#### RANCO INDUSTRIAL CORPORATION v. PATELOS DOOR CORPORATION and S. N. PATELOS

No. 728DC810

(Filed 20 December 1972)

Sales § 13— misrepresentation in sale of goods — award of damages proper Plaintiff was not prejudiced by the fact that the trial court may have applied an inappropriate measure of damages where the amount awarded defendants on their counterclaim for misrepresentation in the sale of goods was no more than they were entitled to, as a matter of law, under the court’s findings of fact.

Appeal by plaintiff from Nowell, District Judge, 17 July 1972 Session of District Court held in Wayne County.

Plaintiff instituted this action for the claim and delivery of a roof spray kit that was in defendants’ possession. The kit was loaned to defendants by plaintiff to use in applying a roof spray sold to defendants by plaintiff for the price of $407.00. Defendants filed a counterclaim, and offered evidence tending to show that the spray preparation was misrepresented by plaintiff, that it was unfit for the particular use for which it was sold, and that after one-third of the amount purchased had been applied to defendants’ roof, it had to be removed at a cost to defendants of $150.00.

The court allowed plaintiff’s motion for summary judgment on the question of its right to the possession of the spray kit and ordered defendants to deliver possession of the kit forthwith to plaintiff. Sitting without a jury, the court then heard evidence relating to defendants’ counterclaim, and after making findings of fact and conclusions of law consistent with the evidence, entered judgment ordering defendants to return to plaintiff the unused portion of the spray and awarding judgment to defendants in the sum of $271.30, being the amount defendants paid for the portion of the spray which they were ordered to return. Plaintiff appeals from this judgment.

Turner and Harrison by Fred W. Harrison for plaintiff appellant.

Baddour and Lancaster by Philip A. Baddour, Jr., for defendant appellees.

*156GRAHAM, Judge.

Plaintiff’s assignments of error to the admission of testimony by the individual defendant as to the representations made by plaintiff’s agent when the spray was purchased are overruled.

The findings of fact made by the trial judge are supported by the evidence and must be sustained. The $271.30 awarded defendants is no more than they were entitled to, as a matter of law, under the court’s findings of fact. Under these circumstances, plaintiff was not prejudiced by the fact the court may have applied an inappropriate measure of damages. Cf. Motors, Inc. v. Allen, 11 N.C. App. 381, 181 S.E. 2d 134.

No error.

Judges Hedrick and Vaughn concur.