GENERAL ELEC. CO., ETC. v. Pennell

229 S.E.2d 713 (1976)

GENERAL ELECTRIC CO., OUTDOOR POWER EQUIPMENT OPERATIONS v. James W. PENNELL et al.

No. 7623DC510.

Court of Appeals of North Carolina.

November 17, 1976.

*714 Max F. Ferree and George G. Cunningham, Wilkesboro, for plaintiff.

McElwee, Hall & McElwee by John E. Hall, and William C. Warden, Jr., North Wilkesboro, for defendants.

MARTIN, Judge.

Defendants contend in their only assignment of error that the court should not *715 have granted summary judgment for plaintiff. They argue that the case raises several genuine issues of fact. We agree.

First of all, there is a genuine issue of fact as to whether the defendants are liable to plaintiff for any amount at all. It is apparent from the "Security Agreement" executed between the parties on the same day as the "Dealer Franchise Agreement" that, absent other terms in effect at the time of shipment, the defendants did not have to pay for equipment shipped by the plaintiff until the equipment had been sold. In answer to interrogatories on this point, the defendants stated that they had agreed to pay for each item of equipment only after each item was sold and within five days thereafter. Defendants then went on to answer that they had in fact complied with this part of the agreement in that they had paid for each item as soon as they had been sold. The plaintiff seems to contend on appeal that Exhibit B, an agreement in which defendants promised to go ahead and start making monthly payments totalling $7,621.19, controls over the "Dealer Franchise Agreement" and the "Security Agreement" since it was subsequent in time to those agreements. This contention is without merit, however, since the plaintiff's evidence fails to show that the promises contained in Exhibit B were supported by any consideration. The plaintiff failed to allege such facts necessary to enable this Court to see that there was a valuable consideration given for the promises contained in Exhibit B. See Credit Co. v. Insurance Co., 7 N.C.App. 663, 173 S.E.2d 523 (1970). Moreover, Exhibit B states that the promise was given "to reduce the unpaid balance past due" plaintiff, while according to defendants' evidence there was no unpaid balance past due.

There is a second genuine issue of material fact as to plaintiff's liability to defendants for breach of warranty. The attempted disclaimer by plaintiff in paragraph 4(b) of the "Dealer Franchise Agreement" is ineffective, because it is not conspicuous as required by G.S. 25-2-316(2). It is not in capital letters, nor in large or contrasting type, nor does its appearance differ in any way from the rest of the printed form. See G.S. 25-1-201(10).

Reverse.

BROCK, C. J., dissents.

VAUGHN, J., concurs in result.