Leviton Manufacturing Co. v. Butch Manufacturing Co. ( 1978 )

247 S.E.2d 1 (1978) 37 N.C. App. 726

LEVITON MANUFACTURING CO., Incorporated
v.
BUTCH MANUFACTURING COMPANY.

No. 7725SC878.

Court of Appeals of North Carolina.

August 29, 1978. Certiorari Denied and Appeal Dismissed November 3, 1978.

Patton, Starnes & Thompson by Thomas M. Starnes, Morganton, for plaintiff-appellee.

Turner, Enochs, Foster & Burnley by James H. Burnley, IV, and E. Thomas Watson, Greensboro, for defendant-appellant.

Certiorari Denied and Appeal Dismissed by Supreme Court November 3, 1978.

HEDRICK, Judge.

Defendant's contentions are that the trial court erred by improperly shifting to defendant the burden of proof as to the price of Item 4158 and that the evidence was insufficient to support the trial court's findings of fact regardless of the burden of proof problem. In Finding of Fact No. 5, the trial court stated:

"(5) The Defendant has failed to satisfy the Court by the greater weight of the evidence that the Plaintiff and the Defendant had agreed upon one or more prices for the aforesaid Part No. 4158 that differed from the prices that the plaintiff actually charged to the defendant for the said Part No. 4158;"

While we believe that this finding of fact represents an unfortunate and, technically speaking, erroneous choice of language, we cannot find that it constitutes reversible error.

In an action under G.S. 25-2-709(1) for the price of goods sold, the seller must carry the burden of proof as to four elements: (1) acceptance by the buyer of the goods; (2) the price of the goods accepted; (3) the past due date of the price; and (4) the failure of the buyer to pay. In the present case, plaintiff seller presented competent evidence tending to show delivery at invoice prices, acceptance and use of the goods by defendant buyer, at invoice prices, demand for payment by plaintiff seller, acknowledgment of the debt and agreement by defendant to pay, and failure to pay. At the close of the plaintiff's evidence which established a prima facie case, the burden of going forward with the evidence had shifted to defendant. Price v. Whisnant, 232 N.C. 653, 62 S.E.2d 56 (1950). The import of the trial court's Finding of Fact No. 5 was not that defendant had the burden of proof on the issue of price, but rather that plaintiff's evidence had established a prima facie case for recovery of the account and that defendant's evidence failed to overcome the weight of plaintiff's case. This result is somewhat clearer when Finding of Fact No. 5 is considered in conjunction with Finding of Fact No. 4:

"(4) During the periods of time that the Defendant contends that the agreed price of Part No. 4158 was different from the price actually charged to the Defendant by the Plaintiff, quantities of said Part No. 4158 were ordered by the Defendant from the Plaintiff, shipped by the Plaintiff to the Defendant, accepted and used by the Defendant, and charged to the Defendant by the Plaintiff at prices clearly reflected upon the written invoices;"

In reviewing the record as a whole, we can find no error which necessitates reversing this case. The findings of fact are supported by competent evidence and, in turn, the conclusions of law are supported by adequate findings of fact.

Affirmed.

BROCK, C. J., and WEBB, J., concur.