Smith v. Taylor

261 S.E.2d 19 (1979)

44 N.C. App. 363

Jerry SMITH and wife, Betty Smith v. Johnnie Ray TAYLOR and Phillip Sutton, t/a Silver Horseshoe Stables.

No. 793DC429.

Court of Appeals of North Carolina.

December 18, 1979.

*20 James, Hite, Cavendish & Blount by Robert D. Rouse III, Greenville, for plaintiffs-appellees.

Willis A. Talton, Greenville, for defendants-appellants.

VAUGHN, Judge.

Defendants' argument that the complaint fails to state a claim upon which relief can be granted is without merit. It does not affirmatively appear on the face of the complaint that plaintiffs cannot recover under any state of facts which could be proved in support of the claim, and the complaint gives sufficient notice of the transaction that produced the claim to enable defendants to understand the basis of the claim, to enable them to file a responsive pleading and, by using appropriate discovery, get any additional information considered necessary. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970).

Plaintiffs' motion for summary judgment was properly allowed only if the record at that stage of the proceeding disclosed that there were no genuine issues as to any material facts and that, on those facts, plaintiffs were entitled to judgment as a matter of law. G.S. 1A-1, Rule 56.

The appropriate section of the Uniform Commercial Code provides, in part, as follows:

"(1) . . . there is in a contract for sale a warranty by the seller that . . (b) the goods shall be delivered free from any security interest or other lien or encumbrance of which the buyer at the time of contracting has no knowledge." G.S. 25-2-312 (emphasis added).

In support of their motion for summary judgment, plaintiffs have shown that there are no genuine issues of material facts as to the sale of the tractor to plaintiffs for $2800.00 and existence of a lien on the property resulting in plaintiffs' loss of the property under that prior lien and, consequently, the loss of value for the purchase price paid. Moreover, defendants are not saved by their own alleged ignorance of the existence of the lien.

On this motion for summary judgment, however, the burden was on these *21 plaintiffs, as movants, to produce evidence on every element necessary for them to prove in order to be entitled to judgment. Tolbert v. Tea Co., 22 N.C.App. 491, 206 S.E.2d 816 (1974). In order to recover on the warranty provided by this section of the code, plaintiffs must prove the presence of a lien or encumbrance of which they had no knowledge. Plaintiffs neither alleged nor offered evidentiary material to show that they had no knowledge of the existence of the lien. Summary judgment was, therefore, inappropriate and must be reversed.

Reversed and remanded.

WEBB and HARRY C. MARTIN, JJ., concur.