Grossman v. Johnson

Denny, J. This appeal requires an answer to these questions: 1. Did the court below commit prejudicial error by entering on its own motion a judgment as of nonsuit on the defendants’ counterclaim? 2. Did the court err in giving peremptory instruction on the issue submitted? The defendants alleged in their counterclaim that the “29 Simmons Simfoam mattresses and box springs were at the time of delivery to the defendants of the value of $140.65, or some other nominal sum; that they would have been of the value of $1,406.50 if they had answered to said warranty.” The correct rule as to the measure of damages for breach of warranty of personal property is the difference in the market value at the time and place of delivery, between the goods as they were and as they would have been if they had complied with the warranty, with such special damages as were within the contemplation of the parties. Cable Co. v. Macon, 153 N.C. 150, 69 S.E. 14; Underwood v. Car Co., 166 N.C. 458, 82 S.E. 855; Harris v. Canady, 236 N.C. 613, 73 S.E. 2d 559; Hendrix v. Motors, Inc., 241 N.C. 644, 86 S.E. 2d 448. But, where there is no evidence as to the value of the goods at the time and place of delivery, the purchase price will be regarded as the actual value. Cable Co. v. Macon, supra; 35 Cyc., page 648; 55 C.J., Sales, section 844, page 856; 77 C.J.S., Sales, section 367, page 1305. It is not necessary for us to consider or discuss the question of special damages since no such damages were alleged. In the trial below, the defendants offered no evidence whatever as to the difference between the reasonable market value of the mattresses as warranted (if it be conceded they were warranted), and as delivered. Therefore, the court had no alternative other than to regard the purchase price of the goods sold and delivered as the true value thereof. Hence, in our opinion, the judgment as of nonsuit on the defendants’ counterclaim should be upheld. The defendants also except to and assign as error the instruction given to the jury on the issue submitted, which was as follows: “The Court instructs you that if you believe the evidence in this case and find by the greater weight thereof, the facts to be as the evidence tends to show, bearing in mind that the burden is upon the plaintiff, as already explained by the court, then it would be your duty to answer this issue: [574] $387.25. If the plaintiff has failed to so satisfy you, then it would be your duty to answer it in a lesser amount, or nothing.” It is clear that the plaintiff, upon the evidence adduced in the trial below, was entitled to a judgment for the balance of the purchase price. Price v. Goodman, 226 N.C. 223, 37 S.E. 2d 592. Therefore, since the amount of the purchase price of the goods has never been disputed by the defendants, nor the amount of the unpaid balance thereon, the instruction must be upheld. Price v. Goodman, supra. We have carefully considered the remaining exceptions and assignments of error, and in view of the conclusions we have reached on the questions heretofore considered, in our opinion the additional matters complained of and assigned as error could not possibly have affected the result of the trial below. No error. WinboRNE and Higgins, JJ., took no part in the consideration or decision of this case.