Helson's Premiums and Gifts, Inc. v. Duncan ( 1970 )

177 S.E.2d 428 (1970) 9 N.C. App. 653

HELSON'S PREMIUMS AND GIFTS, INC.
v.
Jean Phillips DUNCAN, t/a Specialty Brokers Advertising.

No. 7026DC634.

Court of Appeals of North Carolina.

November 18, 1970.

James M. Shannonhouse, Jr., Charlotte, for plaintiff appellee.

Raleigh A. Shoemaker and Hugh L. Lobdell, Charlotte, for defendant appellant.

BRITT, Judge.

Defendant contends first that the trial court committed error in directing a verdict in favor of plaintiff on defendant's counterclaim and in not submitting appropriate issues to the jury. We agree with this contention.

G.S. § 25-2-313, a portion of the Uniform Commercial Code, provides as follows:

"§ 25-2-313. Express warranties by affirmation, promise, description, sample. —(1) Express warranties by the seller are created as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.

(2) It is not necessary to the creation of an express warranty that the seller use formal words such as `warrant' or `guarantee' or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty. (1965, c. 700, s. 1.)"

Considering defendant's evidence in the light most favorable to her, the jury could have found that plaintiff made an express warranty that the RCA Model 21Y radio was identical to 25Y, that the warranty was made before defendant placed her order with plaintiff and constituted a basis for the bargain. Evidence that Union Carbide refused to accept the radios and that the investigation of differences in the two models by defendant's salesman subsequent to Union Carbide's cancellation, if believed, was sufficient to show that the two models were not identical and that 21Y was inferior. As to defendant's damage on loss of sale of the radios, there was direct testimony to the effect that she lost a profit of $1,807.05 as the result of the cancellation order by Union Carbide. The trial court erred in directing a verdict in favor of plaintiff on defendant's counterclaim.

Defendant next contends that the trial court erred in excluding testimony of defendant's witness to the effect that defendant was damaged by reason of not being allowed to bid on other contracts with Union Carbide and consequent damages resulting to defendant. This contention is without merit as the evidence offered by defendant was inadmissible under the hearsay rule and the speculative damages rule. Wilson v. Hartford Accident and Indemnity Co., 272 N.C. 183, 158 S.E. 2d 1 (1967); 3 Strong N.C. Index 2d, Damages, Sec. 8, pp. 174-175.

Finally, defendant contends that the court erred in denying her motion to amend her answer and counterclaim to clearly indicate that her counterclaim was based on breach of contract. This contention is without merit as the trial court has broad discretion in permitting or denying amendments and the denial of the motion did not prejudicially affect defendant's rights. Perfecting Service Co. v. Product Dev. & Sales Co., 264 N.C. 79, 140 S.E.2d 763 (1965); G.S. § 1A-1, Rule 15(b).

For the reasons stated, defendant is entitled to a

New Trial.

CAMPBELL and VAUGHN, JJ., concur.