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Simmons v. C. W. Myers Trading Post Inc.

Filed: April 6, 1982.

LESSIE SIMMONS
v.
C. W. MYERS TRADING POST, INC.



Appeal by plaintiff from Alexander, Judge. Judgment entered 10 February 1981 in District Court, Forsyth County. Heard in the Court of Appeals 1 February 1982.

Martin (Harry C.), Judge. Chief Judge Morris concurs.

Martin

Plaintiff's first three assignments of error concern the trial court's exclusion of her testimony regarding the value of the trailer in question. She argues that this testimony was competent in determining the issue of damages. She further contends that its exclusion constituted prejudicial error, because the trial court granted defendant's motion for a directed verdict on the basis of plaintiff's failure to present evidence of damages.

In evaluating the merits of plaintiff's argument, this Court must first determine the merits of plaintiff's three claims for relief. Plaintiff's first claim for relief, based upon the alleged breach of the Residential Rental Agreements act by defendant, is invalid. This act did not become effective until 1 October 1977. The written agreement between plaintiff and defendant was signed almost one year prior to this date. In plaintiff's third claim for relief, she sought to recover a share of the insurance proceeds recovered by defendant after the trailer burned. Plaintiff failed to present any authority or evidence supporting this claim.

Moreover, upon considering the three issues presented to the jury, it appears that plaintiff relied solely upon her second claim for relief at trial.

Plaintiff's second claim for relief relies upon a breach of the Retail Installment Sales Act. In her complaint plaintiff alleged that the agreement between the parties, entitled "Lease with Option to Purchase Trailer," constituted a consumer credit sale under North Carolina's Retail Installment Sales Act. Under this act such a sale

includes but is not limited to any contract in the form of a bailment or lease if the bailee or lessee contracts to pay as compensation for use a sum substantially equivalent to or in excess of the aggregate value of the goods and services involved, and it is agreed that the bailee or lessee will become, or for no other or for a nominal consideration, has the option to become, the owner of the goods and services upon full compliance with his obligations under such contract.

N.C. Gen. Stat. § 25A-2(b) (Cum. Supp. 1981). The parties' written agreement comes within this definition. The parties stipulated that plaintiff had missed some of her monthly payments. This delinquency, though, did not terminate the agreement since defendant never exercised its option in the agreement to terminate the contract upon plaintiff's failure to make a payment. Plaintiff further alleged in her complaint that defendant violated N.C.G.S. 25A-20 of the Retail Installment Sales Act by including in the agreement the words, "Leased as is." These words excluded defendant's express warranty to repair the trailer. She alleged that a willful violation of N.C.G.S. 25A-20 constituted an unfair trade practice entitling her to treble damages. See N.C. Gen. Stat. § 25A-44(4) (Cum. Supp. 1981).

At trial plaintiff presented testimony that Myers informed her he would fix specified defects in the trailer before it was delivered; that the trailer was delivered in its defective condition; that plaintiff repeatedly requested Myers to repair the trailer after it was delivered; that Myers continued to promise that the repairs would be made, and that the defects were never repaired. Plaintiff also offered into evidence the written agreement signed by the parties. This agreement contained a list of defects to be repaired. Plaintiff, therefore, was entitled to present evidence of

damages caused by the alleged breach of defendant's express warranty to repair.

Under the Uniform Commercial Code, the general measure of damages for breach of warranty "is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount." N.C. Gen. Stat. § 25-2-714(2) (1965). Special circumstances in the case sub judice would seem to require that plaintiff recover only a fraction of the difference between the fair market value of the trailer as delivered and the value of the trailer as warranted. Specifically, at the time the trailer burned, plaintiff had not made the total payments required to exercise her option to buy the trailer. The fraction to which she is entitled is therefore the total payments made by plaintiff ...


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