{
  "id": 8547342,
  "name": "RONALD OR SALLY A. BERUBE v. MOBILE HOMES SALES AND SERVICE",
  "name_abbreviation": "Berube v. Mobile Homes Sales & Service",
  "decision_date": "1975-12-17",
  "docket_number": "No. 754DC506",
  "first_page": "160",
  "last_page": "163",
  "citations": [
    {
      "type": "official",
      "cite": "28 N.C. App. 160"
    }
  ],
  "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": [],
  "analysis": {
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    "char_count": 6560,
    "ocr_confidence": 0.561,
    "sha256": "ec42e3d899285bf748c7d8c3a7c6065e410596cf3a9395a19f964abc980139ec",
    "simhash": "1:5644d3a9f6bdaf8a",
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  "last_updated": "2023-07-14T22:58:46.500479+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Britt and Clark concur."
    ],
    "parties": [
      "RONALD OR SALLY A. BERUBE v. MOBILE HOMES SALES AND SERVICE"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nDefendant first assigns error to denial of his motions for dismissal. Defendant argues that under G.S. 25-2-511(1), tender of payment is a condition precedent to the seller\u2019s duty of delivery, and therefore it did not breach the contract by refusing to install the trailer until the full purchase price was paid. Defendant contends that all the evidence shows it was the plaintiffs, not the defendant, who breached the contract by refusing to go through with purchase of the trailer as originally agreed. However, G.S. 25-2-511(1) provides that \u201c\\_u\\nless otherwise agreed tender of payment is a condition to the seller\u2019s duty to tender and complete any delivery.\u201d (Emphasis added.) Here, according to plaintiffs\u2019 evidence, the parties did otherwise agree. We find no error in the denial of defendant\u2019s motions for dismissal.\nDefendant further contends the court erred in its charge to the jury in not declaring and explaining the law arising on the evidence given in this case as required by G.S. 1A-1, Rule 51(a). The factual issue around which this case revolves is whether the defendant agreed to install the mobile home before full payment was received. If plaintiffs\u2019 evidence is accepted as true, defendant did make such an agreement and it breached the agreement by failing to set up the trailer on 11 November as it had agreed to do. On the other hand if defendant\u2019s evidence is believed, no such agreement was made, and plaintiffs breached the contract by repudiating it. The court did not instruct the jury as to the issue of the existence or nonexistence of such an agreement and the resultant consequences, but instead explained the issue as being \u201cwhether the plaintiff Berube rejected the deal, or accepted it,\u201d defining the terms \u201cacceptance\u201d and \u201crejection,\u201d concepts which do not appear to be directly relevant to the facts of this case. The jurors were not correctly apprised of the issue before them and the law relevant thereto. For failure of the trial judge to comply with the mandate of Rule 51(a), defendant is entitled to a\nNew trial.\nJudges Britt and Clark concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Billy Sandlin for plaintiff appellees.",
      "Zennie L. Riggs for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "RONALD OR SALLY A. BERUBE v. MOBILE HOMES SALES AND SERVICE\nNo. 754DC506\n(Filed 17 December 1975)\n1. Uniform Commercial Code \u00a7 17\u2014 sale of mobile home \u2014 tender of full payment \u2014\u2022 other agreement\nIn an action to recover a deposit on a mobile home, plaintiff\u2019s evidence was sufficient to support a jury finding that defendant seller agreed to install the mobile home before full payment was received and that tender of payment was therefore not a condition precedent to the seller\u2019s duty of delivery. G.S. 25-2-511(1).\n2. Uniform Commercial Code \u00a7 17\u2014 sale of mobile home \u2014 delivery before payment \u2014 necessity for instructions\nIn an action to recover a deposit on a mobile home, the trial court erred in failing to instruct the jury as to the existence or nonexistence of an agreement to install the mobile home before full payment was received and the resultant consequences.\nAppeal by defendant from Crumpler, Judge. Judgment entered 6 May 1975 in District Court, Onslow County. Heard in the Court of Appeals 25 September 1975.\nPlaintiffs brought this small claim action to recover $500.00 which they had paid defendant as a deposit on a mobile home. The Magistrate gave judgment for plaintiffs in the sum of $300.00 and plaintiffs appealed. On trial de novo before judge and jury in the District Court, plaintiffs\u2019 evidence showed the following. On 29 October 1974 plaintiffs agreed to buy a mobile home from defendant for $8,600.00. Plaintiffs were to pay a deposit of $500.00 and planned to obtain the balance of $8,100.00 by borrowing from Navy Federal Credit Union. On 6 November 1974 plaintiffs reported to defendant\u2019s salesman that their application for the loan had been approved by the Credit Union, and they asked if defendant would \u201cset up\u201d the mobile home for them if they paid the $500.00 deposit. The salesman told plaintiffs it was company policy not to set up a trailer until they had all the money, but he would ask defendant\u2019s president and perhaps he would approve it. The next day the salesman informed plaintiffs they could have their trailer prepared on Monday, 11 November 1974. On Friday, 8 November, plaintiffs paid defendant the $500.00 deposit plus $53.00 for insurance, with the agreement that the trailer would be set up for them on the following Monday. However, defendant did not set up the trailer on Monday as agreed, and as a result plaintiffs incurred extra expense in returning their furniture to storage. On Monday night plaintiffs told defendant\u2019s salesman they wanted their deposit returned because defendant had not moved the trailer as promised. The salesman replied, \u201cWell, there\u2019s no problem with the $500.00, you can have that back.\u201d On Friday, 15 November, plaintiffs told the salesman they still wanted the trailer but also wanted the deposit back. The salesman again assured plaintiffs there was \u201cno problem,\u201d that if they needed it, they could \u201cjust come in and get it.\u201d On Monday, 18 November 1974, plaintiffs went to defendant\u2019s office and demanded return of their $500.00 deposit. Defendant\u2019s president refused to return the full amount of the deposit and offered to return only $275.00. He told plaintiffs they had until noon of the following day to come in and accept the deal originally made for the trailer, or take the $275.00, or defendant would \u201cjust call the whole deal off.\u201d On the following day, 19 November 1974, plaintiffs brought this action.\nDefendant offered evidence that the salesman told plaintiffs that they had to await delivery of the trailer until check from Navy Federal Credit Union was in hand. This was in accordance with company policy not to set up a trailer until the full purchase price was paid, unless the loan was obtained\u2019 through certain approved lenders, not including Navy Federal-Credit Union. Defendant never agreed to install the trailer before payment of the full purchase price, and no mention was made of guranteed delivery by a certain date. When plaintiffs asked to have their full deposit refunded, defendant did not at any time agree to do so because it had gone to some expense winterizing the mobile home when this sale fell through, and this expense would not have been necessary if plaintiffs had purchased the trailer as they had agreed to do.\nThe jury returned a verdict for plaintiffs in the amount of $499.00 and judgment was entered accordingly. Defendant appealed.\nBilly Sandlin for plaintiff appellees.\nZennie L. Riggs for defendant appellant."
  },
  "file_name": "0160-01",
  "first_page_order": 188,
  "last_page_order": 191
}