Ace Chemical Corp. v. Atomic Paint Co., Inc.

229 S.E.2d 55 (1976)

31 N.C. App. 221

ACE CHEMICAL CORPORATION v. ATOMIC PAINT COMPANY, INC.

No. 7626SC425.

Court of Appeals of North Carolina.

October 20, 1976.

*57 Fairley, Hamrick, Monteith & Cobb by S. Dean Hamrick, Charlotte, for plaintiff-appellee.

G. C. Simmons, III, Lenoir, for defendant-appellant.

HEDRICK, Judge.

Defendant contends the court erred in not submitting to the jury an issue as to whether the defendant accepted the goods, and if it did, whether the defendant revoked its acceptance of the goods. G.S. 25-2-606(1)(c) provides, "Acceptance of the goods occurs when the buyer does any act inconsistent with the seller's ownership. . . ." G.S. 25-2-608(2) provides, "Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects . . . ." All the evidence establishes that defendant took possession of the acetone and used it in manufacturing its finishing products. It is clear the defendant accepted the goods because such a use of the goods was an "act inconsistent with the seller's ownership." It is equally clear that the defendant could not have revoked his acceptance of the goods because such a use created a "substantial change in condition of the goods."

Defendant next contends that the court erred in not instructing the jury that if it found that the contract was for virgin acetone then defendant would be entitled, pursuant to G.S. 25-2-714(2), as an offset to plaintiff's claim, the difference between the value of the goods accepted and the value they would have had if they had been as warranted. The court appears to have given an instruction in compliance with G.S. 25-2-714, but in any event, the defendant could not have been prejudiced by any error in the instruction complained of since the issue of defendant's damages for breach of warranty was not reached, because the jury determined that the defendant did not give notification to the seller of the breach, as provided by G.S. 25-2-607(3)(a).

Defendant finally contends that the court erred in instructing the jury to answer the issue of damages in the amount of $8,716 if it determined that defendant did not notify seller of the nonconformity within a reasonable time after it discovered or should have discovered the nonconformity. Both plaintiff and defendant offered evidence showing that the contract amount was 43,580 pounds, and that the price per pound was $.20. When defendant accepted the goods, he became liable for the goods at the contract rate. G.S. 25-2-607(1). The court properly instructed the jury on the amount of damages.

We hold the defendant had a fair trial free from prejudicial error.

No error.

MORRIS and ARNOLD, JJ., concur.