Richard Clifton ROSE
v.
EPLEY MOTOR SALES and Jerome Epley.
No. 98.
Supreme Court of North Carolina.
June 26, 1975.*576 Robert E. Hodges, Morganton, for plaintiff.
Byrd, Byrd, Ervin & Blanton, P. A. by Robert B. Byrd and Joe K. Byrd, Jr., Morganton, for defendants.
LAKE, Justice.
There was no error in the denial by the District Court of the defendants' motion to dismiss for failure to state in the complaint a claim upon which relief can be granted. The basis of this motion is that the complaint does not state wherein the alleged implied warranties were broken or otherwise allege any act or omission of the defendants or any condition of the automobile at the time of the sale which caused the fire.
The complaint would clearly have been insufficient to state a cause of action under the provisions of the old Code of Civil Procedure. Under the present Rules of Civil Procedure, GS, Ch. 1A, it falls far short of being a model pleading but, in our opinion, it does meet the minimum requirements of notice pleading there prescribed. It alleges a sale of an automobile by one engaged in that business, the making of an implied warranty that the automobile was "suitable for everyday use and transportation" (i. e., the normal use of such article) and that after only three hours of normal operation it was destroyed by a fire originating in the engine compartment, for which reason the plaintiff, with reasonable promptness, asserted to the defendants his right to rescind the sale. The prayer is for rescission and recovery of the purchase price. These allegations are sufficient to notify the defendants and advise the court that the plaintiff demands rescission for breach of the alleged warranty.
The requirement for a sufficient statement of a claim for relief is thus stated in Rule 8(a): "(1) A short and plain statement of a claim sufficiently particular to give the Court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief, and (2) A demand for judgment for the relief to which he deems himself entitled * * *."
In Moore, Federal Practice, § 12.08, it is said that the defendant's remedy for mere vagueness or lack of detail in a complaint is a motion for a more definite statement. No such motion was made in the present case. In Sutton v. Duke, 277 N.C. 94, 104, 176 S.E.2d 161, 167 speaking through Justice Sharp, now Chief Justice, we said, "A pleading complies with the rule if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it, to file a responsive pleading, andby using the rules provided for obtaining pretrial discoveryto get any additional information he may need to prepare for trial." See also: Redevelopment Commission v. Grimes, 277 N.C. 634, 645, 178 S.E.2d 345.
Even under the old Code of Civil Procedure distinction was drawn between a complaint which disclosed "a defective cause of action" and one which made "a defective statement of a good cause of action," the latter situation being present when the complaint failed to allege a necessary fact which presumably could be supplied by an amendment. See: Sutton v. Duke, supra, 277 N.C. at p. 106, 176 S.E.2d 161. Thus, even under the old Code of Civil Procedure, *577 the plaintiff could have been permitted to amend his complaint to supply the missing, then essential, allegation that the vehicle was not as warranted, which defect caused the fire, and dismissal of the action would not have been proper.
There was likewise no error in the denial of the defendants' motion for a directed verdict. Such motion is similar to the motion for judgment of nonsuit under the former practice and, in consideration of it, the evidence must be interpreted in the light most favorable to the plaintiff, must be considered as true and all reasonable inferences to be drawn therefrom must be made in his favor. Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396.
So considered, the evidence is sufficient to show the plaintiff purchased a used automobile from the defendant dealer in such commodities, that nothing whatever was said about a warranty of the condition of the car, that nothing was done to the automobile after the sale which altered its condition, that at all times following the sale the plaintiff operated it in a normal and proper manner, that three hours after the sale, while it was being so operated, it was totally destroyed by a fire originating in its motor compartment and that on the following day the plaintiff demanded rescission of the contract of sale, which demand the defendant refused. From the facts shown by the plaintiff's evidence, taken to be true, it may reasonably be inferred that the vehicle sold to him by the defendants was not in condition suitable for ordinary driving at the time of the sale, three hours before the fire.
GS § 25-2-314 (part of the Uniform Commercial Code) provides:
"Implied warranty: Merchantability; usage of trade. (1) Unless excluded or modified (§ 25-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. * * *
(2) Goods to be merchantable must be at least such as
(a) pass without objection in the trade under the contract description; and * * *
(c) are fit for the ordinary purposes for which such goods are used; * * *"
Epley Motor Sales is a "merchant" as that term is defined in the Uniform Commercial Code. GS § 25-2-104. The term "goods" includes an automobile within the meaning of the Code. GS § 25-2-105.
Official Comments upon GS § 25-2-314 state that the warranty of merchantability applies to sales for use as well as to sales for resale; a contract for the sale of second-hand goods involves only such obligation as is appropriate to such goods for that is their contract description; fitness for the ordinary purposes for which goods of the type are used is a fundamental concept of this section of the Uniform Commercial Code; and in an action for breach of warranty it is necessary to show not only the existence of the warranty but the fact of its breach and that the breach was the proximate cause of the loss sustained.
GS § 25-2-316 provides that to exclude such implied warranty of merchantability the language used for that purpose must mention merchantability, except that, unless the circumstances otherwise indicate, all implied warranties are excluded by expressions like "as is" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty. This section of the Code also provides that when the buyer, before entering into the contract, has examined the goods as fully as he desired there is no implied warranty with regard to defects which such examination ought, in the circumstances, to have revealed to him.
The defendants' testimony is that nothing whatever was said about any warranty. There is no evidence in the record indicating any exclusion of the implied warranty *578 of fitness for purpose as provided in GS § 25-2-316. Although the evidence shows that the plaintiff test drove the automobile and looked it over before making the purchase, nothing in the evidence would compel, or even support, a finding that the defect, if any, which caused the fire should have been discovered by him through such test driving and inspection, he not being a mechanic. See: Motors, Inc. v. Allen, 280 N.C. 385, 395, 186 S.E.2d 161.
The Uniform Commercial Code provides that if the goods fail in any respect to conform to the contract, the buyer may reject them within a reasonable time after their delivery, provided he seasonably so notifies the seller. GS § 25-2-601, GS § 25-2-602. The buyer who has accepted goods as performance of the seller's contract may revoke his acceptance when there is a nonconformity of the goods to the contract which substantially impairs their value to him, provided his failure to discover such nonconformity prior to his acceptance of the goods was reasonably induced by the difficulty of such discovery and he notifies the seller of such revocation within a reasonable time after he discovers, or should have discovered, the ground therefor and before any substantial change in the condition of the goods not caused by their own defects. GS § 25-2-608. When the buyer justifiably revokes his acceptance of the goods, he may cancel the sale and recover the purchase price together with such other damages as may be justified. GS § 25-2-608(3); GS § 25-2-711; Motors, Inc. v. Allen, supra, at p. 395 et seq., 186 S.E.2d 161.
Consequently, the evidence, interpreted in the light most favorable to the plaintiff, is sufficient to support a verdict in his favor and there was no error in the denial of the motions by the defendants for a directed verdict in their favor.
There was, likewise, no error in the denial of the defendants' motions for judgment notwithstanding the verdict.
There was, however, error by the District Court in granting the motion of the plaintiff for a directed verdict. The burden is upon the buyer to establish a breach by the seller of the warranty of merchantability; that is, to show that the defect which caused the fire existed at the time of the sale. GS § 25-2-607(4). The evidence in the record is sufficient to permit an inference to this effect, but it does not compel such a finding even if true and the credibility of the plaintiff's evidence is for the jury. The trial judge may not direct a verdict in favor of the party having the burden of proof when his right to recover depends upon the credibility of his witnesses, even though the evidence is uncontradicted, the defendants' denial of an alleged fact, necessary to the plaintiff's right of recovery, being sufficient to raise an issue as to the existence of that fact, even though he offers no evidence tending to contradict that offered by the plaintiff. Cutts v. Casey, 278 N.C. 390, 417-422, 180 S.E.2d 297.
Consequently, the judgment of the Court of Appeals must be, and is hereby, reversed. The matter must be, and is hereby, remanded to that Court with direction to enter judgment vacating the judgment of the District Court and remanding the matter to the District Court for a new trial.
Reversed and remanded.