GRAYBAR ELECTRIC COMPANY v. Shook , 17 N.C. App. 81 ( 1973 )

193 S.E.2d 392 (1972) 17 N.C. App. 81

GRAYBAR ELECTRIC COMPANY
v.
Harold E. SHOOK, trading and doing business as Mid-South Contracting Company.

No. 7228SC720.

Court of Appeals of North Carolina.

December 20, 1972. Certiorari Allowed February 6, 1973.

Bennett, Kelly & Long, P. A., by Robert B. Long, Jr., Asheville, for plaintiff appellant.

Bruce A. Elmore, by George W. Moore, Asheville, for defendant appellee.

Certiorari Allowed by Supreme Court February 6, 1973.

VAUGHN, Judge.

Defendant-buyer was entitled to inspect the goods after their arrival. G.S. § 25-2-513(1). Since part of the goods failed to conform to the contract, the buyer could accept any commercial unit and reject the rest. G.S. § 25-2-601(c). Such rejection must have been made within a reasonable time after delivery and the plaintiff-seller seasonably notified. Defendant was also under a duty after rejection to hold the rejected goods with reasonable care at the seller's disposition for a time sufficient to permit the seller to remove them. Nothing else appearing, the buyer had no further obligation with respect to the rejected goods. G.S. § 25-2-602. The court's findings are in accord with the foregoing and support the judgment dismissing the action.

Plaintiff tendered requests for findings of fact which were substantially rejected by the court. Among other things, plaintiff contends that the court should have found facts showing the existence of an agreement between plaintiff and defendant whereby defendant agreed to ship the goods back to plaintiff. Plaintiff contends that the court should have found that defendant failed to return the goods as he agreed to do, failed to exercise reasonable care for safe-keeping of the goods and is liable for the fair market value of the same. It may well be that there is evidence in the record which would support such findings. The burden, however, was on the plaintiff to satisfy the trier of the facts as to the existence of the agreement and the breach thereof by the defendant. "A jury trial being waived, the findings of fact by the judge are as conclusive as the verdict of a jury, when there is evidence to support them (Matthews v. Frye, 143 N.C. 384, 55 S.E. 787); and in this case it cannot be said that there was no evidence to support the findings, because the burden of proof was on the plaintiff to establish negligence and his honor had the right, which a jury could have exercised, to say that the evidence of the plaintiff did not satisfy him that the defendant was negligent." Eley v. Railroad, 165 N.C. 78, 80 S.E. 1064.

In Mitchell v. Barfield, 232 N.C. 325, 59 S.E.2d 810, the trial judge failed to find facts requested by the appellant. The court, in an opinion written by Justice Ervin, held that assignments of error based on the court's failure to so find were untenable. The court said, "When he passed on the requests for findings, the judge necessarily weighed the evidence in his capacity as trier of the facts, and his refusal was tantamount to an affirmative finding that the matters and things embodied in the requests for findings did not exist."

The weight to be given the evidence and the resolution of reasonable inferences arising thereon are for the trier of the facts. Where, as here, the court's findings are supported by competent evidence, they will not be disturbed on appeal. The material facts so found support the judgment, which we affirm.

Affirmed.

HEDRICK and GRAHAM, JJ., concur.