GRAYBAR ELECTRIC COMPANY v. Shook

195 S.E.2d 514 (1973)

283 N.C. 213

GRAYBAR ELECTRIC COMPANY v. Harold E. SHOOK, trading and doing business as Mid-South Contracting Company.

No. 48.

Supreme Court of North Carolina.

April 11, 1973.

*516 Bennett, Kelly & Long, P. A. by Robert B. Long, Jr., Asheville, for plaintiff appellant.

Bruce A. Elmore by George W. Moore, Asheville, for defendant appellee.

HIGGINS, Justice.

The parties admitted the following: (1) The defendant placed an order with the plaintiff for three reels of burial (underground) cable to be delivered at Six Run Grocery Store, a rural community sixteen miles south of Clinton. (2) On April 6 the plaintiff delivered one reel of burial cable and, by mistake, delivered two reels of aerial cable. The aerial cable was totally unsuited to the defendant's use. Defendant notified the plaintiff of the mistake and received a request that the nonconforming reels be returned. Here the parties disagree. The plaintiff contends the defendant contracted to make the return. The defendant contends he agreed to contact a trucking company and request that it pick up and return the nonconforming reels. The defendant's request was turned down by three different trucking concerns on account of a strike in the trucking industry.

As the defendant's underground cable work progressed beyond the Six Run Grocery Store, the defendant left the nonconforming cable at the store and so notified the plaintiff. The evidence discloses that the cable was stored directly beside the grocery store building near the owner's dwelling in a space which the defendant rented for storage purposes. "The area where the cable was stored was well lighted at all times."

On July 20, 1970, the defendant discovered that one of the reels had been stolen and the following day notified the plaintiff. On that day, also, the defendant contacted a garage operator who promised to pick up the remaining reel and store it in his garage some distance from Six Run. However, before the transfer, the second reel was stolen. The defendant so notified the plaintiff.

The court, upon the disputed facts, found the defendant had not entered into a contract to return the nonconforming cable. A finding supported by evidence "must be accepted as final truth upon the appeal to the Supreme Court." Mitchell v. Barfield, 232 N.C. 325, 59 S.E.2d 810. When findings of fact sufficient to determine the entire controversy are made by the court, failure to find other facts is not error. Insurance Company v. Insurance Company, 266 N.C. 430, 146 S.E.2d 410. The plaintiff's claim, therefore, that it was prejudiced by the court's failure to make requested findings is not error. The court's actual findings determined the entire controversy.

The plaintiff, having made the error of delivering the nonconforming goods on a moving job in the country, was entitled to notice of the nonconformity sufficient to enable it to repossess the nonconforming goods. The plaintiff was given prompt notice but delayed action for more than three months. The cable was stolen from the defendant's regular storage space where the plaintiff had delivered it. Evidence is lacking that a safer storage space was available. The defendant's workmen moved on, leaving the cable and the responsibility for its safety on the owner.

The plaintiff, failing in its efforts to establish a contract on the part of the defendant to return the shipment, however, contends in the alternative that G.S. § 25-2-602(2) *517 (b) (Uniform Commercial Code) required the defendant to exercise reasonable care in holding the rejected goods pending the plaintiff's repossession and removal and that the defendant failed to exercise the required care in storage.

Actually, the plaintiff made an on the spot delivery at a store and dwelling in the country. The defendant's work force was stringing underground cable along the highway and the crew was in continual movement. Obviously the crew could not be expected to carry with it two thousand pounds of useless cable and was within its rights placing the cable in its regular storage space and notifying the plaintiff of the place of storage. Both parties realized that cable weighing almost a ton would require men and a truck to remove it. Also both parties assumed that the danger of theft from a well lighted store area was a minimal risk. The property itself was a poor candidate for larceny. The cable was permitted to remain where the plaintiff knew it was located for more than three months. The plaintiff, therefore, had ample opportunity to repossess its property.

The Uniform Commercial Code emphasizes promptness and good faith. The prospective purchaser may exercise a valid right to reject and even if he takes possession, responsibility expires after a reasonable time in which the owner has opportunity to repossess. "Where a tender or delivery of goods so fails to conform to the contract as to give a right of rejection the risk of their loss remains on the seller until cure or acceptance." G.S. § 25-2-510(1). The defendant did not accept the aerial cable. According to the evidence and the court's findings, the defendant acted in accordance with the request of the owner in attempting to facilitate the return of that which the defendant rejected. The plaintiff with full notice of the place of storage which was at the place of delivery did nothing but sleep on its rights for more than three months.

The superior court was fully justified in the findings of fact, conclusions of law, and in the judgment dismissing the action. The judgment of the Court of Appeals affirming the superior court was correct and is now

Affirmed.