Meads v. Davis

Court of Appeals of North Carolina

Meads v. Davis

206 S.E.2d 868, 22 N.C. App. 479, 15 U.C.C. Rep. Serv. (West) 40, 1974 N.C. App. LEXIS 2362

CourtCourt of Appeals of North Carolina

DecidedJuly 17, 1974

Docket741SC424

StatusPublished

This text of 206 S.E.2d 868 (Meads v. Davis) 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

Meads v. Davis, 206 S.E.2d 868, 22 N.C. App. 479, 15 U.C.C. Rep. Serv. (West) 40, 1974 N.C. App. LEXIS 2362 (N.C. Ct. App. 1974).

Pincite

Opinion

BRITT, Judge.

Defendants assign as error the failure of the trial court to instruct the jury: “If the plaintiff did not have a reasonable belief that the goods would be accepted, he does not have the right to cure his defect.” Defendants cite G.S. 25-2-508, Official Comment No. 2. We believe that defendants’ contention as to the law is wrong and that they have misconstrued the comment.

G.S. 25-2-508 (1) provides: “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.” It is clear from *481 this section that the seller may at anytime before the expiration of the time for performance make a conforming delivery regardless of a prior nonconforming delivery. Defendants argue that the right would not exist if there was a prior delivery which the seller could not reasonably believe would be accepted. We reject this argument.

The comment, by its introduction, refers to G.S. 25-2-508 (2), which provides: “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.” Obviously this section deals with the situation in which the seller knows prior to delivery that the goods are not in conformity, but has reason to believe that the buyer will accept. An example of such a situation might be where the buyer orders goods no longer carried by the seller, but the seller has goods which will perform the same function. The section does not apply to the facts shown in the present case.

For the failure of the court to give a requested instruction to be error, the instruction first must be correct. Bass v. Hocutt, 221 N.C. 218, 19 S.E. 2d 871 (1942). In this case, the instruction prayed for was not correct, therefore, the assignment is overruled.

The other assignments of error brought forward and argued in defendants’ brief relate to the trial court’s rulings on the admission and exclusion of certain evidence. Suffice it to say, we have carefully considered the assignments but finding them lacking in merit, they are overruled.

No error.

Chief Judge Bkock and Judge Baley concur.

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

BRITT, Judge.

Defendants assign as error the failure of the trial court to instruct the jury: “If the plaintiff did not have a reasonable belief that the goods would be accepted, he does not have the right to cure his defect.” Defendants cite G.S. 25-2-508, Official Comment No. 2. We believe that defendants’ contention as to the law is wrong and that they have misconstrued the comment.

G.S. 25-2-508 (1) provides: “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.” It is clear from *481 this section that the seller may at anytime before the expiration of the time for performance make a conforming delivery regardless of a prior nonconforming delivery. Defendants argue that the right would not exist if there was a prior delivery which the seller could not reasonably believe would be accepted. We reject this argument.

The comment, by its introduction, refers to G.S. 25-2-508 (2), which provides: “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.” Obviously this section deals with the situation in which the seller knows prior to delivery that the goods are not in conformity, but has reason to believe that the buyer will accept. An example of such a situation might be where the buyer orders goods no longer carried by the seller, but the seller has goods which will perform the same function. The section does not apply to the facts shown in the present case.

For the failure of the court to give a requested instruction to be error, the instruction first must be correct. Bass v. Hocutt, 221 N.C. 218, 19 S.E. 2d 871 (1942). In this case, the instruction prayed for was not correct, therefore, the assignment is overruled.

The other assignments of error brought forward and argued in defendants’ brief relate to the trial court’s rulings on the admission and exclusion of certain evidence. Suffice it to say, we have carefully considered the assignments but finding them lacking in merit, they are overruled.

No error.

Chief Judge Bkock and Judge Baley concur.

Cite This Page — Counsel Stack

Bluebook (online)

206 S.E.2d 868, 22 N.C. App. 479, 15 U.C.C. Rep. Serv. (West) 40, 1974 N.C. App. LEXIS 2362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meads-v-davis-ncctapp-1974.

Opinion

Related

Cite This Page — Counsel Stack