MSR Enterprises, Inc. v. General Motors Corp.

PARKER, Judge.

The claim and counterclaim as between plaintiff and GMAC having been dismissed with prejudice by consent of those parties, we are concerned on this appeal only with plaintiff’s claim against GMC for wrongful detention of its truck. Plaintiff’s sole assignment of error is directed to the order allowing GMC’s motion for summary judgment as to that claim. We agree with the trial judge that there is no genuine issue as to the material facts relating to the claim against GMC set forth in plaintiff’s complaint and that GMC is entitled to summary judgment in its favor as a matter of law.

The pleadings, depositions, and affidavits establish that there is no dispute that plaintiff delivered its truck to GMC on 22 January 1973 for the purpose of making repairs to a window and to the dash lights, that GMC completed these repairs on 23 January 1973, that it thereafter refused to release the truck to the plaintiff, and that by 27 January 1973 the truck was repossessed by GMAC. Therefore, insofar as plaintiff’s claim against GMC is involved, we are here concerned only with the lawfulness of GMC’s retention of the truck during the period from 23 January to 27 January 1973.

There is no dispute that GMC actually made the repairs which plaintiff requested and plaintiff has never questioned the reasonableness of GMC’s bill in the amount of $46.45 for making the requested repairs. Under G.S., Chap. 44A, Article 1, GMC had a lien on the truck in the amount of its reasonable charges for making the repairs and to preserve that lien it was entitled to retain possession of the truck until its bill was legally satisfied. There is no dispute that at no time prior to 27 January 1973 did plaintiff pay or offer to pay GMC’s bill in cash. Plaintiff contends that it was nevertheless entitled to have the truck released to it by GMC on either of two grounds: first, that the repairs were covered by warranty given it by GMC so that GMC had no lawful right to demand payment of its repair bill in cash; or, second, that plaintiff effectively tendered payment by requesting GMC to apply the repair bill against a credit balance which plaintiff asserts it then had against GMC. We first consider plaintiff’s contention that the repair bill was covered by warranty.

There is no dispute that when GMC sold the truck to plaintiff on 9 November 1972 it issued to plaintiff its written “New Vehicle Warranty” under which it agreed during the warranty period to make certain repairs without charge. The warranty applied for 12 months from the date of delivery “or until the Vehicle hhd been driven for 12,000 miles, whichever first occurs.” It is undisputed that when plaintiff brought its truck to GMC for repairs on 22 January 1973, the odometer showed it had been driven 29,978 miles. Plaintiff did. not then and does not now contend that this mileage was incorrect. On the contrary, when GMC called this to plaintiff’s attention at the time in pointing out that the written warranty no longer applied, plaintiff made no protest as to that but contended that the truck was covered by a special verbal warranty which had been given plaintiff by GMC’s salesman, Harold Hobbs. In this connection, plaintiff’s president, O. W. Rodden, testified by deposition that at the time the truck was purchased “they were checking it out . . . and they dropped a wrench down in the console and fire and smoke came out of it and Mr. Harold Hobbs was aware of this and said, if we had any electrical problems or anything, it would be covered, they would look out for us, it would be covered by warranty.” Rodden and plaintiff’s vice-president, James E. Morgan, also signed an affidavit in which they stated that immediately prior to delivery of the truck “a GMC worker dropped a wrench into the motor area of the tractor and caused an electrical short or other damag-e,” and that upon protest by plaintiff that it would not accept the tractor in this condition, “Harold Hobbs, acting in the capacity of new Truck Sales Manager, made assurances to these Affiants that should any electrical problem develop, he would ‘take care of it’ and he encouraged and insisted that MSR accept delivery.” Relying upon these assurances of the New Truck Sales Manager, plaintiff did accept delivery of the vehicle.

Accepting as true these statements in the deposition and affidavits of plaintiff’s officers, and viewing them in the light most favorable to the plaintiff as the party opposing the motion for summary judgment, they still avail plaintiff nothing. The written Installment Sales Contract signed by plaintiff and GMC when the truck was purchased on 9 November 1972 con--tained in bold print the agreement that there were no express warranties other than GMC’s written new product warranty, and this written warranty in turn contained the clear statements that it was “the only express warranty” applicable to the truck and that GMC “neither assumes nor authorizes anyone to assume for it any other obligation or liability in connection” with the truck. Quite apart from these limitations, even were we to accept that the verbal warranty which plaintiff contends was given it by Hobbs was enforceable against GMC at the time plaintiff’s truck was taken to it for repair, plaintiff’s contention that it had a right to release of its truck without paying the repair bill must still fail. There is no dispute that part of the repair work was repair to the truck window. This work had no connection whatever with “any electrical problem,” which, according to plaintiff’s affidavits, was the only matter in which the special verbal warranty allegedly given plaintiff by Hobbs related. The repair bill itself was itemized and discloses that $25.00 out of the $46.45 total was for repair to the window. Therefore, even accepting plaintiff’s version of the special warranty, more than half of the repair bill was not covered thereby, and plaintiff would have no right to insist, as it did, that the entire bill be considered as within the warranty. Thus, even accepting the special warranty allegedly given by Hobbs as being binding on GMC, plaintiff would have had no right to release of its truck.

We now consider plaintiff’s second contention, that it had a right to release of its truck because it effectively tendered payment by requesting that GMC apply the repair bill against a credit which plaintiff asserts it then had with GMC. In their affidavit plaintiff’s officers assert “that GMC owed MSR $50.00 for a certain Alternator delivered to GMC in the month of December, 1972.” A deposition of one of GMC’s employees, Kenneth Thornton, indicates that this $50.00 was not owed to plaintiff by GMC but was a personal obligation owed plaintiff by Thornton. Resolving this discrepancy in plaintiff’s favor and accepting plaintiff’s version of the matter as true, as we must in passing on defendant’s motion for summary judgment, plaintiff still may not prevail. As stated by our Supreme Court, “it is well understood that mutual debts do not per se extinguish each other, and that in order for one to constitute a payment of another, in whole or in part, there must be an agreement between the creditor and the debtor that the one shall be applied in satisfaction of the other, in whole or pro tanto, according to the respective amounts.” Kilpatrick v. Kilpatrick, 187 N.C. 520, 522, 122 S.E. 877, 378 (1924) ; see 60 Am. Jur. 2d, Payment, § 20, p. 624; 70 C.J.S., Payment, § 32, p. 242. In the present case, the affidavits and depositions of both parties show that GMC never agreed to any offset.

A large part of plaintiff’s affidavits and of the depositions of its officers filed as exhibits to the record on appeal in this case deal with plaintiff’s contention that in November 1972 it had an agreement with GMC by which GMC agreed to sell plaintiff three new trucks, one of which was the truck involved in this case,- and to accept from plaintiff as a down payment thereon four used trucks. Plaintiff contends that GMC “reneged” on this agreement in December 1972. Even if true, these were matters irrelevant to the present litigation.

There being no genuine issue as to any material fact and defendant GMC being entitled to judgment as a matter of law, the order allowing defendant’s motion for summary judgment is

Affirmed.

Judges Britt and Vaughn concur.