Ward v. Nurney

208 N.C. 53

Opinion

BeogdeN, J.

The defendant offered competent evidence tending to establish a warranty and the breach thereof. There was also evidence upon which a jury could have inferred that the plaintiff gave the note in controversy as a renewal of a former note after he had knowledge of the breach of warranty and the worthless condition of the car.

Manifestly, upon such facts, nothing else appearing, the peremptory instruction would have been correct. Barco v. Forbes, 194 N. C., 204, 139 S. E., 227; Bulluck Auto Co. v. Meyer, 206 N. C., 198, 172 S. E., 877.

However, the plaintiff testified that he did not know exactly when he bought the car, but did state positively, “At the time I signed this note, elated 1 January, 1924, I bad not found out that tbe car was worthless. If I bad known at that time that tbe car was worthless I would not have signed tbe note.”

While tbe testimony is indefinite and wobbles considerably, nevertheless, it warranted submittal to tbe jury.

Reversed.