{ "id": 8574994, "name": "DANIEL W. FULCHER v. NORWOOD NELSON", "name_abbreviation": "Fulcher v. Nelson", "decision_date": "1968-03-06", "docket_number": "", "first_page": "221", "last_page": "228", "citations": [ { "type": "official", "cite": "273 N.C. 221" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "74 S.E. 2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "643" } ], "opinion_index": 0 }, { "cite": "237 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607045 ], "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/nc/237/0159-01" ] }, { "cite": "48 N.D. 499", "category": "reporters:state", "reporter": "N.D.", "case_ids": [ 4474027 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nd/48/0499-01" ] }, { "cite": "83 S.E. 2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "814" } ], "opinion_index": 0 }, { "cite": "240 N.C. 696", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609692 ], "pin_cites": [ { "page": "700-701" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0696-01" ] } ], "analysis": { "cardinality": 682, "char_count": 17370, "ocr_confidence": 0.592, "pagerank": { "raw": 3.549620279411507e-07, "percentile": 0.885256051607642 }, "sha256": "47da994470ff888ae6136247ab6280c62825e331dd59edffede76f7f9c0cbab6", "simhash": "1:a017cdbbd44bb7bd", "word_count": 2852 }, "last_updated": "2023-07-14T20:52:42.272754+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Higgins, J., joins in dissenting opinion." ], "parties": [ "DANIEL W. FULCHER v. NORWOOD NELSON." ], "opinions": [ { "text": "Robert J.\nThe grayamen of-plaintiff\u2019s action,,is; the alleged breach .by defendant^.of; his contractual obligation \u25a0 to \u201ctrade back\u201d if plaintiff, was \u201cnot happy,-with car.\u201d Although seeking to.-rescind, plaintiff does .-not b\u00e1se his alleged right to. do so on fraud or breach of warranty. He bases it solely on the ground the contract gave bim the right to \u201ctrade back,\u201d that is, to . rescind.\nWhether the court erred in overruling defendant\u2019s motion for non-suit depends upon the validity of the special' contract provision. Interpretation thereof is prerequisite to a determination of its validity.\n' \u201cPersons sui juris have a right to make any contract not contrary to law or public policy.\u201d 2 Strong, North Carolina \"Index 2d, Contracts \u00a7 1. Whether defendant acted wisely or foolishly when he agreed to \u201ctrade back\u201d if plaintiff was \u201cnot happy\u201d with the Cadillac is not material. Roberson v. Williams, 240 N.C. 696, 700-701, 83 S.E. 2d 811, 814.\nThe \u00a1trial judge interpreted the words, \u201cif not happy with car,\u201d as used in the special provision of the contract of January 10, 1966, to mean if not satisfied with the Cadillac. We agree. In this connection, satisfaction is a synonym for happiness. 19 Words and Phrases, p. 59; Black\u2019s Law Dictionary, Fourth Edition, p. 846.\n\u201cIt has been questioned whether an agreement in which the promise of one party is conditional on his own or the other party\u2019s satisfaction contains the elements of a contract- \u2014 whether the agreement is not illusory in character because conditioned upon the whim or caprice of the party to be satisfied. Since, however, such a promise is generally considered as requiring a performance which shall be satisfactory to him in the exercise of an honest judgment, such contracts have been almost universally upheld.\u201d 5 Williston on Contracts, \u00a7 675A, pp. 189-190.\n\u201cWhere, from the language of a contract, it is doubtful whether the parties intended that one party should have the unqualified option to terminate it in case of dissatisfaction or whether the intention was to give the right to terminate only in the event of dissatisfaction based upon some reasonable ground, the contract will be construed as not reposing in one of the parties the arbitrary or unqualified option to terminate it.\u201d 17 Am. Jur. 2d, Contracts \u00a7 496. This rule is applicable where the satisfaction or dissatisfaction of the purchaser relates to mechanical fitness. 5 Williston, op cit., \u00a7 675B; Simpson on Contracts, Second Edition, \u00a7 149, p. 309; 1 Restatement, Contracts \u00a7 265, p. 380; Olson v. Larson, 48 N.D. 499, 184 N.W. 984.\nPlaintiff\u2019s dissatisfaction with the Cadillac, as distinguished from general dissatisfaction with the terms of the trade, is the ground on which he asserts a contractual right to \u201ctrade back.\u201d We are of opinion, and so hold, the contract conferred this right to \u201ctrade back\u201d if plaintiff\u2019s election was made in good faith on account of his dissatisfaction with the condition in which he found the Cadillac. The instructions of the trial judge were in substantial accord with this interpretation of the special contract provision.\nPlaintiff\u2019s testimony tends to show that, on January 10, 1966, shortly after he obtained possession of the Cadillac, he discovered the muffler and other portions of the car were badly rusted, that the bottom of the car had been newly sprayed with an undercoating; and that he notified defendant that very day that he was \u201cunhappy with that car,\u201d referring to the Cadillac. (Our italics.) Defendant objected to the admission of plaintiff\u2019s testimony as to the physical condition of the Cadillac, contending defendant made no representations or warranties as to its condition. However, this evidence was competent as bearing upon whether plaintiff\u2019s election to \u201ctrade back\u201d was made in good faith on account of the condition in which he found the Cadillac.\nPlaintiff\u2019s testimony tends to show defendant, when advised that plaintiff was dissatisfied with the Cadillac, told plaintiff he had sold the 1961 Ford he had received as a trade-in from plaintiff, that defendant promised to bring to plaintiff another car in place of the 1961 Ford for use in making the \u201ctrade back\u201d; and that, notwithstanding plaintiff\u2019s repeated demands that defendant \u201ctrade back\u201d and defendant\u2019s repeated promises to do so, defendant failed to bring to plaintiff such other car or otherwise comply with his obligation to \u201ctrade back.\u201d\nDefendant contends his motion for judgment of nonsuit should have been granted because it appears from plaintiff\u2019s evidence (1) that plaintiff did not deliver to defendant the title certificate for the 1961 Ford, and (2) that plaintiff disposed of the Cadillac in June, 1966, and could not thereafter return it to defendant. These contentions are untenable.\nPlaintiff testified defendant did not call upon him for the title certificate for the 1961 Ford; and that, on January 10, 1966, defendant told plaintiff he had already sold the 1961 Ford and it was not available for return to plaintiff.\nWith reference to plaintiff\u2019s disposition of the Cadillac in June, 1966, plaintiff testified he did not dispose of the Cadillac until defendant had failed, notwithstanding plaintiff\u2019s repeated demands to \u201ctrade back,\u201d that is, return the money and car (or equivalent) he had received in exchange for the Cadillac. Under these circumstances, it would be of no benefit to defendant for plaintiff to store the Cadillac or, if subject to a lien, to permit the repossession and sale thereof by the holder of such lien. As indicated below, the reasonable market value of the Cadillac on January 10, 1966 (not the allowance therefor as a trade-in or its reasonable market value in June, 1966) is the significant factor in determining the amount of damages, if any, plaintiff is entitled to recover.\nThe evidence in the record before us, when considered in the light most favorable to plaintiff, was sufficient to permit a jury to find that defendant, on January 10, 1966, breached his contractual obligation to \u201ctrade back.\u201d The motion for nonsuit\u2019was properly overruled.\nWe emphasize the words, \u201cin the record before us,\u201d because the evidence\u2019 is silent as to~matters that may be material in respect of nonsuit and are material in respect of the measure of damages.\nThere is no reference in the complaint or in the evidence as to how the balance of $1,500.00 (of the contract price of $2,475.00) was to be paid or as to whether it was paid. Defendant, in his further answer and defense, alleged plaintiff \u201cfinanced the balance of One Thousand Five Hundred ($1,500.00) Dollars.\u201d If financed, as defendant alleged, when, by whom and under what circumstances was it financed? What amount, if any, did defendant receive as a result of such financing?\nThe trial judge properly instructed the jury to disregard the evidence bearing upon the cost of repairs made during the period between January 10, 1966, and June, 1966, when plaintiff had possession of and was using the Cadillac.\nWith reference to damages, the court instructed the jury in substance, in accordance with plaintiff\u2019s allegation and contention, that plaintiff, if entitled to recover, was entitled to recover the difference between the reasonable market value of this particular Cadillac on January 10, 1966, and the contract price of $2,475.00. Plaintiff alleged this difference was $1,300.00. (It is noteworthy that the contract price of $2,475.00 as of January 10, 1966, less the trade-in allowance of $1,175.00 in June, 1966, is $1,300.00.) The instruction as to the measure of damages was erroneous.\n\u201c(T)he general rule is that a party who is injured by breach of contract is entitled to compensation for the injury sustained and is entitled to be placed, as near as this can be done in money, in the same position he would have occupied if the contract had been performed.\u201d Perkins v. Langdon, 237 N.C. 159, 169, 74 S.E. 2d 634, 643; 2 Strong, North Carolina Index 2d, Contracts \u00a7 29. Where, as here, the action is to recover damages on account of defendant\u2019s breach of his contractual obligation to \u201ctrade back,\u201d that is, to rescind, plaintiff is entitled to be placed, as near as this can be done in money, in the same position he would have occupied if defendant\u2019s \u201ctrade back\u201d obligation had been performed.\nUnder plaintiff\u2019s allegations and evidence, the breach by defendant of his contractual obligation to \u201ctrade back\u201d occurred January 10, 1966. Compliance with this obligation by defendant required that he refund to plaintiff the $75.00, return to plaintiff the 1961 Ford, and return to plaintiff such additional sum, if any, as defendant may have received from plaintiff, in exchange for the Cadillac. In the event of a \u201ctrade back,\u201d the contract price is not material. A \u201ctrade back\u201d or rescission contemplates that each party be restored as near as possible to his original status. 17 Am. Jur. 2d, Contracts \u00a7 512. Thus, if plaintiff is entitled to recover, the measure of damages would be as follows: (1) Determine what defendant received, to wit, the cash he received plus the reasonable market value of the 1961 Ford as of January 10, 1966. (2) Determine what plaintiff received, to wit, the reasonable market value of the Cadillac as of January 10, 1966. (3) If what defendant received exceeds what plaintiff received, plaintiff is entitled to recover the amount of such difference. Plaintiff\u2019s recovery, if his damages were so determined, would carry out defendant\u2019s express agreement that plaintiff should suffer no loss.\nDefendant duly excepted to the court\u2019s instructions relating to the measure of damages. Error therein, in the respect noted, entitles defendant to a new trial. On account of the incompleteness of the evidence in respect of material matters, the new trial will be de novo as to all issues arising on the pleadings.\nNew trial.", "type": "majority", "author": "Robert J." }, { "text": "Lake, J.,\ndissenting: I dissent on the ground that the defendant\u2019s motion for judgment as of nonsuit should have been granted.\nThe alleged contract to \u201ctrade back with the plaintiff at any time within one (1) year\u201d is so vague as to be meaningless and unenforceable. On what terms were the parties to \u201ctrade back\u201d? Was it anticipated that the defendant, a dealer in automobiles, would retain the Ford for a year while waiting for the plaintiff to make up his mind whether he wanted to keep the Cadillac? Was it anticipated that the plaintiff might use the Cadillac for any time from a few minutes up to just short of twelve months and then return it to the defendant and get back the Ford plus the full amount paid by him to the defendant? If not, on what terms were the parties to \u201ctrade back\u201d? The cause of action cannot be founded upon an alleged contract in which the defendant\u2019s undertaking is so uncertain that the court cannot possibly determine what would constitute full performance of it.\nFurthermore, if a contract be construed as an undertaking by the defendant to restore to the plaintiff everything the plaintiff Had turned over to the defendant upon the plaintiff\u2019s returning to the defendant the Cadillac, the plaintiff\u2019s evidence fails completely to show any damage sustained by the plaintiff as a result of the failure of the defendant to perform this undertaking. The record contains nothing whatever to show that the Cadillac was not worth more than the Ford plus all sums paid by the plaintiff to the defendant.\nThe plaintiff has not sued on the theory of breach of warranty or on the theory of fraud. His evidence does not establish a right of action against the defendant, assuming that one is alleged in the complaint, and the motion for nonsuit should have been allowed. Such judgment would not bar the plaintiff from instituting another suit for breach of warranty or for fraud and deceit, if he be so advised.\nHiggins, J., joins in dissenting opinion.", "type": "dissent", "author": "Lake, J.," } ], "attorneys": [ "i\u00fco-Nelson W. Taylor for [plaintiff appellee.-:-,", "ruj ]Y7ieaily cfc Bennett for-defendant appellant.." ], "corrections": "", "head_matter": "DANIEL W. FULCHER v. NORWOOD NELSON.\n(Filed 6 March, 1968.)\n1. Contracts \u00a7 1\u2014\nPersons sui generis have a right to make any contract not contrary to . law or public policy, and the court will not inquire into whether the parties acted wisely or foolishly.\n2. Contracts \u00a7 18; Automobiles \u00a7 6\u2014\nA provision in a contract- for the sale of an automobile which allows one party to rescind within a year if \u201cnot happy with car\u201d is properly construed to mean if not satisfied with the car.\n3. Contracts \u00a7 18\u2014\nAn agreement in which the promise of one party is conditional upon the satisfaction of the promisee is generally enforceable, since such promise is generally considered as requiring a performance which shall be satisfactory to the promisee in the exercise,:.of an honest judgment.\n4. Same\u2014\nWhere the language of a contract is uncertain as to whether one party in case of dissatisfaction shall have an unqualified option to terminate the contract or whether such right of termination is to be based upon some reasonable ground, the contract will be construed as not reposing in the party, the arbitrary or unqualified option to terminate it.\n5. Same; Automobiles \u00a7 6\u2014\nA provision in a contract allowing the purchaser of an automobile to \u201ctrade back\u201d with the dealer if unhappy with the automobile will be construed to confer this right if plaintiff\u2019s election was made in good faith \u2022upon his dissatisfaction with the car.\n6. Contracts \u00a7 26\u2014\nIn the purchaser\u2019s action to rescind a contract of automobile sale under a provision allowing him to \u201ctrade back\u201d if he is dissatisfied with the' ear, plaintiffs testimony as to the physical condition -of the automobile immediately after acquiring possession thereof is competent upon the question of plaintiffs good faith in electing to exercise his right of rescission.\n7. Contracts \u00a7 37; Automobiles \u00a7 6; Sales \u00a7 13\u2014\nEvidence in this case is held sufficient to permit a jury finding that defendant automobile dealer breached a. contractual obligation to \u201ctrade back\u201d the automobile of a purchaser upon the latter\u2019s dissatisfaction with a car purchased from the dealer.\nS. Contracts \u00a7 39\u2014\nIn an action for damages resulting from an automobile dealer\u2019s breach of a contractual obligation to \u201ctrade back\u201d at any time within a year if plaintiff '\u2022 is dissatisfied with the automobile purchased from the dealer, plaintiff is entitled to be placed, as near as this can be done in money, in the same position he would have occupied if the dealer\u2019s \u201ctrade back\u201d obligation had been performed.\nLake, J., dissenting.\nHiggins, J., joins in-dissenting opinion.\nAppeal by defendant from Hobgood, J., August 1967 Civil Session-of CARTERET.\n.Plaintiff instituted this action to recover damages for alleged breach of contract.\nAdmitted allegations establish that defendant on January 10, 1966, sold to plaintiff a-1961 Cadillac for $2,475.00; and that plaintiff paid $75.00 cash\u2019and traded in a 1961 Ford for which he was allowed $900.00.\nPlaintiff alleged it was \u201cagreed that if the plaintiff was not satisfied With the car, he',' the defendant, would trade back with the plaintiff at any time within one (1) year\u201d; that, shortly after taking possession thereof, he discovered the Cadillac was in \u201cvery bad 'condition\u201d; that he demanded that defendant take the Cadillac back and return to plaintiff his 1961 Ford and the $75.00-down payment; that defendant, shortly after selling the Cadillac to plaintiff, sold the Ford he had received from plaintiff; that, notwithstanding plaintiff\u2019s repeated demands, defendant failed to trade back with plaintiff as he had agreed to do; that in June, 1966, after he had paid $51.21 for repairs to the \u201cCadillac in an attempt to keep it running and to protect-th\u00e9 defendant\u2019s interest therein,\u201d plaintiff disposed of the Cadillac in a\u2019'trade in which he was allowed $1,175.00 for it; and that plaintiff was entitled to recover, by reason of defendant\u2019s said breach of contract, the .sum of, $1,351.21, consisting of $1,300.00, to wit, th\u00e9 diff \u00bffence between what-the Cadillac, was reasonably worth, and the contract price at the time of the trade, plus the $51.21 plaintiff had expended for repairs.\nAnswering, defendant denied the allegations of plaintiff set forth in the preceding paragraph; and, by way of further answer and defense, alleged plaintiff had breached the contract (1) by refusing to deliver to defendant the title certificate- to the 1961 Ford, and (2) by selling the Cadillac to a third party. \u25a0\nThe only evidence was that offered by plaintiff, which consisted of plaintiff\u2019s testimony and exhibits.\nThe contract of January 10, 1966, is signed by plaintiff and defendant. Across the face thereof, immediately above defendant\u2019s' (additional) signature, -these handwritten words appear: \u201cWill trade back with Daniel in 12 months if not happy with car. No lost (sic) to him.\u201d - . -\n\u2022 -The issues submitted by'the court, and the jury\u2019s answers thereto, are as follows: \u201c1. \u2022 Did the'.defendant fail to perform his contract with the plaintiff? Answer: Yes. ..2.. Did the plaintiff breach the contract? Answer-: .No.; .3:-'.What\u2019 'amount- is the plaintiff entitled tdlireeoyer from the-defendant.? Answer: $250.00 plus the cost of cpilrt.\u201d . \u25a0 \"\u2022\n'\u25a0\u25a0\u25a0' \u25a0 Ih- \u00a1accordance with said verdict, the court entered judgment that plaintiff have and recover o.f defendant the sum of $250.00 and. that defendant be taxed with the costs. Defendant;excepted and appealed.\ni\u00fco-Nelson W. Taylor for [plaintiff appellee.-:-,\nruj ]Y7ieaily cfc Bennett for-defendant appellant.." }, "file_name": "0221-01", "first_page_order": 257, "last_page_order": 264 }