{ "id": 8525266, "name": "STIMPSON HOSIERY MILLS, INC. v. PAM TRADING CORPORATION and OFFICINE SAVIO MATEC, S.p.A.", "name_abbreviation": "Stimpson Hosiery Mills, Inc. v. PAM Trading Corp.", "decision_date": "1990-06-05", "docket_number": "No. 8922SC561", "first_page": "543", "last_page": "556", "citations": [ { "type": "official", "cite": "98 N.C. App. 543" } ], "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": "197 S.E.2d 505", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "513" } ], "opinion_index": 0 }, { "cite": "283 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559669 ], "year": 1973, "pin_cites": [ { "page": "616" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0604-01" ] }, { "cite": "331 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 119", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526729 ], "year": 1985, "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0119-01" ] }, { "cite": "318 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "351", "parenthetical": "citing Smith" }, { "page": "351", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 701", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526932 ], "year": 1984, "pin_cites": [ { "page": "707", "parenthetical": "citing Smith" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0701-01" ] }, { "cite": "258 S.E.2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "866" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551174 ], "year": 1979, "pin_cites": [ { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0269-01" ] }, { "cite": "253 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "280" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 557", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551787 ], "year": 1979, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0557-01" ] }, { "cite": "366 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "600" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 535", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523518 ], "year": 1988, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0535-01" ] }, { "cite": "286 S.E.2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "101", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "304 N.C. 696", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570528 ], "year": 1982, "pin_cites": [ { "page": "700", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0696-01" ] }, { "cite": "364 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "192" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 513", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358534 ], "year": 1988, "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0513-01" ] }, { "cite": "305 S.E.2d 64", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "65", "parenthetical": "doctrine precludes \"recovery for those consequences of the tort-feasor's act which could have been avoided by acting as a reasonably prudent man . . .\"" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 501", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525554 ], "year": 1983, "pin_cites": [ { "page": "502", "parenthetical": "doctrine precludes \"recovery for those consequences of the tort-feasor's act which could have been avoided by acting as a reasonably prudent man . . .\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0501-01" ] }, { "cite": "160 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1968, "pin_cites": [ { "page": "74", "parenthetical": "emphasis added" }, { "page": "74", "parenthetical": "citations omitted" }, { "page": "74" } ], "opinion_index": 0 }, { "cite": "273 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575009 ], "year": 1968, "pin_cites": [ { "page": "239", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0228-01" ] }, { "cite": "358 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "568" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135863 ], "year": 1987, "pin_cites": [ { "page": "509-10" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0506-01" ] }, { "cite": "224 S.E.2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "661", "parenthetical": "when testimony is first admitted without objection, denial or grant of a subsequent motion to strike the testimony is in the court's sound discretion, which will not be disturbed absent a showing of abuse" } ], "opinion_index": 0 }, { "cite": "29 N.C. App. 512", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556462 ], "year": 1976, "pin_cites": [ { "page": "513", "parenthetical": "when testimony is first admitted without objection, denial or grant of a subsequent motion to strike the testimony is in the court's sound discretion, which will not be disturbed absent a showing of abuse" } ], "opinion_index": 0, "case_paths": [ "/nc-app/29/0512-01" ] }, { "cite": "34 L.Ed.2d 498", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "pin_cites": [ { "parenthetical": "when an opposing party does not object to a question eliciting offending testimony, the witness answers the question, a further question is propounded to the witness and the opposing party then moves to strike testimony relating to the first question, the motion to strike is untimely" } ], "opinion_index": 0 }, { "cite": "409 U.S. 1046", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468673, 6468578, 6468425, 6468331, 6468140, 6468498, 6468915, 6468852, 6467924, 6468025, 6468765 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/409/1046-08", "/us/409/1046-07", "/us/409/1046-05", "/us/409/1046-04", "/us/409/1046-03", "/us/409/1046-06", "/us/409/1046-11", "/us/409/1046-10", "/us/409/1046-01", "/us/409/1046-02", "/us/409/1046-09" ] }, { "cite": "189 S.E.2d 216", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "219" } ], "opinion_index": 0 }, { "cite": "281 N.C. 564", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575634 ], "year": 1972, "pin_cites": [ { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0564-01" ] }, { "cite": "319 S.E.2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "642", "parenthetical": "citing Brandis, at \u00a7 27, naming three exceptional circumstances constituting reversible error without objection: evidence forbidden by statute or public policy, inadmissible confessions in criminal cases, and statutorily prohibited questions from judges or jurors" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521059 ], "year": 1984, "pin_cites": [ { "page": "165", "parenthetical": "citing Brandis, at \u00a7 27, naming three exceptional circumstances constituting reversible error without objection: evidence forbidden by statute or public policy, inadmissible confessions in criminal cases, and statutorily prohibited questions from judges or jurors" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0159-01" ] } ], "analysis": { "cardinality": 1041, "char_count": 28915, "ocr_confidence": 0.733, "pagerank": { "raw": 2.4671598245705274e-07, "percentile": 0.8061095453827617 }, "sha256": "386d65116bc2b5dcae9a931280358c4a48e09b1f8b018809c8721736d619c389", "simhash": "1:570fc546ffed1e7e", "word_count": 4639 }, "last_updated": "2023-07-14T19:26:07.401162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Parker concur." ], "parties": [ "STIMPSON HOSIERY MILLS, INC. v. PAM TRADING CORPORATION and OFFICINE SAVIO MATEC, S.p.A." ], "opinions": [ { "text": "GREENE, Judge.\nPlaintiff Stimpson Hosiery Mills, Inc. (\u201cplaintiff\u201d), appeals a jury\u2019s counterclaim verdict for defendants PAM Trading Corporation and Officine Savio Matee, S.p.A. (\u201cdefendants\u201d). Defendants appeal the jury verdict for plaintiff and denial of defendants\u2019 motions for new trial, judgment notwithstanding the verdict, and remittitur.\nPlaintiff is a corporation that manufactures women\u2019s hosiery. Defendants PAM and Matee are corporations which respectively manufacture and sell a brand of hosiery knitting machine, Veloce. Defendants placed a Veloce knitting machine in plaintiff\u2019s plant in 1985, for plaintiffs trial-use evaluation of the machine\u2019s capabilities. Plaintiff used the machine for approximately six months, after which plaintiff and defendants contracted for plaintiff to purchase 24 Veloce machines for the price of $172,000.00.\nThe machines were installed and operational by March, 1986. Plaintiff claimed that the machines began malfunctioning shortly after their installation, but kept the machines. Plaintiff refurbished its previously-owned knitting machines to produce more hosiery, and on 1 April 1987, plaintiff purchased 10 new knitting machines manufactured by defendants\u2019 competitor.\nPlaintiff filed a complaint against defendants, alleging breach of express warranty and implied warranty of fitness for a particular purpose, along with other bases for relief. Defendants answered, denying the allegations and counterclaiming for the unpaid purchase price plus interest. Plaintiff replied to defendants\u2019 counterclaim, denying defendants\u2019 right to the balance of the purchase price. The case came on for trial and both parties offered evidence.\nAt trial, plaintiff offered the testimony of one of plaintiff\u2019s corporate officers, Mr. Stimpson. Mr. Stimpson testified:\n... I made the statement that if we decided to purchase his machine, I would like for Mr. Arnie McKinney to be the one to set the machine up. . . . [Defendants\u2019 sales representative] told me that I would get that wish to get Mr. McKinney to set up the machines.\nAt the jury instructions charge conference, defendants requested in writing that the trial court submit an issue and instruct the jury on plaintiff\u2019s obligation to mitigate damages, according to the North Carolina Pattern Jury Instructions:\nThis issue reads:\n\u201cWhat amount, if any, of the damages sustained by [plaintiff] could have been avoided?\u201d\nThe burden of proof on this issue is on [defendant] to satisfy you by the greater weight of the evidence that some or all of the damages claimed by [plaintiff] could have been avoided.\nA party injured by a breach of contract is required to protect [itself] from loss if [it] can do so with reasonable exertion or minimal expense. Ordinarily an injured party will not be allowed to recover from the delinquent party any damages which the injured party could have avoided with reasonable effort or minimal expense.\nAnd so I finally instruct you that if you find, by the greater weight of the evidence, that some or all of the damages claimed by [plaintiff] could have been avoided with reasonable exertion or minimal expense on [its] part then you will answer this issue by writing that amount in the blank space provided. On the other hand, if you fail to so find, then you would answer this issue by writing the word \u201cNone\u201d in the blank space provided.\nN.C. Pattern Jury Instruction 571.20 (March 1974). The trial court instead submitted to the jury issue 5, set out below in pertinent part, noting that \u201cI believe what I have included is included in the essence of mitigation of damages required by the plaintiff.\u201d\nThe court submitted six issues to the jury, which answered them as follows:\n1. Did the Defendants expressly warrant to the Plaintiff that the knitting machines were capable of running at 1200 RPM\u2019s and that these knitting machines would be set up and would operate as the trial machine had been set up and operated?\nANSWER: Yes\n2. If so, was the expressed warranty breached by the failure of the knitting machines to conform to the Defendants!\u2019] affirmation of fact or promise about these machines?\nANSWER: Yes\n3. Did the Defendants impliedly warrant to the Plaintiff that the knitting machines were fit for the particular purpose of making different styles and sizes of hose efficiently while running at a speed of at least 1000 RPM\u2019s?\nANSWER: Yes\n4. If so, was the implied warranty of fitness for a particular purpose breached by the Defendants?\nANSWER: Yes\n5. What amount of damages is the Plaintiff entitled to recover?\n(1) For parts, labor and needles to refurbish and operate old machines\n$16,900.00\n(2) For goods returned, credit memos, down-sized goods and goods discarded before shipment\n$1.00\n(3) For new Lonati machines purchased in 1987\no se-\n(4) For lost profits\n$534,988.80 \u25a0\n6. What amount [are] the Defendants entitled to recover?\n$143,672[.]10\nThe court instructed the jury that if it \u201canswered either implied or [express] . . . warranty issues [2 or 4] in favor of the plaintiff . . . go on to the damage issue [5].\u201d The court instructed the jury on issue 5 using this language:\n[T]he burden of proof is ... on the plaintiff to prove to you that [it] has suffered damages by reason of breach of expressed or implied warranty on the part of defendants . . . the plaintiff has the burden of proving to you by the greater weight of the evidence that a breach of warranty was made by the defendants and that this was [a] proximate cause of [its] damages or loss . . . [h]owever, if damages or loss would have occurred whether or not the warranty was breached then these damages do not proximately result from a breach of warranty. If the plaintiff\u2019s own neglect of the machines or failure to maintain or properly operate the knitting machines as a reasonable careful, prudent person in the hosiery industry would do was a proximate cause of the plaintiffs difficulties with the machines, then its damages or loss would not he proximately caused by a breach of warranty. (Emphasis added.)\nThe jury returned its verdict on 1 November 1988, and on 10 November 1988, defendants filed post-verdict Rules 50 and 59 motions for judgment notwithstanding the verdict (j.n.o.v.) or alternately for new trial, or for remittitur of damages as to issues 1-5. On 1 December 1988, the trial court heard the parties on these motions in chambers, out of session, and the parties consented to the court\u2019s ruling on the motions out of session. The court signed an order denying the motions out of session on 27 December 1988. The Iredell County Clerk of Court filed the order and appeal entries on 4 January 1989. Defendants signed and served written notice of appeal as to the jury verdict on issues 1-5 and from the court\u2019s denial of defendants\u2019 motions for directed verdict and for j.n.o.v., new trial, and remittitur, filed on 5 January 1989. Plaintiff gave oral notice of appeal from issue 6 on 27 December 1988, but did not give written notice of appeal. Subsequent to filing of the record on appeal, defendants moved to dismiss plaintiff\u2019s appeal.\nDefendants\u2019 appeal presents these dispositive issues: (I) whether the trial court erred in admitting parol evidence of the contract, which prejudiced defendants on the issue of express warranty; and (II) whether the trial court erred in refusing to instruct the jury on plaintiff\u2019s duty to mitigate damages. These issues arise concerning plaintiff\u2019s appeal: (III) whether plaintiff properly perfected its appeal of defendants\u2019 counterclaim award when it gave oral notice of appeal at the post-verdict motions hearing; (IV) whether the trial court erred in instructing the jury that defendants were entitled to recover the balance of the purchase price if it found that defendants breached a warranty; and (V) whether it properly appealed the trial court\u2019s instructions concerning its own damages.\nDefendants\u2019 Appeal\nI\nExpress Warranty\nDefendants contend that the trial court erred in admitting Mr. Stimpson\u2019s parol testimony of a pre-contract agreement that defendants would provide McKinney as the sole start-up technician for the machines, prejudicially creating an erroneous basis for express warranty. We disagree.\nError may not be predicated upon a ruling which admits . . . evidence unless a substantial right of the party is affected, and ... a timely objection or motion to strike appears of record. . . .\nN.C.G.S. \u00a7 8C-1, Rule 103 (Cum. Supp. 1989) (emphasis added). \u201cAn objection is timely only when made as soon as the potential objector has the opportunity to learn that the evidence is objectionable, unless there is some specific reason for a postponement. Unless prompt objection is made, the opponent will be held to have waived it.\u201d 1 Brandis on North Carolina Evidence \u00a7 27 (Cum. Supp. 1987). \u201c[EJxcept in certain circumstances not applicable here, failure to object to the admission of evidence at the time it is offered waives the objection.\u201d Spencer v. Spencer, 70 N.C. App. 159, 165, 319 S.E.2d 636, 642 (1984) (citing Brandis, at \u00a7 27, naming three exceptional circumstances constituting reversible error without objection: evidence forbidden by statute or public policy, inadmissible confessions in criminal cases, and statutorily prohibited questions from judges or jurors), see also State v. Lewis, 281 N.C. 564, 569, 189 S.E.2d 216, 219, cert. denied, 409 U.S. 1046, 34 L.Ed.2d 498 (1972) (when an opposing party does not object to a question eliciting offending testimony, the witness answers the question, a further question is propounded to the witness and the opposing party then moves to strike testimony relating to the first question, the motion to strike is untimely); Invesco Fin. Serv., Inc. v. C.D. Elks, et al., 29 N.C. App. 512, 513, 224 S.E.2d 660, 661 (1976) (when testimony is first admitted without objection, denial or grant of a subsequent motion to strike the testimony is in the court\u2019s sound discretion, which will not be disturbed absent a showing of abuse).\nWe determine that defendants\u2019 motion to strike Mr. Stimpson\u2019s testimony was untimely, occurring at least one hundred questions and answers after plaintiff adduced the testimony. Defendants neither offer nor argue a \u2018specific reason\u2019 for postponing their objection until well past the time in which the court or plaintiff could have remedied the effect of the alleged error. Therefore, defendants waived objection to the testimony. Furthermore, defendants made no showing that the trial court abused its discretion in denying defendants\u2019 motion to strike.\nII\nDefendants submit that the trial court erred in refusing to instruct the jury on plaintiff\u2019s duty to mitigate damages because the instructions given did not supply the substance of the mitigation instruction to the jury. We agree.\nWhen a judge fails to submit to the jury any issue of fact raised by the pleadings or evidence, to preserve its right to a trial by jury on the omitted instruction a party must demand that the trial court submit the issue before the jury retires. N.C.G.S. \u00a7 1A-1, Rule 49(c) (Cum. Supp. 1989). \u201cWhen a party appropriately tenders a written request for a special instruction which is correct in itself and supported by the evidence, the failure of the trial judge to give the instruction, at least in substance, constitutes reversible error.\u201d Millis Construction Co. v. Fairfield Sapphire Valley, Inc., 86 N.C. App. 506, 509-10, 358 S.E.2d 566, 568 (1987); see N.C.G.S. \u00a7 1A-1, Rule 51(b) (Cum. Supp. 1989).\nThe doctrine of avoidable consequences or the duty to minimize damages requires that \u201can injured plaintiff, whether [its] case be tort or contract, must exercise reasonable care and diligence to avoid or lessen the consequences of the defendants\u2019] wrong.\u201d Miller v. Miller, 273 N.C. 228, 239, 160 S.E.2d 65, 74 (1968) (emphasis added); see also Radford v. Norris, 63 N.C. App. 501, 502, 305 S.E.2d 64, 65 (1983) (doctrine precludes \u201crecovery for those consequences of the tort-feasor\u2019s act which could have been avoided by acting as a reasonably prudent man . . .\u201d). The Uniform Commercial Code (\u201cUCC\u201d) applies to contracts for sale of goods that include warranties. N.C.G.S. \u00a7 25-2-106(2) (Cum. Supp. 1989). The UCC specifically incorporates this doctrine and provides that an aggrieved buyer may recover \u201c[consequential damages resulting from the seller\u2019s breach . . . which could not reasonably be prevented by cover or otherwise . . .\u201d N.C.G.S. \u00a7 25-2-715(2)(a) (Cum. Supp. 1989) (emphasis added).\nFailure to minimize damages does not bar the remedy; it goes only to the amount of damages recoverable . . . [i]t has its source in the same motives of conservation of human and economic resources as the doctrine of contributory negligence, but \u2018comes into play at a later stage.\u2019 . . . [generally they occur \u2014 if at all \u2014 at different times. Contributory negligence occurs either before or at the time of the wrongful act or omission of the defendant.\nMiller, at 239, 160 S.E.2d at 74 (citations omitted). Plaintiff\u2019s \u201cduty to mitigate damages arises only after the negligent act of defendant.\u201d Hagwood v. Odom, 88 N.C. App. 513, 516, 364 S.E.2d 190, 192 (1988), citing Miller, at 239, 160 S.E.2d at 74.\nWe determine that the trial court erred in failing to submit an issue on mitigation and in its instructions to the jury, requiring new trial. Defendants tendered a written request to the trial judge for an issue and instruction on mitigation of damages. The proposed instruction was a correct statement of the applicable law. We also determine that record evidence supported defendants\u2019 request for an instruction on mitigation of damages: approximately one year passed after the new Veloce machines developed problems before plaintiff bought other new machines to increase production, for which plaintiff claimed damages of $100,000.00, plaintiff employed .only one employee to maintain and operate old machines for one of three working shifts each day, plaintiff did not maintain a sufficient spare parts inventory, plaintiff should have increased its routine inspection and maintenance schedule, and plaintiff did not properly exhaust heat and prevent drafts that snarled knitting materials.\nWe next determine that the given instruction did not give the substance of the requested mitigation of damages instruction for two reasons. First, the instruction given by the trial court invited the jury to use an \u2018all or nothing\u2019 analysis regarding plaintiff\u2019s damage: if the jury concluded that defendants breached the warranties and that plaintiff acted unreasonably after receiving the machines, the instruction required the jury to either award plaintiff all of its damages, ignoring plaintiff\u2019s unreasonable behavior, or to award plaintiff nothing because plaintiff acted unreasonably, disregarding defendants\u2019 breach. The given instruction does not instruct the jury that it could assess defendants in breach and also deduct a portion of damages that plaintiff unreasonably incurred, as it is required to do in the requested mitigation-of-damages instruction. Second, the instruction was not a proper statement of the law concerning damages. The doctrine of mitigation affects the consequences of defendants\u2019 breach, but the trial court gave the instruction within the proximate cause portion of the charge and improperly invited the jury to view the damage issue somewhat as a contributory negligence issue. As phrased, plaintiff\u2019s failure to mitigate would bar its remedy, rather than lessen its recovery.\nPlaintiff\u2019s Appeal\nIII\nDefendants move to dismiss plaintiff\u2019s appeal for failure to properly perfect notice of appeal. Defendants contend that plaintiff could not appeal issue 6 of the jury verdict according to Appellate Rule 3 because (A) plaintiff was nonmovant in relation to the post-verdict motions and because issue 6 was not the subject of defendants\u2019 post-verdict motions, and (B) oral notice of appeal could only be taken in \u201copen court,\u201d which does not include judges\u2019 chambers. We disagree.\nA\nIf a judgment or order is rendered in session, \u201c[a]ny party entitled by law to appeal from a judgment . . . may take appeal by . . . giving oral notice of appeal at trial, or at any hearing of a timely motion under Rule 59 ... or under Rule 50 . . .\u201d N.C.R. App. P. 3(a)(1) (1976) (amended 1989) (emphases added). See also N.C.G.S. \u00a7 l-279(a) (1983) (repealed 1989) (containing essentially the same language). Oral notice is proper only for judgments rendered in session. N.C.R. App. P. 3(a)(1).\nA \u2018party entitled by law to appeal\u2019 is any aggrieved party. N.C.G.S. \u00a7 1-271 (Cum. Supp. 1989). \u201cA party aggrieved is one whose rights are substantially affected by judicial order. ... An appeal must also be prosecuted by the aggrieved real party in interest. ... A real party in interest is one who is benefited or injured by the judgment in the case.\u201d Carawan v. Tate, 304 N.C. 696, 700, 286 S.E.2d 99, 101 (1982) (citations omitted).\nA judgment is \u2018rendered\u2019 when it is announced or declared in open court. Provident Finance Co. v. Locklear, 89 N.C. App. 535, 537, 366 S.E.2d 599, 600 (1988), citing N.C.G.S. \u00a7 1A-1, Rule 58 (1987).\nHere, when the jury announced its verdict in open court, it \u2018rendered judgment\u2019 according to Rule 3(a) and N.C.G.S. \u00a7 1A-1, Rule 58, and oral notice of appeal was a proper procedure. As a party against whom the jury rendered the verdict, plaintiff was an \u2018aggrieved party\u2019 who was entitled by law to orally appeal from the judgment. It is plaintiff\u2019s status as an aggrieved party which qualifies it to give oral notice of appeal, and its nonmovant status is irrelevant.\nFurthermore, whether the part of the judgment from which an aggrieved party appeals is the basis for post-verdict motions is irrelevant, so long as an aggrieved party is giving notice of appeal. Appellate Rule 3 was amended to include oral notice at post-verdict motion hearings simply to extend an aggrieved party\u2019s opportunity to give oral notice beyond the traditional trial setting to another setting, post-verdict motion hearings. N.C.R. App. P. 3, Commentary (1982). Subject to the requirement that some part of the judgment grieve the party appealing, this extension of setting for giving oral notice encompasses the entire judgment rendered in session, regardless of whether that same part of the judgment is the subject of the post-verdict motions.\nB\nDefendants next contend that plaintiff could only give oral notice of appeal in \u201copen court\u201d and the post-verdict motions hearing in judge\u2019s chambers are not \u201copen court.\u201d We disagree.\nOral notice of appeal from judgments rendered in session was originally allowed \u201cat trial.\u201d N.C.R. App. P. 3, Commentary. The \u201cbench and bar . . . equated \u2018at trial\u2019 with \u2018in open court\u2019 . . .\u201d Id. Oral notice of appeal was based on the principle that such action gave sufficient notice to the parties. Id. The Drafting Committee recognized this principle in amending Appellate Rule 3 to extend the opportunity to give oral notice of appeal at post-verdict motion hearings: \u201cit seems fair to charge [all parties] with notice, since [the] parties must have been given notice of the hearings themselves. . . .\u201d Id.\nBecause of the assurance that interested parties will receive notice of a party\u2019s intent to appeal, expressed orally at a post-verdict motion hearing, we determine that Appellate Rule 3 contains no explicit or implicit requirement that a post-verdict motion hearing be held in \u2018open court,\u2019 or that appellants give oral notice in \u2018open court,\u2019 for such notice of appeal to have effect.\nIV\nPlaintiff contends that the trial court improperly instructed the jury that defendants could recover the balance of the purchase price if the jury awarded plaintiff actual or general damages for defendants\u2019 breach of express or implied warranty. We disagree.\n\u201cThe buyer must pay at the contract rate for any goods accepted.\u201d N.C.G.S. \u00a7 25-2-607(1) (Cum. Supp. 1989). \u201cWhen the buyer fails to pay the price as it becomes due[J the seller may recover, together with any incidental damages . . . the price ... of goods accepted.\u201d N.C.G.S. \u00a7 25-2-709(l)(a) (Cum. Supp. 1989). A buyer who accepts goods must pay the seller the contract price, but can sue the seller for breach of warranty. Lyon v. Shelter Resources Corp., 40 N.C. App. 557, 561, 253 S.E.2d 277, 280 (1979).\nWe determine that the record shows that plaintiff accepted the Veloce machines and did not reject or revoke acceptance. Therefore, plaintiff was obliged to pay for the machines, although it could and did recover damages for breach of warranty.\nV\nPlaintiff next purports to assign error to jury instructions for its claim of breach of warranty damages.\nA reviewing court is vested with appellate jurisdiction only as to the part of the judgment or order from which appellant appeals. Smith v. Independent Life Ins. Co., 43 N.C. App. 269, 272, 258 S.E.2d 864, 866 (1979). This rule is construed liberally only with regard to written notices of appeal. Brooks, Com\u2019r of Labor v. Gooden, 69 N.C. App. 701, 707, 318 S.E.2d 348, 351 (1984) (citing Smith). Appellant\u2019s assignment of error is not properly before the reviewing court if the assignment relates to a part of the judgment from which appellant has not given notice of appeal. N.C.R. App. P. 3; Chaparral Supply v. Bell, 76 N.C. App. 119, 120, 331 S.E.2d 735, 736 (1985).\nOur review of the record reveals that plaintiffs oral notice of appeal specifically included only the jury\u2019s verdict on defendants\u2019 counterclaim. \u201c[A] counterclaim is in the nature of an independent proceeding and is not automatically determined by a ruling in the principal claim.\u201d Brooks, at 707, 318 S.E.2d at 351 (citation omitted). We determine that plaintiff gave no actual notice from the remaining five jury issues, and we cannot infer notice because of the independent nature of the counterclaim. Therefore, since plaintiff did not give notice of appeal from the five issues relating to its own claim, it cannot subsequently vest this court with jurisdiction by assigning error to those matters. Furthermore, new trial on the issue of plaintiff\u2019s damages renders unnecessary our review of assignments of error relating to the issue.\nA reviewing court may grant a partial new trial in its discretion, \u201c \u2018 \u201cgenerally . . . when the error, or reason for the new trial, is confined to one issue, which is entirely separable from the others and it is perfectly clear that there is no danger of complication.\u201d \u2019 \u201d Brown v. Neal, 283 N.C. 604, 616, 197 S.E.2d 505, 513 (1973).\nHere, we determine that the error is confined to the issue of damages, and we perceive no danger of it complicating other issues. Accordingly, we remand the case only for new trial on the issue of plaintiffs damages, and it is unnecessary that we review defendants\u2019 or plaintiff\u2019s additional assignments of error relating to the issue of plaintiff\u2019s damages. Because the jury verdict correctly determined plaintiff\u2019s recovery based on breach of express warranty, and this determination alone provides plaintiff\u2019s basis for recovery, we do not address defendants\u2019 assignments of error relating to breach of implied warranty.\nIn summary:\nDefendants\u2019 appeal: on liability \u2014 -no error; on damages \u2014new trial.\nPlaintiff\u2019s appeal: no error.\nJudges Johnson and Parker concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Eisele & Ashburn, P.A., by Douglas G. Eisele, for plaintiff-appellant/plaintiff-appellee Stimpson Hosiery Mills, Inc.", "Petree Stockton & Robinson, by Leon E. Porter, Jr. and J. David Mayberry, for defendant-appellants/defendant-appellees PAM Trading Corporation and Officine Savio Matee, S.p.A." ], "corrections": "", "head_matter": "STIMPSON HOSIERY MILLS, INC. v. PAM TRADING CORPORATION and OFFICINE SAVIO MATEC, S.p.A.\nNo. 8922SC561\n(Filed 5 June 1990)\n1. Contracts \u00a7 26.1 (NCI3d| \u2014 parol testimony \u2014 precontract agreement \u2014 motion to strike untimely\nDefendants in a warranty action arising from the sale of hosiery manufacturing equipment waived objection to parol testimony concerning a precontract agreement where their motion to strike the testimony was untimely in that it occurred at least 100 questions and answers after plaintiff adduced the testimony and defendants neither offered nor argued a specific reason for postponing their objection past the time in which the court or plaintiff could have remedied the effect of the error. Furthermore, defendants made no showing that the trial court abused its discretion in denying the motion to strike. N.C.G.S. \u00a7 8C-1, Rule 103.\nAm Jur 2d, Evidence \u00a7 1022.\n2. Damages \u00a7 9 (NCI3d)\u2014 mitigation \u2014 instruction\nThe trial court erred in a warranty action arising from the sale of hosiery equipment by refusing to instruct the jury on plaintiff\u2019s duty to mitigate damages where defendants\u2019 proposed instruction was a correct statement of the applicable law, the record evidence supported the request for instruction on mitigation of damages, and the instruction the court gave did not give the substance of the requested instruction. The court gave the instruction within the proximate cause portion of the charge and invited the jury to use an all or nothing analysis, so that plaintiff\u2019s failure to mitigate would bar its remedy rather than lessen its recovery.\nAm Jur 2d, Damages \u00a7\u00a7 495, 496.\n3. Appeal and Error \u00a7 203 (NCI4th) \u2014 oral notice of appeal \u2014 post-verdict motions \u2014 judge\u2019s chambers\nPlaintiff properly perfected notice of appeal in a breach of warranty action arising from the sale of hosiery manufacturing equipment where the jury found for the plaintiff on breach of warranty issues but for defendants for the unpaid purchase price; defendants filed post-verdict motions for judgment notwithstanding the verdict, for a new trial, or for remittitur of damages; the trial court heard the parties on those motions by consent in chambers and out of session on 1 December 1988; the court signed an order denying the motions on 27 December 1988 and plaintiff gave oral notice of appeal on the issue of the unpaid purchase price on 27 December 1988. Appellate Rule 3 was amended to include oral notice at post-verdict motion hearings to extend an aggrieved party\u2019s opportunity to give oral notice beyond the traditional trial setting; subject to the requirement that some part of the judgment aggrieve the party appealing, this extension of setting for giving oral notice encompasses the entire judgment rendered in session regardless of whether that same part of the judgment is the subject of the post-verdict motions.\nAm Jur 2d, Appeal and Error \u00a7 319.\n4. Appeal and Error \u00a7 203 (NCI4th| \u2014 notice of appeal \u2014 open court\nPlaintiff properly gave oral notice of appeal during a post-verdict motions hearing in judge\u2019s chambers. Because of the assurance that interested parties will receive notice of a party\u2019s intent to appeal expressed orally at a post-verdict motion hearing, Appellate Rule 3 contains no explicit or implicit requirement that a post-verdict hearing be held in open court or that appellants give oral notice in open court for such notice of appeal to have effect.\nAm Jur 2d, Appeal and Error \u00a7 319.\n5. Sales \u00a7 13.1 (NCI3d)\u2014 breach of warranty action \u2014 counterclaim for purchase price \u2014instruction on recovery of purchase price \u2014 no error\nThe trial court did not err in a warranty action arising from the sale of hosiery manufacturing equipment by instructing the jury that defendants could recover the balance of the purchase price if the jury awarded plaintiff actual or general damages for breach of express or implied warranty. The record shows that plaintiff accepted the machines and did not reject or revoke acceptance; plaintiff was therefore obliged to pay for the machines although it could and did recover damages for breach of warranty. N.C.G.S. \u00a7\u00a7 25-2-607(1), 25-2-709(l)(a).\nAm Jur 2d, Sales \u00a7\u00a7 661, 663.\n6. Appeal and Error \u00a7 203 (NCI4th)\u2014 notice of appeal \u2014 issues appealed from \u2014 no appellate jurisdiction\nAn assignment of error was not properly before the appellate court where plaintiffs oral notice of appeal specifically included only the jury\u2019s verdict on defendants\u2019 counterclaim; a counterclaim is an independent proceeding not automatically determined by a ruling in the principal claim; plaintiff gave no actual notice from the five remaining jury issues; and the court could not infer notice because of the independent nature of the counterclaim.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 319, 658.\n7. Appeal and Error \u00a7 520 (NCI4th)\u2014 error in damages \u2014 partial new trial\nA breach of warranty action arising from the sale of hosiery manufacturing equipment was remanded for a partial new trial on the issue of plaintiff\u2019s damages where the error was confined to the issue of damages and there was no danger of it complicating other issues.\nAm Jur 2d, Appeal and Error \u00a7 953.\nAPPEAL by plaintiff and defendants from judgment entered 27 December 1988 by Judge Ralph A. Walker, Jr. in IREDELL County Superior Court. Heard in the Court of Appeals 22 November 1989.\nEisele & Ashburn, P.A., by Douglas G. Eisele, for plaintiff-appellant/plaintiff-appellee Stimpson Hosiery Mills, Inc.\nPetree Stockton & Robinson, by Leon E. Porter, Jr. and J. David Mayberry, for defendant-appellants/defendant-appellees PAM Trading Corporation and Officine Savio Matee, S.p.A." }, "file_name": "0543-01", "first_page_order": 571, "last_page_order": 584 }