Cooper v. Mason

188 S.E.2d 653 (1972)

14 N.C. App. 472

Doyle P. COOPER v. C. C. MASON, d/b/a C. C. Mason Chrysler Plymouth and Plymouth Division, Chrysler Motors Corporation.

No. 7230DC90.

Court of Appeals of North Carolina.

May 24, 1972.

*655 Stedman Hines, Bryson City, for plaintiff appellee.

Jones, Jones & Key by R. S. Jones, Jr., Franklin, for defendant appellant Mason.

Hudson, Petree, Stockton, Stockton & Robinson by James H. Kelly and J. Robert Elster, Winston-Salem, for defendant appellant Chrysler Motors Corp.

BRITT, Judge.

Did the court err in entering judgment in favor of plaintiff? We hold that it did.

First, we discuss plaintiff's theory of rescission of contract. Clearly, plaintiff was not entitled to recover of defendant Chrysler on this theory because there was no privity of contract between plaintiff and defendant Chrysler. Nor do we think plaintiff was entitled to recover of defendant Mason on this theory.

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. It is not effective until the buyer notifies the seller of it." Plaintiff's evidence establishes that he accepted and used the vehicle until it was wrecked and at no time rejected it or tendered it to the seller to effect a rescission. The purchaser waives his right to rescind if, after discovery of the defect or fraud, he ratifies the sale by continuing to use the chattel for his own purposes. Insurance Co. v. Chevrolet Co., 253 N.C. 243, 116 S.E.2d 780 (1960). It would seem that seventeen months and 30,000 miles exceed a reasonable time for revocation of the purchase of the automobile under the most liberal interpretations of the term. Burkhimer v. Lindsay Furniture Co., 12 N.C.App. 254, 182 S.E.2d 834 (1971); cert. den., 279 N.C. 511, 183 S.E.2d 686 (1971).

As to plaintiff's warranty action, we need not decide if the written warranty pleaded by defendants and established by the evidence acted as a disclaimer of the implied warranty of fitness pleaded by plaintiff. Suffice to say, plaintiff's warranty action fails for lack of evidence of damages proximately resulting from defects at the time of sale. The evidence showed that after the wreck the left front wheel was broken; that the car had been driven over 30,000 miles; that a wheel bearing retaining ring was found 75 feet from the wrecked car; that tires wore out evenly in less than 8,000 miles and that defendant Mason made several adjustments to the car. In the absence of evidence sufficient to support a finding that a defect existed at the time of sale some seventeen months and 30,000 miles before, defendants were entitled to a dismissal. Hanrahan v. Walgreen Co., 243 N.C. 268, 90 S.E.2d 392 (1955). See Coakley v. Ford Motor Co., 11 N.C.App. 636, 182 S.E.2d 260 (1971), cert. denied, 279 N.C. 393, 183 S.E.2d 244 (1971) for proximate cause under theory of negligence.

For the reasons stated, the judgment appealed from is

Reversed.

CAMPBELL and GRAHAM, JJ., concur.