Continental Jewelry Co. v. Stanfield

Clabic, C. J. The plaintiff relies upon the contract which contains a provision, “Should any article purchased from us fail to give absolute satisfaction to the user, it must be promptly returned to us, and we will furnish free a new duplicate article, and return it at our expense.” But we think that if the articles were brass and not merchantable and of no value, as the defendants testified, to receive a “duplicate” thereof would have been no benefit to the defendants, and such provision would not be a defense to the plaintiff. The defendants were entitled to have the issue submitted to the jury npon that allegation, and the second prayer of the defendants should have been given. If the jury had found that “the jewelry” was “not merchantable, was unsalable, and wholly worthless,” the defendants had the right to return the same, and are not liable for the goods returned, and it was also error for the court to instruct the 'jury that if they “believed all the evidence in the case, as a matter of law, the plaintiff is entitled to recover, and to answer the issue ‘$192, and interest.’ ” ' If, as a matter of fact, the goods were worthless and unmerchantable, the provisions in the contract that the defendants might return any of it and receive another or other articles of the same grade was no warranty at all, except in form, and there was a total failure of consideration. These goods having been sold without opportunity for inspection, there was an implied warranty that they should be at least merchantable. Main v. Field, 144 N. C., 310; Medicine Co. v. Davenport, 163 N. C., 294; Asheford v. Shrader Co., 167 N. C., 45. The issues of fact arising upon the evidence, there being no pleadings in this case begun before a justice of the peace, should have been submitted to the jury upon proper instructions. New trial.