{ "id": 8527630, "name": "JOHN T. PAKE v. J. C. BYRD, BOBBY BYRD, and MACKIE WHITE, t/a BYRD FARMS", "name_abbreviation": "Pake v. Byrd", "decision_date": "1982-02-02", "docket_number": "No. 813DC520", "first_page": "551", "last_page": "555", "citations": [ { "type": "official", "cite": "55 N.C. App. 551" } ], "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": "254 S.E. 2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "660", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 273", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548873 ], "year": 1979, "pin_cites": [ { "page": "275", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/41/0273-01" ] }, { "cite": "248 N.E. 2d 142", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "108 Ill. App. 2d 397", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1595872 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-app-2d/108/0397-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-313", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 1965, "pin_cites": [ { "page": "(l)(a)" }, { "page": "(2)" }, { "page": "(2)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 558, "char_count": 10388, "ocr_confidence": 0.799, "pagerank": { "raw": 4.225666063248362e-07, "percentile": 0.9141270398390022 }, "sha256": "5a2b904e9dd7aa27b3081e698ab9758d580c9986d9a492ffe43ebc4d97b2d321", "simhash": "1:998e2aa038144991", "word_count": 1735 }, "last_updated": "2023-07-14T17:04:47.759339+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MORRIS and Judge VAUGHN concur." ], "parties": [ "JOHN T. PAKE v. J. C. BYRD, BOBBY BYRD, and MACKIE WHITE, t/a BYRD FARMS" ], "opinions": [ { "text": "MARTIN (Harry C.), Judge.\nIn order to determine the rights of the parties under these facts, we must first resolve the threshold question of whether, under the provisions of N.C.G.S. 25-2-313, defendants expressly warranted to plaintiff that the tractor was in good condition and free from major mechanical defects.\nThe statute states in pertinent part:\nAny 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.\nN.C. Gen. Stat. \u00a7 25-2-313(l)(a) (1965).\nWe note initially that secondhand goods may have an express warranty attached to them and that the warranty provisions are applied without regard to whether the seller is a manufacturer, merchant, or farmer. See 3 Williston on Sales \u00a7 17-4 (4th ed. 1974). Moreover, neither the formal words of an express warranty nor the seller\u2019s intent to afford such a warranty is necessary to fulfill the requirements of the statute. See N.C. Gen. Stat. \u00a7 25-2-313(2). \u201cThe single most important decision to make is whether the seller\u2019s statements were so regarded by the buyer as part of his reason for purchasing the goods.\u201d Williston, supra, \u00a7 17-5 at 12. Whether the parties to the transaction have created an express warranty is a question of fact. N.C. Gen. Stat. \u00a7 25-2-313, Comment 3 (1965).\nWe are persuaded under the facts before us that defendants expressly warranted to plaintiff that the tractor was in good condition and free from major mechanical defects. Plaintiff testified that his decision to purchase the tractor was initiated by the following advertisement which appeared in The News and Observer: \u201cJohn Deere, 3020, gas, PWR [power shift], with 4 by 16 bottom plow. Good condition. $5,000.00.\u201d (Emphasis ours.) Plaintiff further testified that defendants represented to him that \u201cthey had never had any trouble; [t]hat it was a good tractor\u201d; that \u201cthe only thing wrong with the tractor was that it was a used tractor; that it operated as good as when it was new\u201d; and that \u201cthe transmission was in good condition and the hydraulic was in good condition.\u201d Plaintiff allegedly told defendants that if he bought the tractor he would \u201cbuy it based on what they said because they had been operating the tractor and he had not.\u201d Plaintiffs father, who was present during these negotiations, corroborated plaintiffs testimony.\nDefendants did not deny that they represented the tractor as being in good condition, but denied ever giving plaintiff an unqualified statement that there was nothing wrong with it. Bobby Byrd testified that he responded to each of plaintiffs inquiries concerning the condition of the tractor by stating that \u201cas far as I know, it\u2019s good.\u201d Rather than intended as affirmations of fact, defendants contend that their responses were intended as mere opinion, \u201cpuffing\u201d or sales talk. See N.C. Gen. Stat. \u00a7 25-2-313(2).\nThe distinction between an affirmation or a description . . . from mere sales talk, or opinion, or puffing is so hazy that the courts in the final analysis will often rely on their own sense of fairplay, thereby evaluating the intentions of the parties to create an express warranty.\nWilliston, supra, \u00a7 17-5 at 10.\nAs the essential ingredient for this determination is whether the seller\u2019s affirmation became the basis of the bargain, we may look to certain objective criteria. The first is whether the statements were made before or after the sale was consummated. The second is whether the buyer knew of the seller\u2019s statements. Finally, where the buyer relies on his own skill and judgment, thereby essentially disclaiming any warranty, the seller\u2019s statements cannot be viewed as the basis of the bargain.\nIn the case sub judice, plaintiff was induced to inquire about the tractor by an advertisement representing it as being in good condition. Furthermore, defendants\u2019 statements were made prior to the purchase. Plaintiff testified that his decision to purchase was based on defendants\u2019 assurances. Although plaintiff and his father had many ye\u00e1rs of experience with tractors and knew something of their operation, Bobby Byrd testified that it would have been impractical for plaintiff to conduct more than an outward inspection of the engine. An examination by the buyer of goods does not necessarily discharge the seller from an express warranty if the defect was one which couldn\u2019t be located by the buyer. Id. \u00a7 17-5.\nWe hold that because of the following circumstances, defendants expressly warranted that, at the time of the sale, the tractor was in good condition and free from major mechanical defects: (1) Defendants had superior knowledge of the subject matter; (2) The circumstances were such that the plaintiff, as a reasonable man, was entitled to rely on the defendants\u2019 statements; (3) The statements were a part of the basis of the bargain. See 1 Anderson on the Uniform Commercial Code \u00a7 2-313:40 (2d ed. 1970).\nA second and more difficult question raised by these facts is whether plaintiff has offered sufficient evidence to establish breach of the express warranty. \u201cThe seller\u2019s warranty is not his personal guarantee concerning the continuous and future operation of the goods which he has sold.\u201d Williston, supra, \u00a7 17-5 at 13-14. See Blade v. Sloan, 108 Ill. App. 2d 397, 248 N.E. 2d 142 (1969). It is therefore necessary to determine from the record before us that the defects complained of existed at the time of the sale.\nIn Blade, a seller\u2019s statement on the date of the sale that a used combine was \u201cin good repair and ready to go into the field\u201d was held to be an express warranty. Sellers, however, recovered on buyer\u2019s failure to establish a breach. In that case the combine had been checked and any necessary repairs to put it in good operating condition were made a week prior to the sale. The sellers testified that they had never had problems with the motor of the combine and that the machine ran smoothly when driven two days before the sale.\nWe find the facts before us distinguishable and the evidence sufficient to support a finding that the defect of which plaintiff complains existed at the time of the sale. Defendants delivered the tractor to the plaintiff on a Saturday. The following Monday plaintiff first attempted to use the tractor. He immediately detected a knocking sound in the engine, turned the engine off, and notified his father. Plaintiff\u2019s father testified that when he telephoned the defendants to report the noise, J. C. Byrd \u201cadmitted that he had had trouble with that.\u201d However, he assured Mr. Pake, Sr. that \u201cit was nothing to worry about, just a minor adjustment,\u201d and that \u201csometimes the hydraulic system knocks.\u201d J. C. Byrd denied having this conversation.\nIsaac Boyd, a diesel mechanic, testified that when he checked the engine of the tractor, the bearing was locked to the shaft, the shaft was ruined, and the damage could have been caused by excessive wear in the motor. He stated that \u201cthere is no way of telling in advance that it is going to happen except when it begins to knock; that knocking was caused by loose motion in the bearing of the shaft, and that\u2019s a warning sign you had better get it fixed.\u201d\nBased on this testimony, the evidence is sufficient to support the trial court\u2019s finding that the defective condition of the tractor existed at the time of the purchase.\nWhere the trial judge sits as the trier of the facts, his findings of fact are conclusive on appeal when supported by competent evidence. This is true even though there may be evidence in the record to the contrary which could sustain findings to the contrary. . . . The trial judge is both judge and jury, and he has the duty to pass upon the credibility of the witnesses who testify. He decides what weight shall be given to the testimony and the reasonable inferences to be drawn therefrom. The appellate court cannot substitute itself for the trial judge in this task.\nGeneral Specialties Co. v. Teer Co., 41 N.C. App. 273, 275, 254 S.E. 2d 658, 660 (1979) (citations omitted).\nThe decision of the trial court is\nAffirmed.\nChief Judge MORRIS and Judge VAUGHN concur.", "type": "majority", "author": "MARTIN (Harry C.), Judge." } ], "attorneys": [ "Bennett, McConkey & Thompson, by Thomas S. Bennett, for plaintiff appellee.", "Bryan, Jones & Johnson, by Robert C. Bryan, for defendant appellants." ], "corrections": "", "head_matter": "JOHN T. PAKE v. J. C. BYRD, BOBBY BYRD, and MACKIE WHITE, t/a BYRD FARMS\nNo. 813DC520\n(Filed 2 February 1982)\n1. Sales \u00a7 5\u2014 used tractor \u2014 express warranty given\nIn an action by plaintiff for the refund of the purchase price of a used tractor, the trial court did not err in finding that defendants expressly warranted that, at the time of the sale, the tractor was in good condition and free from mechanical defect where: (1) defendants had superior knowledge of the subject matter; (2) the circumstances were such that the plaintiff, as a reasonable man, was entitled to rely on the defendant\u2019s statements; (3) the statements were a part of the basis of the bargain.\n2. Sales \u00a7 5\u2014 used tractor \u2014 breach of express warranty\nPlaintiff offered sufficient evidence to establish breach of an express warranty that a used tractor he purchased was in good condition and free from major mechanical defects where the evidence was sufficient to support the trial court\u2019s finding that the defective condition of the tractor existed at the time of purchase.\nAPPEAL by defendants from Phillips (Herbert OJ, Judge. Judgment filed 5 March 1981 in District Court, CARTERET County. Heard in the Court of Appeals 13 January 1982.\nDefendants appeal the decision of the trial court granting plaintiff a recovery, under an express warranty, for the refund of the purchase price of a used tractor. The transaction which is the subject matter of this litigation involved the purchase for $4,013 of a used John Deere 3020 gas tractor which, shortly after the sale, required repairs for major mechanical defects, the estimated cost of which would have been $3,500. In his complaint plaintiff alleged that at the time of the sale, defendants had represented the tractor as being in good operating condition. Plaintiff subsequently notified defendants concerning the defects, tendered its return, and demanded refund of the purchase price. Defendants answered, stating that the sale was \u201cas is\u201d and that no warranties were made regarding the condition of the tractor.\nBennett, McConkey & Thompson, by Thomas S. Bennett, for plaintiff appellee.\nBryan, Jones & Johnson, by Robert C. Bryan, for defendant appellants." }, "file_name": "0551-01", "first_page_order": 583, "last_page_order": 587 }