Appeal by defendants from Phillips (Herbert O.), Judge. Judgment filed 5 March 1981 in District Court, Carteret County. Heard in the Court of Appeals 13 January 1982.
Martin (Harry C.), Judge. Chief Judge Morris and Judge Vaughn concur.
In order to determine the rights of the parties under these facts, we must first resolve the threshold question of whether, under the provisions of N.C.G.S. 25-2-313, defendants expressly warranted to plaintiff that the tractor was in good condition and free from major mechanical defects.
The statute states in pertinent part:
Any 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.
N.C. Gen. Stat. § 25-2-313(1)(a) (1965).
We note initially that secondhand goods may have an express warranty attached to them and that the warranty provisions are applied without regard to whether the seller is a manufacturer, merchant, or farmer. See 3 Williston on Sales § 17-4 (4th ed. 1974). Moreover, neither the formal words of an express warranty nor the seller's intent to afford such a warranty is necessary to fulfill the requirements of the statute. See N.C. Gen. Stat. § 25-2-313(2). "The single most important decision to make is whether the seller's statements were so regarded by the buyer as part of his reason for purchasing the goods." Williston, supra § 17-5 at 12. Whether the parties to the transaction have created an express warranty is a question of fact. N.C. Gen. Stat. § 25-2-313, Comment 3 (1965).
We are persuaded under the facts before us that defendants expressly warranted to plaintiff that the tractor was in good condition and free from major mechanical defects. Plaintiff testified that his decision to purchase the tractor was initiated by the following advertisement which appeared in The News and Observer: "John Deere, 3020, gas, PWR [power shift], with 4 by 16 bottom plow. good condition. $5.000.00." (Emphasis ours.) Plaintiff further testified that defendants represented to him that "they had never had any trouble; [t]hat it was a good tractor"; that "the only thing wrong with the tractor was that it was a used tractor; that it operated as good as when it was new"; and that "the transmission was in good condition and the hydraulic was in good condition." Plaintiff allegedly told defendants that if
he bought the tractor he would "buy it based on what they said because they had been operating the tractor and he had not." Plaintiff's father, who was present during these negotiations, corroborated plaintiff's testimony.
Defendants did not deny that they represented the tractor as being in good condition, but denied ever giving plaintiff an unqualified statement that there was nothing wrong with it. Bobby Byrd testified that he responded to each of plaintiff's inquiries concerning the condition of the tractor by stating that "as far as I know, it's good." Rather than intended as affirmations of fact, defendants contend that their responses were intended as mere opinion, "puffing" or sales talk. See N.C. Gen. Stat. § 25-2-313(2).
The distinction between an affirmation or a description . . . from mere sales talk, or opinion, or puffing is so hazy that the courts in the final analysis will often rely on their own sense of fairplay, thereby evaluating ...