Davis v. Colonial Mobile Homes , 28 N.C. App. 13 ( 1975 )

220 S.E.2d 802 (1975) 28 N.C. App. 13

Ralph W. DAVIS
v.
COLONIAL MOBILE HOMES.

No. 7523DC495.

Court of Appeals of North Carolina.

December 17, 1975.

Edmund I. Adams, Sparta, for plaintiff.

Arnold L. Young, Sparta, for defendant.

MORRIS, Judge.

Both plaintiff and defendant take exception to various aspects of the District Court's judgment and bring forward for our consideration several assignments of error. Grouping the parties' contentions by subject matter, we have before us these questions:

(1) Did the trial court prejudicially err in finding a rejection by the plaintiff buyer?

(2) Where the plaintiff buyer rejects or revokes acceptance does he have the right to incidental and consequential damages?

(3) Where the buyer rejects or revokes his acceptance of goods, does this defendant seller have the ancillary right to cure and repair the alleged defects and then make a binding "re-tender" or a "continuing tender"?

Our Supreme Court, interpreting the applicable provisions under the Uniform Commercial Code, has held that when a seller, as in this case, ships the purchased goods to the delivery point, ". . . the buyer is entitled to a reasonable time after the goods arrive at their destination in which to inspect them and to reject them if they do not comply with the contract." Motors, Inc. v. Allen, 280 N.C. 385, 394-395, 186 S.E.2d 161, 166 (1972); also see Davis v. Enterprises and Davis v. Mobile Homes, supra, 23 N.C.App. at 587, 209 S.E.2d 824. The mere fact that plaintiff Davis paid defendant before delivery ". . . does not constitute an acceptance of goods or impair the buyer's right to inspect or any of his remedies." G.S. 25-2-512(2); also see Motors, Inc. v. Allen, supra, 280 N.C. at 395, 186 S.E.2d 161.

The court found as a fact that plaintiff had ". . . notified the defendant by letter dated July 3, 1973 that he demanded immediate replacement of said mobile home, or in the alternative a refund of all money paid. That thereafter on the 29th day of July 1973 defendant sent a crew of workers to said mobile home to make repairs and adjustments, but the defendant refused to permit said workers to attempt to make repairs and adjustments. That prior to this time the defendant had sent an employee to mobile home of the plaintiff to make repairs on four different occasions. That after ninety days the plaintiff moved out of said mobile home, and has lived in said mobile home only during the summer months." It is not clear from the record whether the on-site repair visits transpired prior to or subsequent to the 3 July 1973 letter to defendant. The evidence, however, is plenary that plaintiff was justifiably dissatisfied with the delivered product and that defendant was well aware of the dissatisfaction. Defendant's district manager, Joey Odell, testified that "[s]hortly after delivery, I made a call on Mr. Davis. He had made some complaints. . . . [H]e had complained . . . that the water heater would not work. . . . Mr. Davis also made other complaints. . . . I [also] received a complaint from the Consumer Protection Division of the Attorney General's Office . . . ." (Emphasis supplied.) When Odell first tried to check out the complaints plaintiff was not there, but he noted that on his second trip to the site he found plaintiff there. "He had numerous complaints. He complained about the closet doors in the bedrooms not being adjusted properly and catching on the bottom—the doors would not close or open. I did some work on the doors. . . . I did all the work I could that day and told Mr. Davis that we would send a service crew up to finish the work. I did not tell him when to expect the crew. At the time I was kind of short on service personnel. I told him I would get to it as soon as I possibly could. . . ."

Defendants returned to the mobile home on 29 July 1973, almost two weeks after plaintiff initiated this action. On this visit they wanted ". . . to see what else we needed to do." Davis, after calling his attorney, would not let defendants work on the unit. Odell further testified that plaintiff ". . . did not want any work performed on the home to get it to his satisfaction."

We think the evidence in this case supports a conclusion that plaintiff revoked his acceptance. The fact that plaintiff stayed in the unit after allegedly revoking or rejecting the unit does not alone necessarily vitiate any of the buyer's rights. In an analogous case, the State Supreme Court held that the ". . . evidence is insufficient to support a finding that she rejected the mobile home. . . ." where, notwithstanding the fact that she told the seller that "`. . . this is not right and I do not want it,'" she moved into the home and made three payments on the unit. Motors, Inc. v. Allen, supra, at 396-397, 186 S.E.2d at 168. Though finding no rejection the Court nonetheless held that "[t]his evidence, considered in the light most favorable to defendant, would permit a jury to find that she initially accepted the mobile home on the reasonable assumption that plaintiff [seller] would correct the nonconforming defects and subsequently revoked her acceptance by reason of plaintiff's failure to do so." Id. at 397, 186 S.E.2d at 168.

However, any error committed by the District Court in finding a rejection instead of a revocation of acceptance must be deemed harmless in view of our determination that the evidence warrants a finding of revocation. In either case the plaintiff's relief is the same. "A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them." G.S. 25-2-608(3). Thus, if the buyer ". . . made an effective rejection of the mobile home, or . . . justifiably revoked . . . [his] acceptance of it, . . . [he] has a right to recover `so much of the price as has been paid' plus any incidental and consequential damages . . . [he] is able to prove. G.S. § 25-2-711(1); G.S. § 25-2-715." Motors, Inc. v. Allen, supra, at 396, 186 S.E.2d at 167; also see Davis v. Enterprises and Davis v. Mobile Homes, supra, 23 N.C.App. at 588, 209 S.E.2d 824.

Defendant contends that he has the right to repair and cure the defects under a continuing tender or re-tender theory notwithstanding plaintiff's notification of rejection or revocation of acceptance.

G.S. 25-2-508 provides that:

"(1) Where any tender or delivery by the seller is rejected because nonconforming and the time for performance has not yet expired, the seller may seasonably notify the buyer of his intention to cure and may then within the contract time make a conforming delivery.

(2) Where the buyer rejects a nonconforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he seasonably notifies the buyer have a further reasonable time to substitute a conforming tender."

In this case, plaintiff paid defendant on 18 May 1973 and the defendant delivered the unit on 7 June 1973. When the defendant's employee Odell went to see plaintiff after delivery he could not tell plaintiff when he would be able to repair the unit. He explained that ". . . it is quite hard to tell the individual or customer when you can possibly get to doing work." In fact, Mr. Richard Hensley, defendant's regional service manager, testified that he did not ". . . know how long it would take to make all the repairs necessary to get the mobile home back in good condition . . ." By their own testimony, defendants were not able to and did not make a conforming delivery within a "reasonable time" or within the "contract time". Under these circumstances, the plaintiff buyer has no further obligations to purchase or accept any mobile home from defendant, whether the original unit repaired or a replacement. See G.S. 25-2-602(2)(b), (c); G.S. 25-2-608(3).

On defendant's appeal: Affirmed.

On plaintiff's appeal: Remanded for hearing and determination on plaintiff's prayer for incidental and consequential damages.

HEDRICK and ARNOLD, JJ., concur.