W. A. Davis Realty, Inc. v. Wakelon Agri-Products, Inc. ( 1987 )

351 S.E.2d 816 (1987) 84 N.C. App. 97

W.A. DAVIS REALTY, INC., d/b/a W.A. Davis Milling Company
v.
WAKELON AGRI-PRODUCTS, INC.

No. 8518SC1093.

Court of Appeals of North Carolina.

January 20, 1987.

Womble, Carlyle, Sandridge & Rice, by Keith W. Vaughan and Robert C. Dortch, Jr., Winston-Salem, for plaintiff appellant.

Henson, Henson & Bayliss, by Perry C. Henson and Paul D. Coates, Greensboro, for defendant appellee.

PHILLIPS, Judge.

Quite clearly, it seems to us, plaintiff's evidence, when viewed in its most favorable light, West v. Slick, 313 N.C. 33, 326 S.E.2d 601 (1985), makes out a prima facie case on all the claims asserted. That the grade or quality of goods bought and sold can be contracted for is rudimentary; and that an agreement as to the grade or quality of goods bought and sold can be the basis for an express warranty is expressly provided by statute. G.S. 25-2-313. The main thrust of plaintiff's evidence is that defendant contracted or expressly warranted to provide Number 2 milling wheat, a commodity with few defective kernels, and breached its obligation by supplying wheat of an inferior standard that contained a high percentage of defective kernels. The same evidence, along with evidence that defendant knew that plaintiff was milling wheat into flour for human consumption and was relying upon defendant to furnish wheat suitable for that purpose, supports the claims that defendant made and breached the implied warranty of merchantability, G.S. 25-2-314, and the implied warranty of fitness for a particular purpose, G.S. 25-2-315. Under the circumstances recorded whether these warranties were made or breached were questions of fact, not law. Pake v. Byrd, 55 N.C.App. 551, 286 S.E.2d 588 (1982). And the evidence that Wakelon stored the wheat involved over the winter, a practice that can cause sick wheat, and did not inspect it prior to shipment is some evidence at least that it failed to use reasonable care in supplying plaintiff with a product free from hidden defects. Wilson v. Lowe's Asheboro Hardware, Inc., 259 N.C. 660, 131 S.E.2d 501 (1963). Nor was plaintiff contributorily negligent as a matter of law because it did not inspect the earlier deliveries received from defendant. The evidence does not indicate that plaintiff knew or should have known of defendant's storage practices until near the end of the month when the customer's complaints were being investigated; nor does it indicate that in the exercise of due care plaintiff was required to inspect for this rare condition before accepting the different shipments delivered. The inspection described by the evidence required more than just looking at the wheat; it involved peeling the bran from the surface area of the germ; and whether such an inspection should have been made is also a question of fact, not law.

Plaintiff's evidence is also sufficient to support but not require a finding that defendant's breaches and negligence proximately caused at least some of the damage that plaintiff's evidence tends to show was sustained. That the evidence does not exclude the possibility that other suppliers also supplied it with sick wheat during the period involved is not fatal to plaintiff's claims as defendant maintains. To have a jury pass on its case plaintiff was not required to show to a scientific certainty that defendant's defective merchandise was the sole cause of the damage claimed; it only had to show that defendant's product probably caused some of the damage sustained. Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979); 9 Strong's Index 3d, Negligence Secs. 9 and 10 (1977). This the plaintiff did by presenting evidence indicating the following: That "sick wheat" caused plaintiff's flour to make defective biscuits to the dissatisfaction of its customers and its own pecuniary loss; that defendant made several different deliveries of "sick wheat" to plaintiff during the period involved; that "sick wheat" is a rare condition, and thus not likely to be found in every supplier's bin or delivery; that defendant stored all the wheat involved in the same bin over the winter, a storage practice that often results in "sick wheat;" that much of defendant's wheat was converted into biscuits within ten days after it was delivered to plaintiff; that about ten days or so after defendant's first delivery of wheat to plaintiff its customers began to complain about plaintiff's flour not making satisfactory biscuits and the complaints continued during the rest of the month; and that during the period from April 3rd through May 1st Wakelon's deliveries amounted to 1,065,200 pounds and those of all the other suppliers amounted to only 387,075 pounds, 200,000 pounds of which were delivered by one supplier, Central Soya, on one day, April 16th—too late to be the cause of the complaints that had already been received and the complaints that were received during the several days that followed.

Vacated and remanded for a new trial.

ARNOLD and EAGLES, JJ., concur.