Calhoun v. Dunn

Court of Appeals of North Carolina

Calhoun v. Dunn

228 S.E.2d 782, 31 N.C. App. 224, 1976 N.C. App. LEXIS 1957

CourtCourt of Appeals of North Carolina

DecidedOctober 20, 1976

DocketNo. 7623DC374

StatusPublished

This text of 228 S.E.2d 782 (Calhoun v. Dunn) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Calhoun v. Dunn, 228 S.E.2d 782, 31 N.C. App. 224, 1976 N.C. App. LEXIS 1957 (N.C. Ct. App. 1976).

Pincite

Opinion

ARNOLD, Judge.

Plaintiff contends that the trial court erred in denying her motion for directed verdict as to defendant’s counterclaim for [226]*226alleged breach of express warranties. Looking at each of the alleged warranties, and viewing the evidence in the light most favorable to defendants, we find the following:

There was evidence by defendants that plaintiff specifically promised that she would remove trash which had accumulated on the property. Defendants testified that plaintiff did not remove the trash, and that it cost them $125 to have the trash hauled away. This evidence was sufficient to go to the jury.

The second alleged warranty was that general painting, carpentry and roofing repairs would be made, and that the house would be in “good shape all around.” The record reflects no evidence of any promise by plaintiff to make any specific repairs, but to the contrary, as Mr. Dunn testified, there never was “any agreement as to specific things to be done to the house” but plaintiff stated that the house would be in “good shape.” Evidence of any alleged warranty as to general paint-ting, carpentry, and roofing was too vague and uncertain to be submitted to the jury, and we know of no standard by which to measure the “good shape” of an old house.

Evidence was presented by defendants concerning an alleged promise by plaintiff to repair the roof. Mr. Dunn testified, “She said that it was to be — or that there was a new four-ply asphalt roof.” We need not determine whether this evidence of an express warranty was sufficient to go to the jury, because defendants failed to present any evidence of damages resulting from this alleged warranty to install a particular roof. They only presented irrelevant evidence concerning the cost of replacing the flat roof with an “A” type roof.

Finally, defendants testified that plaintiff orally warranted that the driveway was located entirely within the boundaries of the lot purchased. Defendants offered evidence to show that the driveway in fact was on a neighbor’s lot. We need not consider whether proof of this alleged warranty violates the parol evidence rule, see Brown v. Hodges, 232 N.C. 537, 61 S.E. 2d 603 (1950), reh. den., 233 N.C. 617 (1951). The evidence was insufficient to submit the issue of this alleged warranty to the jury, because again defendants failed to offer evidence of any damages resulting from the breach.

In conclusion, we find no evidence sufficient to go to the jury on defendants’ counterclaim except as to the alleged war[227]*227ranty concerning the removal by plaintiff of trash on the property. Judgment on defendants’ counterclaim is vacated. The cause is remanded to the District Court of Wilkes County for proceedings on defendants’ counterclaim consistent with this opinion.

Vacated and remanded.

Judges Morris and Hedrick concur.

Free access — add to your briefcase to read the full text and ask questions with AI

ARNOLD, Judge.

Plaintiff contends that the trial court erred in denying her motion for directed verdict as to defendant’s counterclaim for [226]*226alleged breach of express warranties. Looking at each of the alleged warranties, and viewing the evidence in the light most favorable to defendants, we find the following:

There was evidence by defendants that plaintiff specifically promised that she would remove trash which had accumulated on the property. Defendants testified that plaintiff did not remove the trash, and that it cost them $125 to have the trash hauled away. This evidence was sufficient to go to the jury.

The second alleged warranty was that general painting, carpentry and roofing repairs would be made, and that the house would be in “good shape all around.” The record reflects no evidence of any promise by plaintiff to make any specific repairs, but to the contrary, as Mr. Dunn testified, there never was “any agreement as to specific things to be done to the house” but plaintiff stated that the house would be in “good shape.” Evidence of any alleged warranty as to general paint-ting, carpentry, and roofing was too vague and uncertain to be submitted to the jury, and we know of no standard by which to measure the “good shape” of an old house.

Evidence was presented by defendants concerning an alleged promise by plaintiff to repair the roof. Mr. Dunn testified, “She said that it was to be — or that there was a new four-ply asphalt roof.” We need not determine whether this evidence of an express warranty was sufficient to go to the jury, because defendants failed to present any evidence of damages resulting from this alleged warranty to install a particular roof. They only presented irrelevant evidence concerning the cost of replacing the flat roof with an “A” type roof.

Finally, defendants testified that plaintiff orally warranted that the driveway was located entirely within the boundaries of the lot purchased. Defendants offered evidence to show that the driveway in fact was on a neighbor’s lot. We need not consider whether proof of this alleged warranty violates the parol evidence rule, see Brown v. Hodges, 232 N.C. 537, 61 S.E. 2d 603 (1950), reh. den., 233 N.C. 617 (1951). The evidence was insufficient to submit the issue of this alleged warranty to the jury, because again defendants failed to offer evidence of any damages resulting from the breach.

In conclusion, we find no evidence sufficient to go to the jury on defendants’ counterclaim except as to the alleged war[227]*227ranty concerning the removal by plaintiff of trash on the property. Judgment on defendants’ counterclaim is vacated. The cause is remanded to the District Court of Wilkes County for proceedings on defendants’ counterclaim consistent with this opinion.

Vacated and remanded.

Judges Morris and Hedrick concur.

Cite This Page — Counsel Stack

Bluebook (online)

228 S.E.2d 782, 31 N.C. App. 224, 1976 N.C. App. LEXIS 1957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calhoun-v-dunn-ncctapp-1976.

Opinion

Related

Cite This Page — Counsel Stack