#### F. T. WIGGINS v. E. G. LANDIS and LANDIS MOTOR COMPANY.

(Filed 1 October, 1924.)

1. Pleadings — Amendments — Courts — Discretion — Vendor and Purchaser — Warranty—Statutes.

Where the plaintiff seeks to recover damages upon the allegation that defendant falsely and knowingly induced him to purchase an automobile upon false representations, it is within the sound discretion of the trial judge to permit an amendment alleging a warranty, in addition to the *317allegations in tlie original complaint; and where the statute of limitations has not run as to the latter, the amendment cannot be construed to have a different result. C. S., 547.

2. Same — Contracts—Warranty—Immaterial Allegations.

Where the original complaint has alleged facts sufficient to constitute a warranty by defendant of an automobile which the latter had sold and delivered to him, the specific allegation of warranty becomes immaterial, and it is within the sound discretion of the trial judge to allow the complaint to be amended so as to allege a warranty. C. S., 537, 547.

3. Same — Election of Remedies.

Where the complaint sufficiently alleges that the plaintiff was Induced to purchase an automobile by the false representation of the owner as to its condition, he may recover upon a warranty without the use of the particular word, and objection that he had been put to an election of remedies cannot be sustained.

Appeal by E. G. Landis from Lyon, J., and a jury, at May Special Term, 1924, of Vaitce.

Eittrell & Eittrell and, Perry & Eittrell for plaintiff.

T. T. Hides & Son for defendant.

ClakKSON, J.

Tbe following issues were submitted to tbe jury, and tbe answers thereto:

1. Did tbe defendant warrant tbe automobile to be a new automobile of 1920 model wben be sold tbe same to tbe plaintiff? Ans. Yes.

2. Was said car a new car of tbe 1920 model? 'Ans. No.

3. Is tbe cause of action barred by tbe statute of limitations? Ans. No.

4. Wbat damages, if any, is tbe plaintiff entitled to recover. Ans. $1,000 without interest.

Tbe defendant’s counsel earnestly contended in tbe argument that tbe action was originally brought for rescission of tbe contract of tbe sale of a Hudson car, made by E. G. Landis to plaintiff, and this was so alleged in tbe complaint, and plaintiff was allowed to amend tbe complaint and allege breach of warranty, and “Defendant insisted that tbe nature of tbe action could not be thus changed from one to rescind a sale and recover tbe price, to one for damages for breach of a warranty that tbe car wben sold was new”; that tbe new cause of action in tbe amended complaint was barred by tbe three-year statute of limitation.

It is necessary to refer to tbe allegations of tbe complaint, which are as follows :

That on 10 December, 1919, tbe defendant, E. G. Landis, sold tbe plaintiff an automobile for tbe sum of $2,450.

To induce tbe plaintiff to purchase said automobile tbe defendant, E. G. Landis, represented to tbe plaintiff that tbe automobile was a brand new Hudson car, 1920 model.

*318Tbat tbe said automobile is not a new automobile as represented, but was a second-band or tbird-band automobile wbicb bad been run many years, and rebuilt and repainted so as to cover tbe defects and deceive tbe purchaser.

Tbat tbe said automobile bas given tbe plaintiff practically no service; bas cost bim more tban $300 in repairs, and tbat be is informed and believes tbat it is a stolen car, and tbat tbe numbers bave been filed off and painted over, to avoid detection.

Tbat as soon as tbe plaintiff found tbat it was a stolen car, be ceased to use ’same, and tendered it back to tbe defendant E. G. Landis, demanding tbe money be bad paid, or a new car as be bad bargained for.

Tbat tbe plaintiff stands ready now to return to tbe defendant tbe car be got, and bas been damaged by tbis transaction in tbe sum of $2,450.

Wherefore, tbe plaintiff prays judgment against tbe defendants in tbe sum of $2,450, and interest on same from 10 Decembér, 1919, and for tbe cost of tbis action, and for such other and further relief as to tbe court seems just and proper.

When tbe cause was called for trial defendant moved tbe court to dismiss tbe same because tbe complaint does not state facts sufficient to constitute a cause of action, in tbat it does not allege a warranty by defendant, or any fraud or deceit, and because plaintiff waited nearly three years after tbe purchase of tbe car before bringing bis action to rescind.

Tbe court below in its sound discretion bas a right to allow amendments.

C. S., 547, is as follows: “Tbe judge or court may, before and after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out tbe name of any party, or a mistake in any other respect; by inserting other allegations material to tbe case; or when tbe amendment does not change substantially tbe claim or defense, by conforming tbe pleading or proceeding to tbe fact proved. When a proceeding taken by a party fails to conform to law in any respect, tbe trial judge may permit an. amendment of tbe proceeding so as to make it conformable thereto.”

Tbe amendment allowed is as follows: “To induce tbe plaintiff to purchase tbe said automobile tbe defendant, E. Gr. Landis, represented and warranted to plaintiff tbat tbe automobile was a new 1920 model Hudson automobile, when in truth and in fact it was not a new car, nor a 1920 model Hudson, but an old second-hand Hudson automobile of about 1916 or 1917 model.”

*319In tbe original complaint tbe plaintiff alleged “Tbat tbe defendant, E. G-. Landis, represented to tbe plaintiff,” and tbe amendment alleges tbat tbe defendant “represented and warranted to tbe plaintiff.”

¥e tbink tbat tbe amendment was not necessary, but was allowable in tbe sound discretion of tbe court below. We tbink tbat tbe allegation “represented” and tbe other facts alleged sufficient, without tbe amendment inserting tbe word “warranted.”

In Foy v. Stephens, 168 N. C., 439, it has been well said by Brown, J.: “We have held that a demurrer will not be sustained to the extent of dismissing the action, unless it entirely fails to state a cause of action. If in any portion of it it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand, however inartificially it may have been drawn, or however uncertain, defective, or redundant may be its statements, for contrary to cómmon-law rule, a very reasonable intendment and presumption must be made in favor of the pleader. It must be fatally defective before it will be rejected as insufficient. Brewer v. Wynne, 154 N. C., 472. This case is affirmed and cited with approval in the recent case of Hoke v. Glenn, 167 N. C., 594. Where it is manifest that the complaint defectively states a good cause of action, and the defect can be cured by amendment, the courts will allow the amendment rather than dismiss the action. This is in the interest of justice and the speedy trial of actions.” Currie v. Malloy, 185 N. C., 209.

After tbe complaint was filed tbe defendant has a right, even after tbe answer was filed, in tbe sound discretion of tbe court below, to request tbat tbe complaint be made definite and certain.

C. S., 537, in part is as follows: “When tbe allegations of a pleading are so indefinite or uncertain tbat tbe precise nature of tbe charge or defense is not apparent, tbe court may require tbe pleading to be made definite and certain by amendment.”

Tbe better practice and procedure is to make tbe request before answer or demurrer. Power Co. v. Elizabeth City, ante, 278.

A liberal construction of tbe complaint and tbe prayer for judgment clearly showed tbat tbe action was for “breach of warranty.” Tbe complaint does allege tbat tbe car was tendered back to tbe defendant. This tbe defendant denied in bis answer. It further alleges tbat tbe plaintiff stands ready now to “return to tbe defendant tbe car be got,” but tbe prayer for judgment does not ask “to rescind tbe trade,” but for damages.

If tbe defendant was uncertain as to tbe precise nature of tbe action, be could have asked tbat tbe complaint be made more “definite and *320certain.” We think the complaint, although not using the word “warranted,” but the word “represented,” and the facts alleged, were sufficient to charge a breach of warranty.

“To constitute a warranty in the sale of goods, it is not necessary that the vendor should use the word 'warrant’ or 'warranty.’ If the language actually used at the time of the sale by a fair construction amounts to, or is equivalent to, an undertaking on the part of the owner that the property is what it is represented to be, it is sufficient to create-a warranty. A description of a printing press, in a bill of sale thereof,, as being 'in good working order, with all parts intact,’ is warranty. Udell v. Sarafian, 43 N. Y. Supp., 1092, 1094, 19 Misc. Rep., 542”; 8 Words and Phrases, 7404.

“To constitute an express warranty the term 'warrant’ need not be-used; no technical set of words are required, and it may be inferred from the affirmation of a fact which induces the purchase and on which the buyer relies and on which the seller intended that he should so do, but it has been said that the words used must be tantamount to a warranty, and not dubious or equivocal.” 24 R. C. L., sec. 437.

In Swift v. Meekins, 179 N. C., 174, it is said: “It is not necessary that the language should be intentionally false, or that there should have been any purpose to deceive. The positive representation by a vendor that the article sold possesses a certain value and certain qualities, amounts to a warranty, and by counterclaim the defendant may set up the breach of the warranty and reduce the sum claimed by the difference between the contract price and-the actual value, although there-was no deceit in the sale. McKinnon v. McIntosh, 98 N. C., 89. This-case is very much on all fours with the one under consideration. In Reiger v. Worth, 130 N. C., 268, it was held that representations that rice is excellent seed rice amounts to a warranty. In that case the Court held also that his Honor correctly instructed the jury as a matter of law that the defendant’s representations amounted to a warranty, and that they should answer that issue 'Yes.' See, also, Love v. Miller, 104 N. C., 582; Lewis v. Rountree, 78 N. C., 323.”

From the view we take of this case we do not think the subject of' “election of remedies” has any application. If it did we think the-reasonable and sensible rule is laid down by Judge Cothran, in McMahan v. McMahan (S. C., 1922), 26 A. L. R., 1299, as follows: “When a certain state of facts under the law entitled a party to alternative remedies, both founded upon the identical state of facts, these remedies are not considered inconsistent remedies, though they may not be able to-'stand together’ the enforcement of the one remedy being a satisfaction of the party’s claim. In such case the invocation of the one remedy is. *321not an election which, will bar the other, unless the suit upon the remedy first invoked shall reach the stage of final adjudication, or, unless, by the invocation of the remedy first sought to be enforced, the plaintiff shall have gained an advantage thereby, or caused detriment or change of situation to the other.”

The learned judge who tried this case below, we think in clear and concise language stated correctly the reasons why the cause should not have been dismissed: “While the complaint may be defective, still it is the policy of the law to determine all matters in the controversy as speedily as possible and on the merits; and whatever defects there may be in the pleadings, they can be cured by amendment. I do not think the evidence tends to show any fraud or deceit, and I do not understand the plaintiff is relying on fraud or deceit. If they did I would hold there was no evidence of that. I understand the plaintiff is now contending there was a warranty; that the car was a new car of the 1920 model, and that there was a breach of that warranty by reason of the fact that it was not a new car of the 1920 model. The motion to dismiss is denied.”

On this theory the case was tried. The questions of fact were left to the jury. From a careful reading of the contentions and charge by the court below, we think the case was fairly and impartially left to the jury. We can find

No error.