Berube v. Mobile Homes Sales and Service

220 S.E.2d 636 (1975)

28 N.C. App. 160

Ronald or Sally A. BERUBE v. MOBILE HOMES SALES AND SERVICE.

No. 754DC506.

Court of Appeals of North Carolina.

December 17, 1975.

*638 Billy Sandlin, Jacksonville, for plaintiffs-appellees.

Zennie L. Riggs, Jacksonville, for defendant-appellant.

PARKER, Judge.

Defendant first assigns error to denial of his motions for dismissal. Defendant argues that under G.S. 25-2-511(1), tender of payment is a condition precedent to the seller's duty of delivery, and therefore it did not breach the contract by refusing to install the trailer until the full purchase price was paid. Defendant contends that all the evidence shows it was the plaintiffs, not the defendant, who breached the contract by refusing to go through with purchase of the trailer as originally agreed. However, G.S. 25-2-511(1) provides that "[u]nless otherwise agreed tender of payment is a condition to the seller's duty to tender and complete any delivery." (Emphasis added.) Here, according to plaintiffs' evidence, the parties did otherwise agree. We find no error in the denial of defendant's motions for dismissal.

Defendant further contends the court erred in its charge to the jury in not declaring and explaining the law arising on the evidence given in this case as required by G.S. 1A-1, Rule 51(a). The factual issue around which this case revolves is whether the defendant agreed to install the mobile home before full payment was received. If plaintiffs' evidence is accepted as true, defendant did make such an agreement and it breached the agreement by failing to set up the trailer on 11 November as it had agreed to do. On the other hand if defendant's evidence is believed, no such agreement was made, and plaintiffs breached the contract by repudiating it. The court did not instruct the jury as to the issue of the existence or nonexistence of such an agreement and the resultant consequences, but instead explained the issue as being "whether the plaintiff Berube rejected the deal, or accepted it," defining the terms "acceptance" and "rejection," concepts which do not appear to be directly relevant to the facts of this case. The jurors were not correctly apprised of the issue before them and the law relevant thereto. For failure of the trial judge to comply with the mandate of Rule 51(a), defendant is entitled to a

New Trial.

BRITT and CLARK, JJ., concur.