller by George J. Miller and Charles M. Welling, and Womble, Carlyle, Sandridge & Rice by W. P. Sandridge, Sr., for defendant appellant." ], "corrections": "", "head_matter": "TENNESSEE CAROLINA TRANSPORTATION, INC. v. STRICK CORPORATION\nNo. 7226SC672\n(Filed 22 November 1972)\n1. Courts \u00a7 21 \u2014 interpretation and validity of contract \u2014 what law ap-lies\nMatters bearing upon the execution, interpretation and validity of a contract are determined by the law of the place where it was made.\n2. Courts \u00a7 21; Damages \u00a7 2 \u2014 damages \u2014 what law applies\nThe law of the place where rights were acquired or liabilities incurred governs the award of damages, they being substantive in nature.\n3. Courts \u00a7 21 \u2014 contract entered in another state \u2014 what law applies\nPennsylvania law governs the interpretation of a contract entered in that state and the measure of damages for breach of the contract, and North Carolina law governs matters of procedure, including the rules as to the sufficency of the evidence to withstand the motion for directed verdict.\n4. Sales \u00a7 17 \u2014 breach of implied warranty of fitness \u2014 sufficiency of evidence\nPlaintiff\u2019s evidence was sufficient to be submitted to the jury in an action to recover damages for breach of an implied warranty of fitness of trailers purchased from defendant.\n5. Sales \u00a7 5 \u2014 attempted disclaimer of warranty \u2014 voidness under Pennsylvania law\nAttempted disclaimer of warranty in a sales contract entered in Pennsylvania was void under Pennsylvania law where it was printed in the same color as the other printing in the contract and was in the smallest print used therein.\n6. Courts \u00a7 21; Interest \u00a7 1 \u2014 interest as damages for breach of contract\u2014 what law applies\nWhere a contract provided that it should be governed and interpreted according to the laws of Pennsylvania, the laws of Pennsylvania determined whether plaintiff could recover interest as damages for breach of the contract.\n7. Interest \u00a7 1 \u2014 interest on damages for breach of warranty\nThe trial judge, in applying Pennsylvania law, did not abuse his discretion in allowing interest on the amount of damages awarded for breach of warranty from the date the breach occurred.\nJudge Beitt dissents.\nAppeal by defendant from McLean, Judge, 14 February 1972 Session of Superior Court held in MECKLENBURG County.\nThe plaintiff is a Tennessee corporation with its home offices in Nashville, Tennessee, where it is engaged in the trucking industry as a common cargo carrier. The plaintiff operates in several states, including the State of North Carolina, under its Interstate Commerce Commission franchise.\nThe defendant is a trailer manufacturer incorporated in the State of Pennsylvania, where its home offices are located. The defendant has a place of business in Charlotte where it operates a sales, service and trailer repair shop.\nOn 10 July 1967 in the State of Pennsylvania, the plaintiff entered into a contract to purchase 150 trailers from the defendant for Five Thousand Six Hundred Ninety-Five Dollars ($5,695.00) each. At the time the contract was entered into, the trailers were not in existence and were to be built and delivered to the plaintiff in groups of 50 each on or about September 1, October 10, and October 25,1967.\nPlaintiff sought damages for breach of an implied warranty of fitness of use for the particular purpose for which the trailers were sold by defendant and purchased by plaintiff.\nDefendant denied that there was an implied warranty or that there was any breach of warranty. Defendant also alleged that plaintiff had executed several security instuments in which there was a disclaimer or exclusion of warranties.\nAfter hearing the evidence of both parties, the jury returned a verdict in favor of the plaintiff and awarded damages in the amount of $215,600. The trial judge signed judgment for that amount and allowed interest thereon from 31 October 1967. The defendant, having moved in apt time for a directed verdict, which was denied, filed a written motion for judgment notwithstanding the verdict, which was similarly denied. Defendant appealed, assigning error.\nWallace S. Osborne, and Waggoner, Hasty & Kratt by William J. Waggoner for plaintiff appellee.\nWelling & Miller by George J. Miller and Charles M. Welling, and Womble, Carlyle, Sandridge & Rice by W. P. Sandridge, Sr., for defendant appellant." }, "file_name": "0498-01", "first_page_order": 522, "last_page_order": 528 }