Meads v. Davis , 22 N.C. App. 479 ( 1974 )

206 S.E.2d 868 (1974) 22 N.C. App. 479

Harvey Eugene MEADS, t/a Standard Tile Company
v.
Nat DAVIS and wife, Margaret Davis.

No. 741SC424.

Court of Appeals of North Carolina.

July 17, 1974.

Leroy, Shaw, Hornthal & Riley, by Norman W. Shearin, Jr., Kitty Hawk, and Charles C. Shaw, Jr., Elizabeth City, for plaintiff appellee.

Twiford, Abbott & Seawell, by C. Everett Thompson, Elizabeth City, for defendant appellants.

BRITT, Judge.

Defendants assign as error the failure of the trial court to instruct the jury: "If the plaintiff did not have a reasonable belief that the goods would be accepted, he does not have the right to cure his defect." Defendants cite G.S. § 25-2-508, Official Comment No. 2. We believe that defendants' contention as to the law is wrong and that they have misconstrued the comment.

G.S. § 25-2-508(1) provides: "Where any tender or delivery by the seller is rejected because nonconforming and the time for performance has not yet expired, the seller may seasonably notify the buyer of his intention to cure and may then within the contract time make a conforming delivery." It is clear from this section that the seller may at anytime before the expiration of the time for performance make a conforming delivery regardless of a prior nonconforming delivery. Defendants argue that the right would not exist if there was a prior delivery which the seller could not reasonably believe would be accepted. We reject this argument.

The comment, by its introduction, refers to G.S. § 25-2-508(2), which provides: "Where the buyer rejects a nonconforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he seasonably notifies the buyer have a further reasonable time to substitute a conforming tender." Obviously this section deals with the situation in which the seller knows prior to delivery that the goods are not in conformity, but has reason to believe that the buyer will accept. An example of such a situation might be where the buyer orders goods no longer carried by the seller, but the seller has goods which will perform the same function. The section does not apply to the facts shown in the present case.

For the failure of the court to give a requested instruction to be error, the instruction first must be correct. Bass v. Hocutt, 221 N.C. 218, 19 S.E.2d 871 (1942). In this case, the instruction prayed for was not correct, therefore, the assignment is overruled.

The other assignments of error brought forward and argued in defendants' brief relate to the trial court's rulings on the admission and exclusion of certain evidence. Suffice it to say, we have carefully considered the assignments but finding them lacking in merit, they are overruled.

No error.

BROCK, C. J., and BALEY, J., concur.