GARNER v. KEARNS

No. 535.

125 S.E.2d 390 (1962)

257 N.C. 149

Roy GARNER v. Clegg KEARNS.

Supreme Court of North Carolina.

May 9, 1962.


Attorney(s) appearing for the Case

David H. Armstrong, Troy, for plaintiff appellee.

Garland S. Garriss, Troy, for defendant appellant.


PER CURIAM.

In his answer the defendant denied that he agreed to pay plaintiff $20,000 for his Pontiac agency; in his evidence he admitted it. In his pleadings the theory of defendant's counterclaim appeared to be a partial failure of consideration; on the trial his theory apparently changed to the breach of an express warranty of value. He can sustain the counterclaim on neither theory.

"Breach of warranty in a sales contract is an affirmative plea, whether...

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