Styron v. Loman-Garrett Supply Company

171 S.E.2d 41 (1969) 6 N.C. App. 675

Ralph G. STYRON and Roma Styron, t/a Styron Plumbing, Heating & Air Conditioning Company
v.
LOMAN-GARRETT SUPPLY COMPANY.

No. 693SC528.

Court of Appeals of North Carolina.

December 17, 1969. Certiorari Denied February 3, 1970.

Hoyle, Boone, Dees & Johnson, by J. Sam Johnson, Jr., Greensboro, for defendant appellant.

Harvey Hamilton, Jr., Morehead City, for plaintiffs appellee.

CAMPBELL, Judge.

Defendant has a number of assignments of error to the admisson of evidence over its objections and exceptions, and to the judge's findings of fact. All of these assignments of error are overruled.

"When the parties waived a jury trial, [Judge Cowper] occupied a dual position: he was the judge required to lay down correctly the guiding principles of law, and he was also the tribunal compelled to find the facts. In such a trial the rules of evidence as to the admission and exclusion of evidence are not so strictly enforced as in a jury trial. If there was incompetent evidence admitted, it will be presumed it was disregarded by the judge in making his decision, unless it affirmatively appears that the action of the judge was influenced thereby." Mayberry v. Home Insurance Co., 264 N.C. 658, 142 S.E.2d 626 (1965). Bizzell v. Bizzell, 247 N.C. 590, 101 S.E.2d 668 (1957).

The trial court found that "[d]efendant orally warranted and assured plaintiffs that defendant would be totally responsible for the design, plans, engineering, installation and performance of the system." The trial court further found that plaintiffs purchased the system for a particular purpose known to the defendant and "relied on the skill, judgment and experience of the seller for the suitability of the equipment for that purpose."

In Potter v. National Supply Co., 230 N.C. 1, 51 S.E.2d 908 (1949), Ervin, J., set out the law of North Carolina as follows:

"The Uniform Sales Act provides that ``any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon.' Williston on Sales (Revised Edition), section 194. Our legislature has not incorporated the Uniform Sales Act in our statutory law, but the accuracy of the lucid and succinct definition of an express warranty embodied in the Act is fully supported by repeated decisions of this Court. Walston v. R. B. Whitley & Co., 226 N.C. 537, 39 S.E.2d 375; Simpson v. American Oil Co., 217 N.C. 542, 8 S.E.2d 813; Dallas v. Wagner, 204 N.C. 517, 168 S.E. 833; Swift v. Meekins, 179 N.C. 173, 102 S.E. 138; Tomlinson v. Morgan, 166 N.C. 557, 82 S.E. 953; Hodges v. Smith, 159 N.C. 525; 75 S.E. 726; Wrenn v. Morgan, 148 N.C. 101, 61 S.E. 641; Reiger v. Worth, 130 N.C. 268, 41 S.E. 377, 89 Am. St. Rep. 865; Foggart v. Blackweller, 26 N.C. 238; Thompson v. Tate, 5 N.C. 97, 3 Am.D. 678."

North Carolina has now adopted the Uniform Commercial Code and that law as set out in G.S. § 25-2-315 would apparently cover this situation but that Act did not become effective in North Carolina until midnight, 30 June 1967, which was after the contract which is the subject of this litigation.

The defendant contends that the plea of the three-year statute of limitations should have been held as a complete bar to this action as a matter of law. The defendant in support of this position claims that the breach of warranty accrued in May 1964 when the equipment was first tested. This position would be sound except for the fact that thereafter the defendant continued to cooperate with and work with the plaintiffs in an effort to make the equipment comply with the assurances the defendant had given as to the performance of the system. By furnishing new parts for defective parts, furnishing additional pumps and larger chillers, the defendant finally succeeded in procuring satisfactory performance from the equipment. This was not accomplished until May 1966, however. This action was commenced 22 August 1967 which was well within the three-year statute of limitations. We think Heath v. Moncrieff Furnace Co., 200 N.C. 377, 156 S.E. 920, 75 A.L.R. 1082 (1931) and Nowell v. Great Atlantic & Pacific Tea Co., 250 N.C. 575, 108 S.E.2d 889 (1959) are authoritative cases to sustain the conclusion of the trial court to the effect that the plaintiff's cause of action was not barred by the statute of limitations.

The defendant in this case also relies upon G.S. § 1-26 which provides:

"New promise must be in writing.— No acknowledgment or promise is evidence of a new or continuing contract, from which the statutes of limitations run, unless it is contained in some writing signed by the party to be charged thereby; but this section does not alter the effect of any payment of principal or interest."

This statute is not applicable in the instant case as the plaintiffs here are seeking to recover damages incurred because of the failure of the equipment to conform with the original warranty. The expenditures for which the plaintiffs seek to recover in this action were incurred because the equipment did not operate in the manner defendant had warranted it would. The expenses incurred were incident to an effort by the plaintiffs to make the equipment conform with the original representations of the defendant. No new promises were necessary.

In Heath v. Moncrieff Furnace Co., supra, the plaintiff purchased a combined heating and ventilating plant for an apartment house. The system was guaranteed to heat the building. After certain adjustments had been made, the installation was accepted and final payment made on 12 January 1925. Subsequently, plaintiff claimed the system was defective and action was instituted on 23 March 1929 for breach of the warranty. Defendant relied on the three-year statute of limitations. The question presented was, when did the cause of action accrue? The North Carolina Supreme Court held that ordinarily where there is a warranty that the subject matter of a sale is sound at the date of sale then the statute of limitations begins to run at the date of the warranty and not thereafter.

"Where, however, the warranty has been construed as a contract by the vendor that if the vendee shall suffer damages resulting from a prospective as well as a present condition, it has been held that a different rule applies. In some cases, as in Sheehy Co. v. Eastern Imp. & Mfg. Co., 44 App.D.C. 107, L.R.A.1916F, 810, it has been held that the statute of limitations runs from the date on which the vendee discovered or should have discovered the breach of the warranty; in other cases, as in Felt v. Reynolds Fruit Evap. Co., 52 Mich. 602, 18 N.W. 378, it has been held that the statute begins to run only after the lapse of a reasonable time within which both the vendor and the vendee had an opportunity to discover, by tests, whether or not there has been a breach of the warranty. In the latter case, it was said by Cooley, C. J., that where the vendor and the vendee, as contemplated by them when the contract was entered into, were engaged for some time after the date of the warranty in making tests to determine whether or not there had been a breach of the warranty, this time was a criterion as to the time required for that purpose.

In the instant case, all the evidence tends to show that the defendant within three years from the date on which the action was commenced, in response to repeated complaints from the plaintiff, was engaged from time to time in testing the heating plant installed by the defendant, and in efforts to make the plant perform in accordance with the warranty. During this time plaintiff was patiently relying upon the repeated assurance of defendant that it would make the plant comply with its warranty. Upon all the facts of this case, the cause of action did not accrue at the date of the warranty, but at the date on which it was finally determined that the plant was not free from all defects and flaws and would not heat the building to a temperature of 70 degrees, Fahrenheit with an external temperature of 10 degrees below zero. There was evidence tending to show that this date was within three years of the date on which the action was commenced. Hence, there was no error in the refusal of the court to allow defendant's motion for judgment as of nonsuit, or in its refusal to instruct the jury as prayed by defendant. * * *"

We think this is the applicable rule in this case as defendant was endeavoring to get the system to operate.

We find that there was sufficient competent evidence to support the findings of fact and that the conclusions of law were amply supported by the findings of fact. Findings of fact which are supported by competent evidence are conclusive on appeal. Bizzell v. Bizzell, supra; M. & J. Used Cars, Inc. v. Easton, 5 N.C.App. 695, 169 S.E.2d 204 (1969).

We have reviewed the numerous assignments of error and have found no error prejudicial to any substantial right of the defendant.

Affirmed.

FRANK M. PARKER and GRAHAM, JJ., concur.