Commercial Credit Equipment Corp. v. Thompson , 48 N.C. App. 594 ( 1980 )

ERWIN, Judge.

The sole question raised by defendants is: “Did the trial court err in granting plaintiff’s motion for judgment on the pleadings?” We answer, “Yes.”

Plaintiff contends that the judgment is proper, in that the Thompsons admitted either expressly or by implication all the material facts necessary to plaintiff’s claim for relief and did not allege a viable affirmative defense against plaintiff. Specifically, the Thompsons, in their answer, admitted execution of the contract and generally denied that any debt was owed. Further, plaintiff argues that the Thompsons failed to allege the affirmative defense of payment and failed to allege fraud in the factum or fraud in the treaty with particularity.

Our Supreme Court, in Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E. 2d 494, 499 (1974), held as follows with reference to judgment on the pleadings: “All allegations in the nonmovant’s pleadings, except conclusions of law, legally impossible facts, and matters not admissible in evidence at the trial, are deemed admitted by the movant for purposes of the motion.”

The Thompsons alleged the following in their answer:

“It is admitted upon information and belief that the plaintiff is the owner of the purported contract attached to the Complaint; however, the defendants allege upon information and belief that several amounts of money in the money column of the purported contract were added to the purported contract after they signed it and further, upon information and belief, the defendants allege that a fraud was perpetrated upon them in that they were told by either a duly authorized agent or partner of Harris Tractor & Implement Co. acting within the course and scope of his agency and employment that they wanted to add the used equipment to the contract in order to provide insurance on it, and defendants, acting in reliance on this misrepresentation allowed said items to be added, not knowing that they were giving a lien on said items of equipment and not knowing that the additional amounts of money would be added to the contract, and therefore defendants have suffered damages.”

We hold that the Thompsons’ answer raises a material issue of fact when the allegations are taken in the light most favorable to the Thompsons; thus, the entry of judgment on the pleadings was improper. The issue of fraud was pleaded, in our opinion, with sufficient particularity to withstand plaintiff’s motion for judgment on the pleadings. See Ragsdale v. Kennedy, supra; Johnson v. Owens, 263 N.C. 754, 140 S.E. 2d 311 (1965); Early v. Eley, 243 N.C. 695, 91 S.E. 2d 919 (1956).

G.S. 25A-25(a) provides:

“§ 25A-25. Preservation of consumers’ claims and defenses. — (a) In a consumer credit sale, a buyer may assert against the seller, assignee of the seller, or other holder of the instrument or instruments of indebtedness, any claims or defenses available against the original seller, and the buyer may not waive the right to assert these claims or defenses in connection with a consumer credit sales transaction. Affirmative recovery by the buyer on a claim asserted against an assignee of the seller or other holder of the instrument of indebtedness shall not exceed amounts paid by the buyer under the contract.”

The sale of goods to be used primarily for agricultural purposes is a consumer credit sale. G.S. 25A-2. Plaintiff, as an assignee of the seller, is subject to defendants’ plea of fraud. Thus, defendants’ defense is not a baseless one.

The trial court erred in entering a judgment on the pleadings.

The judgment entered below is

Reversed.

Chief Judge Morris and Judge Clark concur.