Wilson v. EZ FLO CHEMICAL COMPANY

186 S.E.2d 679 (1972)

13 N.C. App. 610

Douglas O. WILSON, Plaintiff, v. E-Z FLO CHEMICAL COMPANY, a division of Growers Service, Corporation, Defendant and Third Party Plaintiff, v. UNIROYAL CHEMICAL, a Division of Uniroyal, Incorporated, Third Party Defendant.

No. 724SC170.

Court of Appeals of North Carolina.

February 23, 1972.

Certiorari Allowed April 4, 1972.

*680 Chambliss, Paderick & Warrick, by Joseph B. Chambliss, Clinton, for third party plaintiff appellee.

Smith, Anderson, Dorsett, Blount & Ragsdale, by John L. Jernigan, Raleigh, for third party defendant appellant.

Certiorari Allowed by Supreme Court April 4, 1972.

BRITT, Judge.

Appellant first contends that the evidence was not sufficient to support a finding by the court that Uniroyal breached a warranty of fitness for a particular use. We hold that the evidence was sufficient to support the finding. G.S. § 25-2-314(1) provides, "Unless excluded or modified (§ 25-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. . . ." G.S. § 25-2-314(2) (c) provides, "Goods to be merchantable must be at least such as are fit for the ordinary purposes for which such goods are used;. . . ." G.S. § 25-2-315 provides, "Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section [§ 25-2-316] an implied warranty that the goods shall be fit for such purpose."

In this case Uniroyal caused to be placed on the market a product, Alanap, to kill weeds and grasses when applied to certain crops enumerated on the label, among which is squash. E-Z Flo was a distributor of Alanap. Certain manuals were provided E-Z Flo by Uniroyal to guide E-Z Flo in the sale of the product. Everything else about the product was solely within the knowledge of Uniroyal. The manual referred to by E-Z Flo recommended Alanap for squash as a pre-emergent herbicide. The containers were sealed and were delivered by E-Z Flo as received from Uniroyal. The product was warranted by Uniroyal to be fit for the uses described and shown upon the labels attached to the containers. No warranties were made to the plaintiff by E-Z Flo other than those which were made to it by Uniroyal. "We know of no reason why * * * they (assurances on the label) should not constitute *681 a warranty on the part of the original seller and distributor running with the product into the hands of the consumer, for whom it was intended." Simpson v. Oil Co., 217 N.C. 542, 546, 8 S.E.2d 813, 816 (1940). The evidence was plenary to show that Uniroyal expressly and impliedly warranted to the world that its product, Alanap, was fit and proper to be used as a pre-emergent herbicide for control of grasses and weeds in a squash crop. In light of the evidence, the question was one of fact for the judge sitting as a jury to determine. The court's findings of fact are conclusive upon appeal if supported by any competent evidence. Pendergrass v. Massengill, 269 N.C. 364, 152 S.E.2d 657 (1967).

Appellant next contends that even if there were a breach of warranty by Uniroyal, there was active and intervening negligence by E-Z Flo. Appellant contends that the failure of E-Z Flo to read the warning in the manual against the use of Alanap "on vine crops of any kind when growing conditions are very adverse; namely in early spring when weather is cold and wet" constituted negligence which precludes indemnity from Uniroyal. From the evidence presented at trial, it does not appear that the growing conditions were "very adverse" as defined by Uniroyal in its manual. Therefore, the failure to read the warning would seem to be immaterial, but the resulting question of negligence is again a question of fact. The parties having waived trial by jury, the findings of fact, supported as they are by the evidence, are binding upon this court on appeal. Young v. State Farm Mutual Automobile Insurance Co., 267 N.C. 339, 148 S.E.2d 226 (1966).

The judgment appealed from is

Affirmed.

BROCK and VAUGHN, JJ., concur.