Hyman v. . Broughton

Brogden, J. The contract of sale was in writing and contained the usual stipulation that no oral agreement formed any part of the contract. The allegations in the counterclaim or cross-action of defendant *3 are not sufficient to raise the issue of fraud in the inducement of the contract. Colt v. Kimball, 190 N. C., 169, 129 S. E., 406; Colt v. Conner, 194 N. C., 344, 139 S. E., 694. However, the defendant contends tbat in all sales of personal property without inspection there is an implied warranty tbat the property can be used for the purpose for which it was purchased. It is to be observed tbat there was an express warranty contained in the contract. Tbe law is tbat “an express warranty of quality will exclude an implied warranty of fitness for the purpose intended; but an express warranty on one subject does not exclude an implied warranty on an entirely different subject, an illustration of the latter being, tbat an express warranty of title will not exclude an implied warranty of soundness or merchantability. ¥e have recognized the principle tbat there can be no implied warranty of quality in the sale of personal property where there is an express warranty, and tbat where a party sets up and relies upon a written warranty be is bound by its terms and must comply with them (Main v. Griffin, 141 N. C., 43), and the further principle, applied by us in tbat case, that a failure by the purchaser to comply with the conditions of the warranty is fatal to a recovery for breach of the warranty in an action on it, or where, as in this case, damages for the breach are pleaded as a counterclaim in an action by the seller for the purchase money.” Guano Co. v. Livestock Co., 168 N. C., 442, 84 S. E., 774. The defendant in bis counterclaim or cross-action does not allege or offer evidence tending to show that notice was given to the vendor as required by the written warranty, but the defendant says that this principle does not apply because the property was utterly worthless and that be attempted to offer competent evidence to that effect, which was erroneously excluded by the court. This aspect of the case is governed by the principle declared in Swift v. Aydlett, 192 N. C., 330, 135 S. E., 141. “It ought not and cannot be held as law that a vendor who has sold a well-known article which has value only for a definite, specific purpose, by implication of law, warrants that the article delivered is the article sold, and may in the contract of sale stipulate that be shall be relieved of bis obligation to deliver the very article which be has agreed to deliver in performance of bis contractual obligation.” In other words, if a vendor contracts to sell a gin, be cannot receive the purchase money for a gin and deliver junk. Such transaction would result in a total failure of consideration for the note evidencing the purchase price. Of course, in the absence of fraud, the defendant cannot recover upon bis counterclaim in the light of the facts presented in the record, merely because the gin was of poorer quality of workmanship than be anticipated. His right to recover upon the record as now presented depends *4 entirely upon the application of the principles of law announced in the Aydlett case, supra, and the case of Furniture Co. v. Mfg. Co., 169 N. C., 41, 85 S. E., 35. The evidence of the worthlessness of the property or total failure of consideration of the note sued on should have been submitted to the jury with proper instructions from the court. Failure to do so constituted error, and a new trial is awarded. New trial.