Bentley MacHinery, Inc. v. Pons Hosiery, Inc.

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235 S.E.2d 790 (1977)

BENTLEY MACHINERY, INC. v. PONS HOSIERY, INC., J. P. Pons and Stanley Pons.

No. 7625SC893.

Court of Appeals of North Carolina.

June 15, 1977.

*792 Cagle & Houck by Joe N. Cagle and William J. Houck, Hickory, for plaintiff appellee.

McMurray, Triggs & Hodges by C. Gary Triggs, Morganton, for defendants appellants.

HEDRICK, Judge.

Defendants contend the trial court erred in denying their motion to strike the testimony of the witness Collins regarding "any deficiencies on the grounds the testimony was hearsay and therefore not admissible." Assuming arguendo that this question is properly supported by an assignment of error and exceptions duly noted in the record, we are of the opinion that the court committed no prejudicial error, since the promissory note, which was properly admitted into evidence, evidencing the purchase price, interest rate, amount of monthly payments, and total monthly payments, coupled with the fact stipulated in the consent order (partial summary judgment) that, "The Defendant Pons Hosiery, Incorporated has not made any payment to Plaintiff under the terms of the Note and Security Agreement since June of 1974 . . . ," enabled the court to calculate with mathematical certainty the amount of the deficiency. There is plenary competent evidence in the record to support the court's findings of fact with respect to the amount of the deficiency, and these findings support the order that defendants are indebted to plaintiff under the guaranty agreement in the amount of $31,988.71.

By assignments of error 9 and 14, defendants contend the court erred in finding and concluding that defendants are not entitled to recover on their offset for damages resulting in plaintiff's alleged breach of warranty. In their brief defendants simply argue that the evidence discloses that the plaintiff breached the implied warranties of merchantability and fitness for a particular purpose and the express warranty that the goods were "free from defects in materials and workmanship."

G.S. 25-2-316(2) in pertinent part provides as follows:

". . . [T]o exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that `There are no warranties which extend beyond the description on the face hereof.'"

*793 The purchase sales contract in the present case contains the following conspicuous provision:

"Except for the warranty of title, no warranty of merchantability, fitness, nor other warranty (whether expressed, implied or statutory) is made by the seller, except that it warrants the goods to free from defects in materials and workmanship in normal use and service . .."

Construing this provision in light of G.S. 25-2-316(2), we are of the opinion that the contract excluded any implied warranty of merchantability and fitness for a particular purpose, and that the only warranty made by the plaintiff was the exclusive express warranty that the machines were free from defects in materials and workmanship in normal use and service. The evidence supports the court's finding that defendants failed to prove that the plaintiff breached this exclusive express warranty, and the finding supports the conclusion that defendants are not entitled to recover any amount from plaintiff as an offset to its claim.

Affirmed.

BROCK, C. J., and MARTIN, J., concur.