Alberti v. Manufactured Homes, Inc.

381 S.E.2d 478 (1989)

Caley Eugene ALBERTI and Linda Haggins Alberti v. MANUFACTURED HOMES, INC., d/b/a AAA Mobile Homes, and Brigadier Homes, Inc.

No. 885SC1134.

Court of Appeals of North Carolina.

August 1, 1989.

*480 Poisson, Barnhill & Britt by James R. Sugg, Jr., Wilmington, for plaintiffs-appellees-appellants.

Murchison, Taylor, Kendrick, Gibson & Davenport by Vaiden P. Kendrick, Wilmington, for defendant-appellant-appellee Brigadier Homes, Inc.

WELLS, Judge.

Defendant assigns error to the trial court's denial of its motions for directed verdict and for judgment notwithstanding the verdict. Motions for directed verdict or judgment notwithstanding the verdict are properly granted only if the evidence is insufficient to support a verdict for the nonmovant as a matter of law. West v. Slick, 313 N.C. 33, 326 S.E.2d 601 (1985).

Revocation of acceptance, a remedy afforded to buyers of goods pursuant to the Uniform Commercial Code, is generally considered to be available only against a seller. See N.C. Gen.Stat. § 25-2-608 (1986). It is available against a manufacturer only if a contractual relationship exists between the manufacturer and the ultimate consumer. Wright v. O'Neal Motors, 57 N.C.App. 49, 291 S.E.2d 165, disc. rev. denied, 306 N.C. 393, 294 S.E.2d 221 (1982).

Plaintiffs contend that the evidence presented at trial demonstrated the existence of such a relationship; they assert that statements made by the manufacturer's sales representative to the retail salesman, which were related to them and upon which they relied, as well as direct contact between plaintiffs and defendant's service *481 representative, created a contractual relationship between plaintiffs and defendant manufacturer. We disagree. These statements, which were made by the manufacturer's agent solely to the seller's agent, cannot be construed to have created a contractual relationship between the defendant manufacturer and plaintiffs. Nor could the evidence that defendant sent its service representative to the home be held to create a contract between it and the plaintiffs. Furthermore, plaintiffs did not allege in their complaint that they purchased the home because of the 365-day warranty flowing from defendant to them. See Wright, supra. Because of the absence of a contractual relationship between the parties, we hold that revocation of acceptance is not available to plaintiffs, as a matter of law. The trial court erred in denying defendant's motions for directed verdict and judgment notwithstanding the verdict.

In the alternative, plaintiffs argue that privity of contract is not required because defendant breached an express warranty. They cite Kinlaw v. Long Mfg. N.C., 298 N.C. 494, 259 S.E.2d 552 (1979), for the proposition that privity of contract is not required in actions for breach of express warranty in the sale of goods by a purchaser against a manufacturer. Although this statement of the holding in Kinlaw is correct, that case does not apply to these facts.

Kinlaw held that "the absence of contractual privity no longer bars a direct claim by an ultimate purchaser against the manufacturer for breach of the manufacturer's express warranty which is directed to the purchaser." Williams v. Hyatt Chrysler-Plymouth, 48 N.C.App. 308, 269 S.E.2d 184, disc. rev. denied, 301 N.C. 406, 273 S.E.2d 451 (1980). In the case now before us, no issue of breach of warranty between plaintiffs and defendant manufacturer was submitted to the jury, and plaintiffs have not cross-assigned error to the trial court's failure to do so. The breach of warranty remedy, upon which plaintiffs now rely to support the judgments, simply does not apply in this case.

Because of our disposition of this appeal we do not consider defendant's other assignment of error.

Plaintiffs gave notice of appeal as to the order amending the judgment and as to the entry of the judgment itself. Plaintiffs did not file an appellants' brief, but have attempted in their appellees' brief to challenge certain aspects of the judgment. Thus, they have failed to preserve any question for our review. See Rule 10(d) and Rule 28(a) and (b) of the North Carolina Rules of Appellate Procedure.

That portion of the trial court's judgment awarding plaintiffs damages "as restitution" is

Reversed.

In all other respects, the trial court's judgment is

Affirmed.

The amendment to the judgment is Vacated.

HEDRICK, C.J., and ARNOLD, J., concur.