{ "id": 8519617, "name": "JAMES GORDON, t/a G & G UNLIMITED, and G & G UNLIMITED, INC. v. NORTHWEST AUTO AUCTION, INC.", "name_abbreviation": "Gordon v. Northwest Auto Auction, Inc.", "decision_date": "1990-01-16", "docket_number": "No. 8920DC335", "first_page": "88", "last_page": "92", "citations": [ { "type": "official", "cite": "97 N.C. App. 88" } ], "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": "111 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "251 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626814 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/251/0642-01" ] }, { "cite": "98 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "246 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627029 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0458-01" ] }, { "cite": "134 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "378" } ], "opinion_index": 1 }, { "cite": "261 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572692 ], "year": 1964, "pin_cites": [ { "page": "218" } ], "opinion_index": 1, "case_paths": [ "/nc/261/0210-01" ] }, { "cite": "150 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "507" } ], "opinion_index": 1 }, { "cite": "268 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562163 ], "year": 1966, "pin_cites": [ { "page": "365" } ], "opinion_index": 1, "case_paths": [ "/nc/268/0363-01" ] } ], "analysis": { "cardinality": 492, "char_count": 8945, "ocr_confidence": 0.763, "pagerank": { "raw": 3.6856254361847664e-07, "percentile": 0.8918371302728461 }, "sha256": "ca0b6a28b5c21e2726b9d8449ba9c4b519d46f651b59fc9901d9f638b72c728e", "simhash": "1:b3d360edd304197c", "word_count": 1510 }, "last_updated": "2023-07-14T17:09:00.422652+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BECTON concurs.", "Judge Greene dissents." ], "parties": [ "JAMES GORDON, t/a G & G UNLIMITED, and G & G UNLIMITED, INC. v. NORTHWEST AUTO AUCTION, INC." ], "opinions": [ { "text": "PHILLIPS, Judge.\nIn February 1985, plaintiff, a Richmond County automobile dealer, for $3,420 bought what was represented to be a 1977 Cadillac automobile at an automobile auction conducted by defendant. He received an executed document on defendant\u2019s printed form entitled \u201cBill of Sale and Title Warranty,\u201d which carried the notation that it was issued at Northwest Auto Auction, and stated \u201cTHIS SALE IS SOLELY A TRANSACTION BETWEEN THE BUYING AND SELLING DEALERS.\u201d Inter alia, the document identified plaintiff as purchaser and Archie\u2019s Auto Sales of Rock Hill, South Carolina as seller, and that:\nThe seller covenants with the purchaser that he is the true and lawful owner of the said described automobile; that the same is free from all encumbrances; that he has good right and full power to sell the same as aforesaid; and that he will warrant and defend the same against the lawful claims and demands of all persons whomsoever. The purchaser agrees that he has examined the above vehicle and accepts it in its present condition.\nWe, Northwest Auto Auction of Charlotte, N. C. guarantee title to the above car to be free and clear of all liens and encumbrance at the time of execution of this instrument. Limit of liability not [to] exceed purchase price of car as shown above, this value to be depreciated 2% per month for a period of four years. \u201cWe MAKE NO WARRANTY TO THE MECHANICAL CONDITION OF SAID CAR.\u201d\nIn the transaction plaintiff paid defendant auction company the sale price of $3,420 plus a $20 buyer\u2019s fee, and received the car and the purported title to it. Several months later, after plaintiff had cleaned up the car and sold it for $3,900, the North Carolina Department of Motor Vehicles discovered that it was a 1976 Cadillac that had been stolen in Atlanta in 1984 and returned it to its true owner; and plaintiff gave its customer another car of equal value.\nIn suing to recover his loss plaintiff alleged that defendant auction company breached its warranty of title to the vehicle; the case was tried without a jury by Judge Huffman, who entered judgment for defendant. In doing so he (1) refused to receive into evidence testimony by several used car dealers to the effect that the foregoing warranty by the auctioneer is understood by auction attending and buying automobile dealers to be a warranty of title; (2) found facts somewhat as stated above; and (3) concluded as a matter of law that:\nDefendant never guaranteed the title to the automobiles sold, but rather only guaranteed that \u2018title to be free and clear of all liens and encumbrance\u2019 and the fact that the automobile in question was, in fact, a stolen automobile, does not constitute a \u2018lien or encumbrance.\u2019 Defendant is not in breach of the only covenant which it made to the Plaintiff.\nElsewhere in what was designated as a finding of fact the court also concluded as a matter of law that:\nThis Warranty by Northwestern (sic) does not guarantee that the Seller is the true and lawful owner of the automobile or that the Seller has the good, right and full power to sell the automobile. This warranty only guarantees that the automobile is free from liens and encumbrances.\nThe mislabeled finding of fact, as the other conclusion of law, is not binding on us. Fairchild Realty Co. v. Spiegel, Inc., 246 N.C. 458, 98 S.E.2d 871 (1957). It is also factually erroneous since defendant\u2019s warranty was not \u201cthat the automobile is free from liens and encumbrances,\u201d or even that the certificate on hand was without encumbrance, but that '\u2019\u2019\u2019title to the car\u201d (emphasis supplied), a different matter altogether, was free and clear; and those words can only be construed to mean a valid title, not a sham, spurious or nonexistent title. Since the execution of the document is admitted and its terms are without ambiguity, their meaning is a question of law for us, Briggs v. American & Efird Mills, Inc., 251 N.C. 642, 111 S.E.2d 841 (1960), and they plainly mean that defendant warranted that the seller of the automobile had title to it. Defendant\u2019s argument that it only warranted that there was no lien on the title if the seller happened to have one is absurd; for there can be no lien on a nonexistent or fictitious title or a need for a warranty against them.\nThough it is true, as defendant maintains, that as auctioneer it acted as agent for a disclosed principal, Archie\u2019s Auto Sales, and ordinarily an agent is not liable on the principal\u2019s warranties, an agent may nevertheless make a personal contract of warranty whenever it sees fit, 3 Am. Jur. 2d Agency Sec. 308 (1986), and the evidence establishes without contradiction that this agent did so. For the obvious and profitable purpose of inducing dealers to buy cars at its automobile auction sales business, defendant regularly delivered an executed warranty form to each buyer, and the consideration that supported the warranty was the $20 fee it collected from each buyer. That the language of the warranty is not as explicit as it might be is immaterial. For \u201c[a]n express warranty may arise by implication. It need not be expressly stated, provided that what is stated reasonably conveys the warranty.\u201d 67A Am. Jur. 2d Sales Sec. 738 (1985). In this instance defendant\u2019s express warranty that \u201ctitle to the above car\u201d (emphasis supplied) was free and clear of all liens and encumbrances necessarily carried with it an express warranty by implication that the seller had a title to which a lien or encumbrance could attach. To construe it otherwise would have the absurd and incongruous effect of making the warranty of some value when the seller\u2019s title was blemished to some extent, but worthless when the seller had no title at all. Thus, the judgment entered for defendant is vacated and the case remanded to the District Court for the determination of plaintiff\u2019s damages and the entry of judgment for him.\nIn view of our holding we need not determine whether the court also erred in refusing to receive the evidence plaintiff offered as to the usages and practices in the trade of auctioning automobiles to automobile dealers.\nVacated and remanded.\nJudge BECTON concurs.\nJudge Greene dissents.", "type": "majority", "author": "PHILLIPS, Judge." }, { "text": "Judge GREENE\ndissenting.\nI disagree with the conclusion of the majority that the defendant auction company \u201cwarranted that the seller of the automobile had title to it.\u201d The warranty executed by the defendant guaranteed only that title to the automobile was \u201cfree and clear of all liens and encumbrances.\u201d It did not guarantee that the seller had that title. The owner of the automobile, the seller, did however in a separate agreement, covenant that he was \u201cthe true and lawful owner\u201d of the automobile.\nI find the language of the warranty to be clear and unambiguous, and this court cannot, as the majority has done, \u201cinsert what the parties elected to omit.\u201d Taylor v. Gibbs, 268 N.C. 363, 365, 150 S.E.2d 506, 507 (1966). The clear language of the contract placed the burden of defective title on the seller, and no one here contends that the defendant was the seller. Furthermore, I find no error in the trial court\u2019s exclusion of plaintiff\u2019s evidence from other automobile dealers as to the meaning in the \u201ctrade\u201d of the disputed contract language. While custom and trade usage maybe good evidence to explain the terms of an ambiguous contract, such evidence is \u201cnever admitted to make a new contract or to add a new element to one previously made.\u201d Lester v. Thompson, 261 N.C. 210, 218, 134 S.E.2d 372, 378 (1964).\nFinding no error in the trial, I would affirm.", "type": "dissent", "author": "Judge GREENE" } ], "attorneys": [ "Sharpe & Buckner, by Richard G. Buckner, for plaintiff appellant.", "Weinstein & Sturges, by W. H. Sturges and L. Holmes Eleazer, Jr., for defendant appellee." ], "corrections": "", "head_matter": "JAMES GORDON, t/a G & G UNLIMITED, and G & G UNLIMITED, INC. v. NORTHWEST AUTO AUCTION, INC.\nNo. 8920DC335\n(Filed 16 January 1990)\nPrincipal and Agent \u00a7 11 (NCI3d); Automobiles and Other Vehicles \u00a7 5.1 (NCI3d)\u2014 sale of stolen vehicle \u2014 warranty of title\u2014 warranty breached\nA warranty by defendant auctioneer that title to a vehicle was free and clear of all liens and encumbrances could only be construed to mean a valid title, not a sham, spurious or nonexistent title; therefore, defendant breached its warranty of title when a vehicle which it sold to plaintiff was subsequently discovered to have been stolen and the North Carolina Department of Motor Vehicles returned it to its true owner. Moreover, though defendant auctioneer acted as agent for a disclosed principal, and ordinarily an agent is not liable on the principal\u2019s warranties, an agent may nevertheless make a personal contract of warranty whenever it sees fit, as the evidence established without contradiction that this agent did.\nAm Jur 2d, Auctions and Auctioneers \u00a7\u00a7 57, 66.\nJudge GREENE dissenting.\nAppeal by plaintiff from Huffman, Judge. Order entered 20 February 1989, nunc pro tunc 13 October 1988, in District Court, RICHMOND County. Heard in the Court of Appeals 6 November 1989.\nSharpe & Buckner, by Richard G. Buckner, for plaintiff appellant.\nWeinstein & Sturges, by W. H. Sturges and L. Holmes Eleazer, Jr., for defendant appellee." }, "file_name": "0088-01", "first_page_order": 116, "last_page_order": 120 }