Upton TYSON
v.
CIBA-GEIGY CORPORATION and Farm Chemical Corporation.
No. 8612SC220.
Court of Appeals of North Carolina.
September 2, 1986.*475 Thorp & Clarke by Herbert H. Thorp, Fayettville, for plaintiff, appellant, cross-appellee.
Smith Helms Mulliss & Moore by Alan W. Duncan, Greensboro, for defendant, appellee, cross-appellant, Ciba-Geigy Corporation.
Willcox & McFadyen by Duncan B. McFadyen, III, Raeford, for defendant, appellee, cross-appellant, Farm Chemical Corporation.
HEDRICK, Chief Judge.
Plaintiff first assigns error to the trial court's denial of his pretrial motion to amend his complaint to allege negligence, made over a year and a half after the *476 original complaint was filed. G.S. 1A-1, Rule 15(a) gives the trial court broad discretion in determining whether leave to amend will be granted after the time for amending as a matter of course has expired. Willow Mountain Corp. v. Parker, 37 N.C.App. 718, 247 S.E.2d 11, disc. rev. denied, 295 N.C. 738, 248 S.E.2d 867 (1978). The denial of such a motion is not reviewable absent a clear showing of abuse of discretion. Garage v. Holston, 40 N.C. App. 400, 253 S.E.2d 7 (1979). We find no such abuse of discretion and this assignment of error is overruled.
Plaintiff also assigns error to the trial court's denial of his motion pursuant to G.S. 1A-1, Rule 15(b) to amend to allege negligence, made at the close of plaintiff's evidence. Plaintiff contends that the issue of negligence was tried by implied consent and, therefore, that the trial court erred in denying his motion to amend to conform to the evidence. We disagree.
G.S. 1A-1, Rule 15(b) provides, in pertinent part, as follows: "When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." In Eudy v. Eudy, 288 N.C. 71, 77, 215 S.E.2d 782, 786-87 (1975), our Supreme Court discussed the application of G.S. 1A-1, Rule 15(b) as follows:
[T]he implication of Rule 15(b) ... is that a trial court may not base its decision upon an issue that was tried inadvertently. Implied consent to the trial of an unpleaded issue is not established merely because evidence relevant to that issue was introduced without objection. At least it must appear that the parties understood the evidence to be aimed at the unpleaded issue.
(Citations omitted.) Where the evidence which supports an unpleaded issue also tends to support an issue properly raised by the pleadings, no objection to such evidence is necessary and the failure to object does not amount to implied consent to try the unpleaded issue. Munchak Corp. v. Caldwell, 37 N.C.App. 240, 246 S.E.2d 13, disc. rev. denied, 295 N.C. 647, 248 S.E.2d 252 (1978). The trial court's ruling on a motion to amend pursuant to G.S. 1A-1, Rule 15(b) is not reviewable on appeal absent a showing of abuse of discretion. Evans v. Craddock, 61 N.C.App. 438, 300 S.E.2d 908 (1983).
In the present case, the evidence cited by plaintiff in support of the issue of negligence also supports the allegations of breach of warranty, which were raised by the pleadings. Defendants' failure to object to such evidence, therefore, did not amount to implied consent to try the issue of negligence. The trial court did not abuse its discretion in denying plaintiff's second motion to amend to allege negligence.
Plaintiff assigns as error the trial court's granting of defendants' motions for directed verdict. Plaintiff first argues in support of this assignment of error that the evidence is sufficient for the jury to find that Ciba-Geigy breached an express warranty on the Dual 8E label that the product was reasonably fit for the purposes referred to in the directions for use. This argument is without merit. The label attached to the Dual 8E delivered to plaintiff contained the following express warranty: "CIBA-GEIGY warrants that this product conforms to the chemical description on the label and is reasonably fit for the purposes referred to in the Directions for Use." Under the "Directions for Use" the label instructs, "In soybeans, it [Dual 8E] may be applied alone or in combination with Sencor, Lexone, or Lorox in water or fluid fertilizer with conventional ground sprayers." The label also contains tables describing the necessary amount of Dual 8E per acre when using Dual 8E alone or in conjunction with Sencor, Lexone or Lorox. The label does not contain directions for mixing Dual 8E with Paraquat and a surfactant. Vance Tyson testified that he mixed the Dual 8E with Paraquat and a surfactant and that he did not mix the Dual 8E in accordance with the directions for use on the label. The record contains no evidence tending to show that the Dual 8E *477 was not fit for the purposes referred to in the directions for use, and thus there is no evidence that this express warranty was breached by Ciba-Geigy.
Plaintiff also contends that Ciba-Geigy breached the implied warranty of merchantability and this warranty was ineffectively disclaimed on the Dual 8E label. This contention is also without merit.
G.S. 25-2-316(2) provides, in pertinent part, as follows: "to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous." G.S. 25-1-201(10) provides that whether a term or clause is "conspicuous" is for decision by the court and that language in the body of a form is "conspicuous" if it is in larger or contrasting type or color.
The label on the Dual 8E in the present case contains the following language: "CIBA-GEIGY makes no other express or implied warranty of Fitness or Merchantability or any other express or implied warranty." This language is in darker and larger type than the other language on the label and is therefore "conspicuous," as defined by G.S. 25-1-201(10). We hold, therefore, that Ciba-Geigy effectively disclaimed any implied warranties of merchantability or fitness.
Plaintiff argues that he presented sufficient evidence for the jury to find that Farm Chemical breached express warranties relating to the effectiveness of Dual 8E, to kill crabgrass in the no-till cultivation of soybeans. Plaintiff contends that the statements of the sales representative of Farm Chemical that the Dual 8E, when mixed with Paraquat and a surfactant, would "do a good job" created an express warranty.
G.S. 25-2-313(1)(a) provides that "[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise." A salesman's expression of his opinion in "the puffing of his wares" does not create an express warranty. Motors, Inc. v. Allen, 280 N.C. 385, 186 S.E.2d 161 (1972). Thus, statements such as "supposed to last a lifetime" and "in perfect condition" do not create an express warranty. Id. Similarly, the statement made by the salesman in the present case that the Dual 8E would "do a good job" is a mere expression of opinion and did not create an express warranty.
Finally, plaintiff contends that the trial court erred in granting defendant Farm Chemical's motion for directed verdict on the issue of breach of implied warranty. We agree with this contention. G.S. 25-2-315 defines implied warranty of fitness for particular purpose as follows:
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section [Sec. 25-2-316] an implied warranty that the goods shall be fit for such purpose.
The evidence in the present case, when considered in the light most favorable to plaintiff, tends to show that plaintiff contacted defendant Farm Chemical to order the herbicides Lasso and Lorox, for the no-till cultivation of soybeans. He spoke with Mr. Gregory, an employee of Farm Chemical, on the telephone and told him that he was planning the no-till cultivation of soybeans on 145 acres of his land and described the type of soil on the land. Mr. Gregory gave Dual 8E a good recommendation and told plaintiff that it would "do a good job," would be less expensive to use than the chemicals he had used the previous year and would also be less risky to use on plaintiff's type of land. He further told plaintiff that Dual 8E could be mixed with Paraquat and a surfactant to replace Lasso and Lorox. He also told *478 plaintiff the amount of Dual 8E per acre that he should use. Plaintiff testified that based upon Mr. Gregory's recommendation and his past business dealings with Farm Chemical, he decided to use Dual 8E and ordered thirty-five gallons from Farm Chemical. Vance Tyson testified that he mixed the chemicals in accordance with Mr. Gregory's instructions, but that the Dual 8E was ineffective in killing crabgrass. Plaintiff also introduced evidence tending to show that Dual 8E must be mixed with Sencor, Lexone or Lorox and either Ortho Paraquat CL or Roundup. This evidence is sufficient to support a finding that the seller, Farm Chemical, had reason to know of the particular purpose, the no-till cultivation of soybeans, for which the product was required and that plaintiff was relying on its recommendation when he ordered the Dual 8E. There is no evidence in the record indicating that defendant Farm Chemical disclaimed any warranties relating to the Dual 8E. Thus, the evidence in the record is sufficient for a jury to find that Farm Chemical made an implied warranty relating to the fitness of the Dual 8E for plaintiff's purpose and that this warranty was breached. We hold, therefore, that the trial court erred in directing a verdict for defendant Farm Chemical on the issue of breach of an implied warranty of fitness for particular purpose.
By their cross-appeal, defendants contend that the trial court erred in allowing plaintiff's motion to amend his complaint made at the end of plaintiff's evidence to allege that defendants' acts constituted unfair and deceptive trade practices in violation of G.S. 75-1.1. After the trial court allowed plaintiff's motion to amend, it allowed defendants' motions for directed verdict on all issues. In plaintiff's appeal, he has not contended that the trial court erred in granting defendants' motions for directed verdict on the issue of unfair and deceptive trade practices. Therefore, it is unnecessary for us to address defendants' assignment of error on cross-appeal.
For the foregoing reasons, directed verdict for defendant Ciba-Geigy Corporation is affirmed. Directed verdict for defendant Farm Chemical is reversed and remanded for a new trial with respect to plaintiff's claim for breach of an implied warranty of fitness for particular purpose as to defendant Farm Chemical and any and all damages resulting therefrom.
Affirmed in part, reversed in part.
WEBB and WELLS, JJ., concur.