Williams v. Dixie Chevrolet Co.

182 S.E. 719, 209 N.C. 29, 1935 N.C. LEXIS 11

Opinion

Stacy, C. J.,

after stating the case: The full significance and import of the first issue seems to have been overlooked on all hands. If the automobile purchased by the plaintiff were so defective “that it was not reasonably fit for the use for which it was intended,” then the plaintiff would be entitled to recover of the seller for want of consideration. Swift & Co. v. Aydlett, 192 N. C., 330, 135 S. E., 141; Register Co. v. Bradshaw, 174 N. C., 414, 93 S. E., 898; DeWitt v. Berry, 134 U. S., 306; 6 R. C. L., 684, et seq. Similarly, the seller would be entitled to recover over against the dealer or manufacturer, irrespective of the terms of the contract of warranty. Ashford v. Shrader, 167 N. C., 45, 83 S. E., 29. It is believed that a covenant, however expressed, must be regarded as nude pact, and not binding in law, if founded solely upon considerations which the law holds altogether insufficient to create a legal obligation. Hatchell v. Odom, 19 N. C., 302. “If it (the article sold) be of no value to either party, it of course cannot be the basis of a sale” — Ashe, J., in Johnston v. Smith, 86 N. C., 498. The refusal to warrant against worthlessness would fall with the balance of the supposed contract for want of consideration. Furniture Co. v. Mfg. Co., 169 N. C., 41, 85 S. E., 35 (Hearse case).

So long as the first issue stands, it is not worth while to consider the other questions debated on brief. There was error, however, in directing a verdict on this issue, considering the breadth of its terms, and for which a new trial must be awarded the appellants. It is so ordered.

New trial.