Appeal by plaintiffs from Walker, Judge. Judgments entered 27 October 1980 and 29 October 1980 in Superior Court, Guilford County. Heard in the Court of Appeals 22 October 1981.
Martin (Harry C.), Judge. Judges Hedrick and Clark concur.
A motion for summary judgment may only be granted where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See, e.g., Yount v. Lowe, 288 N.C. 90, 215 S.E.2d 563 (1975); Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974); Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972).
In order for a defendant's motion for summary judgment to be granted, the defendant must produce a forecast of the
evidence which he has available for presentation at trial which is sufficient, if considered alone, to compel a verdict in favor of defendant as a matter of law. Failure of the plaintiff to counter the effect of defendant's forecast by his own forecast of evidence sufficient to create a genuine issue of material fact will result in a judgment against him. The test is whether plaintiff has presented evidence sufficient to survive a motion for a directed verdict if such evidence were offered at trial. Cockerham v. Ward and Astrup Co. v. West Co., 44 N.C. App. 615, 262 S.E.2d 651, disc. review denied, 300 N.C. 195, 269 S.E.2d 622 (1980).
Smith v. Funeral Home, 54 N.C. App. 124, 125, 282 S.E.2d 535, 536 (1981).
We affirm the summary judgment as to defendant The Monroe Company. Plaintiffs have not alleged any defects in the roofing materials supplied by The Monroe Company, and they stated in their depositions that they were satisfied with the materials. Plaintiffs seek to hold The Monroe Company liable on grounds that its agent, H. B. Lynch, was negligent in the selection of Junior Miller Roofing Company to perform the repair work. They have also alleged that Lynch was the agent of both The Monroe Company and Junior Miller Roofing Company, and they argue that the negligence of Junior Miller Roofing Company should be imputed to The Monroe Company. The evidence before the trial court will not support their claim.
Plaintiffs alleged in their complaint that on 22 October 1975 they signed a contract with The Monroe Company for the purchase of the roofing materials and that the proposed contract was received by The Monroe Company and became binding on or about 28 October 1975. The Monroe Company admitted entering into this contract in its answer. It then alleged this same contract as the basis of its counterclaim and attached a copy as an exhibit. In their reply to the counterclaim, the plaintiffs admitted entering into the contract. A copy of the contract has been filed with this Court. It includes the following provisions:
2. This Acknowledgment contains the entire agreement of sale between the parties, and no other representations, agreements, estimates or other verbal statements or writing relating to this transaction or the goods hereinabove described,
except the aforesaid separate written Guaranty, shall be of any binding effect between the parties hereto.
3. Seller shall not be responsible for application or installation of the goods, or supervision thereof, unless otherwise agreed in a writing signed by Seller; any such application, installation or supervision performed for Buyer by any person also employed by Seller shall ...