H. C. LILLEY, JR. v. MANNING MOTOR COMPANY, INC., and FORD MOTOR COMPANY, INC., 262 N.C. 468

MooRE, J. Plaintiff bottoms his suit upon the principle that where the property purchased is a mechanical device the buyer has a reasonable time in which to operate and test it and, if it is found that the machine does not fill the specifications of the contract and warranty, he may continue to keep and use it and may maintain an action for damages for breach of the warranty. Hajoca v. Brooks, 249 N.C. 10, 105 S.E. 2d 123; Hendrix v. Motors, Inc., 241 N.C. 644, 86 S.E. 2d 448; Potter v. Supply Co., 230 N.C. 1, 51 S.E. 2d 908; Huyett & Smith Mfg. Co. v. Gray, 124 N.C. 322, 32 S.E. 718.

It is the plaintiff’s position that the automobile was substantially defective when delivered, this consti- tuting a breach of the warranty, and that he was entitled to and did recover the difference between the reasonable market value of the automobile as warranted and as delivered. Insurance Co. v. Chevrolet Co., 253 N.C. 243, 116 S.E. 2d 780; Underwood v. Car Co., 166 N.C. 458, 82 S.E. 855. The case was apparently tried in accordance with the plaintiff’s theory. Defendant assigns as error the denial of its motion for involuntary nonsuit.

This presents the crucial question whether the evidence makes out a prima facie case of breach of warranty on the part of defendant. We have recognized the principle that there can be no implied warranty of quality in the sale of personal property where there is an express warranty, and that where a party sets up and relies upon a written warranty he is bound by its terms and must comply with them. The failure of a purchaser to comply with the conditions of the warranty is fatal to a recovery for breach thereof. Service Co. v. Sales Co., 261 N.C. 660, 667, 136 S.E. 2d 56; Petroleum Co. v.

Allen, 219 N.C. 461, 14 S.E. 2d 402; Guano Co. v. Live Stock Co., 168 N.C. 442, 83 S.E. 774. In the instant case the written warranty was introduced in evidence and relied on by plaintiff. It provides: “This warranty is expressly in lieu of any other express or implied warranty, including any implied warranty of merchantability or fitness, and of any other obligation on the part of the dealer.” There are exceptions to the rule that an express warranty excludes implied warranties of quality. Fertilizer Works v. Aiken, 175 N.C. 398, 95 S.E. 657; 164 A.L.R., Anno. — Express and Implied Warranties, pp. 1325-6.

But stipulations negativing implied warranties have been held valid in almost all cases throughout the country that seem to have passed on that point. Petroleum Co. v. Allen, supra; Guano Co. v. Live Stock Co., supra; 117 A.L.R., Anno. — Sale — Negation of Implied Warranties, pp. 1352-1355. Therefore, the only warranty binding on defendant is the written warranty.

Defendant warranted “each part of this 1962 Ford to be free from defects in material and workmanship for a period of twelve months from the date of delivery ... or until it has been driven for twelve thousand miles, whichever comes first.” It is further provided that “This warranty shall be fulfilled by the Dealer . . . replacing at his place of business, free of charge including related labor, any- such defective part.” Both parties are bound by this special warranty. A failure by the purchaser to comply with the conditions of the warranty is fatal to a recovery for breach of the warranty in an action thereon.

Petroleum Co. v. Allen, supra; Farquhar Co. v. Hardware Co., 174 N.C. 369, 93 S.E. 922; Main Co. v. Griffin, 141 N.C. 43, 53 S.E. 727. Under the terms of the warranty defendant was entitled to notice of defects in the parts of the automobile and to be given an opportunity to remedy the deficiencies. The uncontradicted evidence is that defendant replaced or adjusted every defective

part called to his attention, and which plaintiff would permit him to replace or adjust. Plaintiff refused to permit him to replace the hood and headliner, and plaintiff thereafter made no further complaints to defendant. There is no evidence that the replacements made by defendant were unsatisfactory. At the trial plaintiff acknowledged that defendant did everything he was requested to do with respect to the replacement of parts. Plaintiff prevented defendant from further complying with the terms of the warranty; this is fatal to plaintiff’s action. Insurance Co. v. Chevrolet Co., supra; 77 C. J.

S., Sales, § 340, p. 1235. A vendee may recover against the vendor, irrespective of the terms of the warranty, if there is a failure of consideration. If an

article is of no value to either party, it cannot be the basis of a sale. Service Co. v. Sales Co., supra; Williams v. Chevrolet Co., 209 N.C. 29, 182 S.E. 719. But plaintiff does not base his action upon failure of consideration. On the contrary he alleges that the automobile was of substantial value at the time of its delivery. Defendant’s motion for judgment of involuntary nonsuit should have been allowed. Reversed.