Garner v. Kearns

PeR Cueiam. In his answer the defendant denied that he agreed to pay plaintiff $20,000 for his Pontiac agency; in his evidence he admitted it. In his pleadings the theory of defendant’s counterclaim appeared to be a partial failure of consideration; on the trial his theory apparently changed to the breach of an express warranty of value. He can sustain the counterclaim on neither theory. “Breach of warranty in a sales contract is an affirmative plea, whether as a defense or grounds for the recovery of damages, and the burden is on one who asserts it to establish it by the greater weight of the evidence.” Price v. Goodman, 226 N.C. 223, 37 S.E. 2d 592. For the plaintiff’s statements to have constituted a warranty the defendant must have relied upon them. Smith v. Alphin, 150 N.C. 425, 64 S.E. 210. His evidence shows that he did not. Defendant testified that he had examined the parts and equipment in question before he bought the agency and that his opinion as to their value was infinitely lower than the one he said plaintiff had expressed. After taking over the plaintiff’s business as a going concern, the [152] defendant used at least some of the parts and equipment which came with itr for almost a year before he made an inventory and for almost two years before he complained of any shortage. Upon this evidence he may not now assert a counterclaim for a shortage against the plaintiff who is seeking to recover the purchase price. Parker v. Fenwick, 138 N.C. 209, 50 S.E. 627. The judgment of the court below is Affirmed.