Robinson v. Branch Moving & Storage Co.

Annotate this Case

221 S.E.2d 81 (1976)

28 N.C. App. 244


No. 7515DC676.

Court of Appeals of North Carolina.

January 7, 1976.

*84 Michael D. Levine and John T. Stewart, Chapel Hill, for plaintiff appellee.

Bryant, Bryant, Battle & Maxwell, P. A., by James B. Maxwell, Durham, for defendant appellant.

MORRIS, Judge.

Defendant contends that the trial court erred in finding an implied warranty of fitness for a particular purpose and ". . . in concluding that the defendant breached that implied warranty." We agree.

In this case, plaintiff buyer stated that the truck was purchased "as it was" at the time of sale and he must bear the loss. Throughout this transaction the defendant seller diligently and repeatedly advised the plaintiff of the risk he was taking by purchasing the unit without an inspection. There is, of course, some question as to whether an inspection would or could have revealed any defects in the truck, but notwithstanding that issue, we hold that where a buyer insists on closing the sale he should not later be allowed to shift the unfortunate results of his own shortsightedness onto his defendant seller. The Uniform Commercial Code is designed to structure the course of sales transactions efficiently and fairly and foster ". . . greater flexibility[,] . . . [provide] relief from unconscionable provisions and. . . [engender] some degree of protection from the hardship resulting from the failure of conditions which it had been assumed would continue to exist." 1 Anderson, Uniform Commercial Code, § 2-101:3, p. 200 (1970). The Code, however, is not a law which guarantees every buyer and every seller a "good deal".

Under the Uniform Commercial Code ". . . an implied warranty can. . . be excluded or modified by . . . [a] course of performance . . . ." G.S. *85 25-2-316(3)(c). Though G.S. 25-2-208 does not specifically define "course of performance", the official comment number 4 indicates that course of performance entails more than a ". . . single occasion of conduct. . . ." Moreover, the fact that this exclusion, raised by the parties' course of performance is oral does not vitiate its utility or relevance.

"In view of the fact that a writing is not desired merely for the sake of having a writing but in order to assure that the buyer is adequately protected against surprise disclaimers, it would seem that a court if faced with the issue of whether a disclaimer had to be in writing, would readily conclude that where the oral waiver was in fact bargained for and was not a surprise term that the buyer is bound by it. In view of the fact that the prime objective of the section of the Code relating to the exclusion or modification of warranties is the prevention of unbargainedfor disclaimers, it is probable that if the circumstances are such that the buyer has consciously made an oral waiver of warranties, the court will give effect to such waiver even though it is an oral, and not a written waiver." 1 Anderson, supra, § 2-316:21, at 691-692.

Furthermore, "[i]f there is a writing. . . and such a writing does not contain the oral clause relied on by the seller as a waiver or limitation of warranties, a question that arises under U.C.C. § 2-202 as to whether parol evidence is admissible to establish the existence of such an alleged oral term of the contract." Id. Under G.S. 25-2-202(a), parol evidence, in this case raised by operation of a course of performance, may be used in order to help explain and supplement this particular lease-purchase agreement. When so supplemented, it is clear that this buyer purchased this truck "as is" and cannot raise an implied warranty claim against his seller.

We need not reach the issue of whether an implied warranty of fitness runs with used goods. Suffice it to say that the defendant seller effectively disclaimed and plaintiff effectively waived whatever warranties may have otherwise existed incident to this transaction.

The trial court apparently deemed it unnecessary, in view of its disposition of the matter, to make findings of fact and conclusions of law with respect to defendant's counterclaim. Our reversal of the trial court's action makes it necessary that facts be found with respect to the counterclaim.

Reversed and remanded.

BROCK, C. J., and BRITT, J., concur.