Poole v. Marion Buick Co. , 14 N.C. App. 721 ( 1972 )

189 S.E.2d 650 (1972) 14 N.C. App. 721

Thomas POOLE
v.
MARION BUICK CO., and General Motors Corporation.

No. 7229DC42.

Court of Appeals of North Carolina.

June 28, 1972.

No brief filed for plaintiff appellee.

Story & Hunter, by Robert C. Hunter, Marion, for defendant appellant, Marion Buick Co.

Dameron & Burgin by Charles E. Burgin, Marion, for defendant appellant, General Motors Corp.

CAMPBELL, Judge.

Defendants assign as error the denial of their motions for directed verdict made at the close of the plaintiff's evidence and renewed at the close of all the evidence and for judgment notwithstanding the verdict.

This assignment of error presents the single question of the sufficiency of the plaintiff's evidence, when viewed in the light most favorable to the plaintiff, to withstand defendants' motions for directed verdict. Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971).

In accordance with the stipulation entered by plaintiff's counsel at the commencement of the trial, the case was tried upon the theory of rescission of the contract. The statute no longer uses that term, but instead speaks of revocation of acceptance. G.S. § 25-2-608. Under this statute, the buyer, in order to effect revocation of acceptance, must notify the seller of such revocation. Until the seller is given notice, there can be no effective revocation of acceptance. Ibid.

All of the evidence on behalf of the plaintiff is to the effect that he began having mechanical trouble with the automobile immediately after he purchased it; that he returned the automobile to Marion Buick on numerous occasions and repairs were made free of charge; that the trouble continued until the engine finally blew up eighteen months after the date of purchase and after the automobile had been driven 27,000 miles. Nowhere is there any evidence that plaintiff ever gave defendants any notice of his revocation of acceptance.

"Notice of rescission of a contract of sale must be clear and unambiguous, conveying the unquestionable purpose to terminate the contract; and where, from the conduct of the one having the right to rescind, it is not clear whether he has rescinded the contract, he will be deemed not to have done so . . . ." 46 Am. Jur., Sales, § 763.

In the instant case plaintiff merely left his automobile at Marion Buick's place of business. There is a conflict in the evidence as to whether plaintiff instructed Marion Buick to determine if the cause of the engine failure was defective materials or workmanship but it is clear from the evidence that plaintiff never gave Marion Buick any notice of revocation of acceptance. Plaintiff kept and operated the automobile for eighteen months and drove it 27,000 miles. There is no construction of the evidence which would allow a jury to find that defendants had been notified of a revocation of acceptance; therefore, defendants' motions should have been allowed.

Defendants properly moved for directed verdict at the close of all the evidence and for judgment notwithstanding the verdict. It is, therefore, appropriate for this Court to order a directed verdict in favor of defendants. Nichols v. C. J. Moss Real Estate, Inc., 10 N.C.App. 66, 177 S.E.2d 750 (1970).

This cause is remanded to the trial court with the direction that judgment be entered in accordance with the motion of appellants for a directed verdict in their favor.

Reversed and remanded.

BRITT and GRAHAM, JJ., concur.