Volume 40 — North Carolina Court of Appeals Reports

1. Constitutional Law 43; Criminal Law 66.5 — no right to counsel at show-up Defendant was not entitled to counsel at a show-up where he had not been formally charged with a crime at the time of the show-up. 2. Criminal Law 66.10 — impermissibly suggestive police station show-up — finding by court The appellate court is bound by the trial court's findings that a police station show-up procedure was impermissibly suggestive and that a witness's in-court identification was based entirely on the show-up where they were supported by competent evidence. 3. Searches and Seizures 8, 12 — stopping suspect for questioning — seizure of evidence — validity of arrest Officers had reasonable grounds to stop defendant and his companion for questioning where the officers received a radio broadcast reporting an armed robbery in the area they were patrolling and giving a description of the two suspected robbers and the clothing they were wearing, the officers saw defendant and his companion a short distance from the robbery scene, and defendant and his companion generally fit the description of the suspects given over the police radio. Furthermore, there was no evidence to support the court's ruling that there was no probable cause for the officers to arrest defendant and its order suppressing a credit card and other articles belonging to the robbery victim which the officers discovered in defendant's possession where the court found that testimony as to how the officers obtained possession of the credit card and other articles was not believable, and the record was left bare of evidence to explain how the officers obtained such possession.

Garnishment 1 — anticipated military retirement pay — no garnishment Since generally under N.C. law an order of garnishment is unavailable to reach earnings for future pay periods or unaccrued wages, the anticipated retirement pay for a future period of a regular officer, retired from a branch of the military service, is not subject to garnishment.

Master and Servant 68 — hair stylist — sensitivity to chemicals — no compensable disability Plaintiff hair stylist did not have a compensable disability where her incapacity to earn wages was the result of her personal sensitivity to chemicals used in her work rather than an occupational disease.

Bailment 3.3 — bailee's failure to return vehicle — prima facie showing of negligence In an action to recover damages for the loss of a vehicle taken to defendant's place of business for repairs, a jury question was presented on the issue of defendant's negligence where plaintiff made out a prima facie case of defendant's negligence by presenting evidence that he took the vehicle to defendant's garage for repairs and that defendant accepted the vehicle and failed to return it when plaintiff called for it; plaintiff also presented testimony by defendant's president concerning the care exercised by defendant with regard to plaintiff's vehicle; and defendant did not introduce any evidence to explain its failure to return the vehicle.

1. Courts 21.7 — contract governed by laws of state where made Matters bearing upon the execution, interpretation, and validity of a contract are determined by the law of the place where it is made, that is, where the last act to make a binding contract took place; therefore, Virginia law governed in this case since the contracts and promissory notes were executed by all parties in Virginia; the papers dealt with real property located in<page_number>Page 134</page_number> Virginia; plaintiff was a Virginia corporation, though domesticated in N.C.; and the contracts expressly provided that they should be construed according to the laws of Virginia. 2. Contracts 4.1 — mutual promises to buy and sell land — consideration adequate Under the law of the place where the contract in question was made, Virginia, the mutual promises to buy and sell land afforded reciprocal considerations and constituted a valid contract binding upon both parties. 3. Vendor and Purchaser 1 — right to mortgage and prior sale retained by seller — buyer protected Provisions in contracts for the sale of land that seller could mortgage the property or make a prior sale did not make the contracts "totally one-sided in favor of plaintiff," since Virginia law protected defendants by (1) requiring plaintiff seller, who promised to convey a "special warranty deed," to convey title free and clear of any and all claims against himself, and (2) permitting vendee, upon breach of the contract to convey by vendor, to sue for specific performance or for the breach of contract. 4. Vendor and Purchaser 4 — contract to convey special warranty deed — title not unconscionable Defendants' contention that the very nature of the title plaintiff contracted to convey upon payment of the purchase price was unconscionable was without merit since plaintiff promised to convey a "special warranty deed" which would effectively transfer a fee simple interest in the real estate. 5. Contracts 6 — contract to convey land — inexperienced buyers — contract not against public policy In an action to recover the balance due upon contracts for the sale of land, defendants' contention that the contracts and promissory notes were in contravention of public policy and unfair to defendants because they were not experienced in the analysis of legal documents and did not perceive the significance of many of the terms and conditions contained in the agreements was without merit, since there was no evidence or argument that defendants did not understand fully what they were doing or that they did not have the opportunity to have the paperwritings examined and explained to them by someone more experienced than they.

1. Trial 57 — trial without jury — argument by counsel discretionary In a trial without a jury, argument of counsel is a privilege, not a right, which is subject to the discretion of the presiding judge. 2. Divorce and Alimony 21.3 — alimony order — ability to pay Defendant's contention that the trial court erred in concluding that defendant willfully violated a judgment of the court ordering defendant to pay certain sums as alimony because defendant was financially unable to pay and therefore not in willful disobedience of the order is without merit where the court made a specific finding of ability to pay which was supported by competent evidence. 3. Divorce and Alimony 21.5 — willful violation of alimony order — punishment as for contempt — imprisonment until compliance proper Since punishment for willful violation of orders for alimony is as for contempt as provided by G.S. 5-8 and G.S. 5-9 and since the court found that defendant was capable of complying with the court's order of alimony, the court did not exceed its authority in ordering defendant confined for a term of four months in jail or until he purged himself of the contempt violation.

1. Contracts 31 — malicious interference with contract A third party who induces one party to terminate or fail to renew a contract with another may be held liable for malicious interference with the party's contractual rights if the third party acts without justification.<page_number>Page 198</page_number> 2. Contracts 35 — inducing termination of contract — justification — legitimate business interest A person is justified in inducing the termination of a contract of a third party if he does so for a reason reasonably related to a legitimate business interest. 3. Contracts 34 — malicious interference with lease — legitimate business purpose — summary judgment for defendant The trial court properly entered summary judgment for defendant in an action to recover damages for maliciously inducing a realty company to terminate plaintiff's month-to-month lease of office space where defendant presented materials tending to show that he acted for the legitimate purpose of obtaining additional space for his business, plaintiff's contrary contention was not supported by his evidence, there were only latent doubts as to the credibility of defendant's materials, and plaintiff failed to point to specific areas of impeachment or contradictions in defendant's material.

1. Trial 29 — evidence stipulated — action dismissed — appeal proper Where the parties at a pretrial conference stipulated what the evidence most favorable to the plaintiff would be, the court could enter a judgment dismissing the action, and plaintiff could appeal. 2. Assault and Battery 3.1 — smoking cigar in plaintiff's presence — no assault or battery Evidence was insufficient to support plaintiff's claim for assault and battery where it tended to show that defendant smoked cigars in his own office in plaintiff's presence when he knew such smoke was obnoxious to plaintiff, but there was no evidence that plaintiff suffered any physical illness from smelling or inhaling the cigar smoke.

1. Quasi Contracts and Restitution 3 — nonperformance of oral or simple written contract — action in assumpsit The action of assumpsit is an action for the recovery of damages for the nonperformance of an oral or simple written contract; this contract may be express or implied and may be for the payment of money. 2. Quasi Contracts and Restitution 3 — special and general assumpsit Ordinarily, only the count of special assumpsit would lie to prove a right of recovery under a written contract whereas in general assumpsit the court, in its equitable powers, will either construct a contract from the facts proved, if sufficient facts are proved (a promise implied in fact), or will impose a contract upon the facts proved where such a contract may be said to exist as a matter of law (a promise implied in law).<page_number>Page 222</page_number> 3. Quasi Contracts and Restitution 5 — money lent for use in chicken business — defendant not a partner — no promise implied as matter of law In an action to recover a sum of money allegedly lent by plaintiffs to defendant, who was their former daughter-in-law, for use in a chicken business operated by defendant and her husband, there was no promise implied in the evidence as a matter of law where the evidence did not show that defendant and her former husband were partners in the chicken business, and plaintiffs' contention that any indebtedness incurred for the benefit of the business by one partner would jointly and severally obligate the other partner was therefore inapplicable. 4. Quasi Contracts and Restitution 5 — money lent for use in chicken business — no promise to repay by defendant In an action to recover a sum of money allegedly lent by plaintiffs to defendant, their former daughter-in-law, for use in a chicken business operated by defendant and her husband, the facts proved would not support the imposition of a contract based upon a promise implied in fact, since there was no evidence of any affirmative undertaking, either oral or written, on the part of defendant to repay the monies supposedly lent to her and her husband, and evidence of silences by defendant, who was physically present at the time some of the transactions were discussed between defendant's husband and the plaintiffs, would not compel a finding of liability based upon acquiescence. 5. Quasi Contracts and Restitution 5 — money lent for use in chicken business — debts of business assumed in separation agreement — no promise to pay by defendant In an action to recover a sum of money allegedly lent by plaintiffs to defendant, their former daughter-in-law, for use in a chicken business operated by defendant and her former husband, there was no merit to plaintiffs' contention that, because defendant signed a separation agreement in which she agreed to assume the lawful debts of the chicken business, a written contract existed which would require the court to find liability on the part of defendant, since the chicken business was a sole proprietorship, the debts of which would be in personam debts of defendant's former husband, and the only debts which defendant would be assuming under the separation agreement would be those encumbrances secured by the physical assets of the chicken business.

1. Appeal and Error 6.6, 14 — motion to dismiss — interlocutory order — no appeal — time of notice of appeal An order denying a Rule 12 (b)(6) motion to dismiss for failure to state a claim for relief is interlocutory and not appealable. Furthermore, the appellate<page_number>Page 228</page_number> court did not acquire jurisdiction over the proposed appeal where notice of appeal from the order was not given within 10 days as required by G.S. <cross_reference>1-279</cross_reference> (c) and App. R. 3 (c), the time for giving notice of appeal not having been tolled by appellant's motions under Rules 60 (b), 52 (a) and 52 (b) for relief from the order. 2. Appeal and Error 6.7 — order allowing pleading amendment — no appeal An order allowing amendment of a pleading is interlocutory and not appealable. 3. Appeal and Error 6.6; Rules of Civil Procedure 60 — motion for relief from order — inapplicability to interlocutory order A motion under Rule 60 (b) for relief from an order denying a motion to dismiss for failure to state a claim for relief was improper since Rule 60 (b) has no application to interlocutory orders and the motion was not based on any of the grounds enumerated in Rule 60 (b), and the denial of the motion to dismiss was not made appealable by the improper Rule 60 (b) motion or by the court's improvident consideration of the motion. 4. Appeal and Error 6.6; Rules of Civil Procedure 52 — order denying motion to dismiss — findings not required The trial court was not required to make findings of fact and conclusions of law with respect to an unappealable interlocutory order denying a motion to dismiss for failure to state a claim for relief, and the court's entry of findings and conclusions was gratuitous and surplusage and did not render the interlocutory order appealable. G.S. <cross_reference>1A-1</cross_reference>, Rules 52 (a) and (b). 5. Gifts 1.2; Trover and Conversion 3 — stock held by custodian under Gifts to Minors Act — use as collateral for personal loan — sale by bank Plaintiffs stated a claim for relief against defendant bank where they alleged that they were the owners of stock held by a custodian under the N.C. Uniform Gifts to Minors Act, that the bank accepted the stock as security for a personal loan to the custodian, and that the bank thereafter caused the stock to the sold and the proceeds applied to the custodian's debt.

1. Criminal Law 75.7 — statement at service station — no custodial interrogation Petitioner's statement to an officer that he had been driving a car at the time it wrecked, made at a service station in response to a question by the officer, did not result from custodial interrogation where petitioner was not placed under arrest until petitioner admitted he was driving the car and until after the officer observed what he considered to be petitioner's intoxicated condition, and the Miranda warnings were not required. 2. Automobiles 2.4 — refusal to take breathalyzer test — probable cause for arrest for drunk driving A patrolman had probable cause to believe that petitioner had been driving while under the influence of intoxicants, and petitioner's driver's license<page_number>Page 255</page_number> was properly revoked under G.S. <cross_reference>20-16.2</cross_reference> for willfully refusing to submit to a breathalyzer test, where petitioner wrecked his automobile and then went to a nearby service station where he drank three drinks, each of which contained three to four ounces of liquor; petitioner had been drinking heavily the day before the wreck and had a drink at 4:00 p.m. before wrecking his automobile at 7:30 p.m.; and the patrolman saw petitioner at the service station an hour after the wreck and petitioner stated that he was driving the car when it wrecked.

Divorce and Alimony 24.5 — child support — failure to find changed circumstances — increase improper The trial court erred in ordering increased child support payments without making findings as to actual past expenditures for the children, the needs of the children, and defendant's present expenses which would show a substantial change of condition affecting the welfare of the children.

1. Gas 4 — explosion of gas heater — negligence action — summary judgment improper In an action to recover for personal injuries sustained when gas space heaters sold and installed by defendants exploded, the trial court erred in granting defendants' motions for summary judgment, since plaintiffs and defendants offered directly conflicting affidavits as to whether a space heater valve was in the "on" position before the explosion and whether the installation of the heating system was done in compliance with applicable safety codes, and the parties thereby raised a genuine issue of fact as to negligence. 2. Evidence 28.1 — affidavit not based on hearsay Where plaintiff's expert had personal knowledge of defendants' expert's report and affidavit and limited his testimony to an evaluation of them, his affidavit was not based on hearsay, even though he had no personal knowledge of the explosion giving rise to this action, since his affidavit was not tendered to evaluate the cause of the explosion but for the express purpose of evaluating the professional report of defendants' expert. 3. Evidence 28.1; Rules of Civil Procedure 44 — proof of official record — records not properly authenticated Affidavit by one of plaintiffs' witnesses which identified records which the Department of Agriculture collected in its investigation of an explosion of a gas heater was improperly admitted since the records were not properly authenticated, but such error was harmless. G.S. <cross_reference>8-34</cross_reference>; G.S. <cross_reference>1A-1</cross_reference>, Rule 44(a). 4. Evidence 1 — judicial notice of statute Plaintiffs' contention that the trial court committed reversible error in failing to take judicial notice of G.S. 119-49 and the rules promulgated thereunder in granting defendants' motions for summary judgment is without merit since it cannot be concluded that the trial judge did not consider the statute simply because he did not say so in his judgment; moreover, a violation of the statute was not pled by plaintiffs as a specific act of negligence.

1. Divorce and Alimony 18.11, 18.12 — alimony pendente lite — dependency — right to relief — means to subsist — findings sufficient The trial court did not err in determining that plaintiff was entitled to temporary alimony where evidence was sufficient to support the trial court's findings that: (1) plaintiff was a dependent spouse, as her monthly expenses exceeded $2000 while her income was $930 per month, even though plaintiff's net worth was $220,000; (2) plaintiff was prima facie entitled to the relief she demanded, as the evidence tended to show that plaintiff had been subjected to indignities which rendered her life intolerable and defendant's acts constituted cruel or barbarous treatment; and (3) plaintiff had insufficient means whereon to subsist during the prosecution of the case and to defray the necessary expense thereof. 2. Divorce and Alimony 18.13 — alimony pendente lite — amount — statutory factors considered The trial court did not err in its determination of plaintiff's reasonable monthly expenses and in the amount of alimony pendente lite awarded by failing to give due regard to the factors enumerated in G.S. <cross_reference>50-16.5</cross_reference>(a), since it was clear from the judgment that all necessary factors relating to the award of alimony pendente lite were considered, including plaintiff's reasonable living expenses as established by her accustomed standard of living and the estate and earnings of each party.<page_number>Page 335</page_number> 3. Divorce and Alimony 18.14 — alimony pendente lite — award of new automobile Defendant's contention that the trial court erred in concluding that plaintiff was in need of an automobile for general transportation purposes because of the absence of evidence that the 1968 Chevrolet which plaintiff purchased after the separation was inadequate for her needs was without merit since the trial court did not abuse its discretion in concluding that the ten year old automobile was inappropriate for the wife of a wealthy businessman. 4. Divorce and Alimony 18.13 — alimony from date of separation — lump sum payment Defendant's contention that the trial court was without authority to order the lump sum payment of money constituting support from the date of the parties' separation until the date of the award is without merit.

1. Crime Against Nature 1 — consensual fellatio between man and woman The crime against nature includes consensual fellatio between a man and woman.<page_number>Page 386</page_number> 2. Constitutional Law 21 — consensual fellatio in private — prosecution not prohibited by right to privacy The right of privacy does not prohibit the prosecution of unmarried persons for consensual fellatio done in private, and the state, consistent with the Fourteenth Amendment, can classify unmarried persons so as to prohibit fellatio between males and females without forbidding the same acts between married couples. 3. Crime Against Nature 1; Constitutional Law 28 — statute not unconstitutionally vague G.S. <cross_reference>14-177</cross_reference> is not unconstitutionally vague, as persons of ordinary intelligence would conclude fellatio between a man and a woman would be classified as a crime against nature and forbidden by the statute.

1. Uniform Commercial Code 12 — breach of implied warranty of merchantability — showing required An action for breach of implied warranty of merchantability under G.S. <cross_reference>25-2-314</cross_reference> entitles a plaintiff to recover without any proof of negligence on a defendant's part where it is shown that (1) a merchant sold goods, (2) the goods were not "merchantable" at the time of the sale, (3) the plaintiff or his property was injured by such goods, (4) the defect or other condition amounting to a<page_number>Page 477</page_number> breach of the implied warranty of merchantability proximately caused the injury, and (5) the plaintiff so injured gave timely notice to the seller. 2. Uniform Commercial Code 12 — implied warranty of merchantability — failure to warn of dangerous propensities — container and contents A failure to warn of dangerous propensities of both a container and its contents may, in a proper case, provide grounds for an action to recover damages for breach of implied warranty of merchantability under G.S. <cross_reference>25-2-314</cross_reference> (1). 3. Uniform Commercial Code 13 — aerosol deodorant — ignition of alcohol in deodorant — warranty of merchantability Plaintiff's action to recover for injuries received when alcohol in deodorant he had applied to himself from an aerosol can ignited when he lit a cigarette was cognizable under the theory of breach of implied warranty of merchantability although plaintiff alleged no defect in the deodorant itself. 4. Uniform Commercial Code 13 — aerosol deodorant — compliance with federal standards — no merchantability as matter of law An aerosol deodorant was not merchantable as a matter of law because it conformed to certain federally-established standards for flammability. 5. Uniform Commercial Code 12 — use of product in normal way — expectation of freedom from injury — warranty of merchantability Where a product is being used for its intended purposes in a normal way, the expectation of the consumer that so used it will not injure him may reasonably be found to lie within the warranty of fitness for ordinary purposes provided by G.S. <cross_reference>25-2-314</cross_reference> (2)(c). 6. Uniform Commercial Code 13 — ignition of alcohol in aerosol deodorant — inadequate warnings — warranty of merchantability In an action to recover under the implied warranty of merchantability of a can of aerosol deodorant for injuries received when alcohol in deodorant plaintiff had applied to himself ignited when plaintiff lit a cigarette, warnings on the deodorant can that it should not be sprayed toward a flame or exposed or stored at a temperature above 120 degrees F were not sufficient as a matter of law to entitle defendant merchant to summary judgment, since no suggestion was made that the contents of the can might be flammable once they reached their ultimate destination, and the fact that the contents were 92.77% alcohol by volume was not disclosed. Furthermore, plaintiff's allegations and evidence were sufficient to present a question for the jury as to whether the inadequacy of warnings on the aerosol can was the proximate cause of plaintiff's injuries.

1. Uniform Commercial Code 23 — justifiable revocation of acceptance — burden of proof Once goods have been accepted by the buyer, he is thereafter precluded from rejecting them, G.S. <cross_reference>25-2-607</cross_reference> (2), and when he revokes his acceptance, the burden is on him to show that<page_number>Page 497</page_number> such revocation was justifiable. G.S. <cross_reference>25-2-607</cross_reference> (4); G.S. <cross_reference>25-2-711</cross_reference> (1). 2. Uniform Commercial Code 23 — justifiable revocation of acceptance — showing required In order for the buyer to show that his revocation of acceptance of goods was justifiable, he must prove the following four elements: (1) that the goods contained nonconformity that substantially impaired their value to him, G S. <cross_reference>25-2-608</cross_reference> (1); (2) that he either accepted the goods knowing of the nonconformity but reasonably assuming that it would be cured, G.S. <cross_reference>25-2-608</cross_reference> (1)(a), or that he accepted the goods not knowing of the nonconformity due to the difficulty of discovery or reasonable assurances from the seller that the goods were conforming, G.S. <cross_reference>25-2-608</cross_reference> (1)(b); (3) that revocation occurred within a reasonable time after he discovered or should have discovered the defect, G.S. <cross_reference>25-2-608</cross_reference> (2); and (4) that he notified the seller of his revocation, G.S. <cross_reference>25-2-608</cross_reference> (2). 3. Uniform Commercial Code 23 — revocation of acceptance — reasonable time — factors considered In determining whether revocation was made within a reasonable time after the buyer discovered or should have discovered a nonconformity, it is proper to consider all the surrounding circumstances, including the nature of the defect, the difficulty of its discovery, the complexity of the goods involved, and the sophistication of the buyer. 4. Uniform Commercial Code 23 — revocation of acceptance — reasonable time — jury question What is a reasonable time for a buyer to revoke his acceptance is ordinarily a question of fact for the jury. 5. Uniform Commercial Code 24 — justifiable revocation of acceptance — sufficiency of evidence Plaintiff's evidence was sufficient to permit a jury finding that plaintiff justifiably revoked its acceptance of latches ordered from defendant for use in tobacco barns made by plaintiff where it tended to show that defendant offered to manufacture latches made like samples submitted to plaintiff for a certain price; plaintiff initially ordered 500,000 of the latches and later ordered an additional 250,000 latches; the latches were used by plaintiff in manufacturing its tobacco barns and were later found to be unsatisfactory because they would not hold loaded tobacco racks; the latches did not conform to the models submitted by defendant to plaintiff; and plaintiff notified defendant of the problem with the latches within 24 hours after plaintiff discovered that a problem existed. 6. Uniform Commercial Code 22 — revocation of acceptance — damages for "cover" and incidental expenses Plaintiff's evidence was sufficient for the jury to find that, after it revoked its acceptance of latches ordered from defendant, it properly "covered" in procuring substitute latches for those ordered from defendant and that it was entitled to damages for the cost of effecting "cover" as well as incidental and consequential damages it incurred in shipping the latches back to defendant, for amounts paid to farmers for<page_number>Page 498</page_number> the replacement of the latches in tobacco barns made by plaintiff, for labor to install the new latches in the barns, and for transportation of the replacement latches to farmers and dealers. G.S. <cross_reference>25-2-712</cross_reference> (1) and (2).

Negligence 48 — entrance to store — fall — no negligence of defendant In an action to recover for personal injury sustained by plaintiff when she slipped and fell because of defendant's alleged negligence in failing to maintain the entrance to its store in a safe condition, the trial court properly granted defendant's motion for summary judgment where defendant showed that plaintiff could not recover based upon her allegations that defendant allowed water or other foreign substances to accumulate on the floor, that defendant failed to provide adequate lighting at the entrance, that defendant failed to maintain a handrail along the ramp leading into the store, that the presence of the ramp at the entrance to the store was a breach of defendant's duty of care, or that defendant maintained a metal strip along the bottom edge of the ramp.<page_number>Page 552</page_number>

1. Rules of Civil Procedure 8.2 — waiver or release — affirmative defense A defense based on waiver or release is an affirmative defense for which the defendant bears the burden of proof. G.S. <cross_reference>1A-1</cross_reference>, Rule 8 (c). 2. Sales 9; Uniform Commercial Code 12 — action for breach of implied warranties — release of manufacturer — no release of retailer In this action to recover for breach of implied warranties of merchantability and fitness of a mobile home, defendant retailer failed to show that plaintiff's release of the manufacturer operated to release defendant retailer where there was no showing that the manufacturer warranted the mobile home to the retailer and that the retailer passed the same warranty on to plaintiff.<page_number>Page 558</page_number> 3. Uniform Commercial Code 25 — implied warranties of mobile home — repairs — right to damages Although defects in plaintiff's mobile home were repaired by the manufacturer, plaintiff was entitled to recover against the retailer for breach of implied warranties of merchantability and fitness where plaintiff presented evidence that the repairs did not raise the value of the mobile home to the contract price. 4. Sales 9; Uniform Commercial Code 13 — implied warranties of mobile home — payment of loan not waiver Plaintiff did not waive any breach of implied warranties of a mobile home by paying off the loan on the mobile home and releasing the lender, since plaintiff's acceptance of the home obligated her to pay the contract price but did not prohibit her from recovering damages for breach of warranty. Furthermore, plaintiff's action against the lender was based on an allegation of unfair trade practice, and her release of the lender on that claim would not bar plaintiff's action for breach of warranty. 5. Uniform Commercial Code 12 — express warranty by manufacturer — implied warranties by retailer An express warranty by the manufacturer of a mobile home would not necessarily exclude an implied warranty by the retailer. 6. Uniform Commercial Code 26 — breach of implied warranties — damages — sufficiency of complaint Plaintiff's complaint was sufficient to support an award of general damages for breach of implied warranties of merchantability and fitness of a mobile home. 7. Uniform Commercial Code 26 — breach of implied warranties — damages — sufficiency of evidence In an action to recover damages for breach of warranty of a mobile home, plaintiff's evidence was sufficient to show the value of the home if it had been as warranted and the fair market value of the home in its defective condition where plaintiff testified that the contract price was $10,515 and that the home was worth only $6,000 when delivered.

1. Divorce and Alimony 26.3 — foreign custody order — child in N.C. — jurisdiction to modify order A minor child's physical presence in N.C. was sufficient to confer jurisdiction upon the trial court to modify a foreign custody decree. G.S. <cross_reference>50-13.5</cross_reference> (c)(2). 2. Divorce and Alimony 26.2 — foreign child custody order — changed circumstances Plaintiff met his burden of proving a sufficient change of circumstances to warrant a modification of a Colorado custody order entered four years earlier where plaintiff offered evidence that defendant mother's husband beat the child with a belt a few days prior to the hearing, that other incidents of abuse had occurred within the last three years, that the child feared defendant's husband, that the child desired to reside with plaintiff, and that plaintiff had remarried since the custody order was entered. 3. Divorce and Alimony 23.9 — child custody proceeding — character of mother's second husband — evidence admissible — objection waived In an action to modify a Colorado decree giving custody of the parties' child to defendant, the trial court did not err in admitting evidence as to the prior arrest record and abusive behavior of defendant's husband, since such evidence had a direct bearing on the child's environment and welfare, and since the evidence was admissible to impeach the testimony of defendant's husband that the child had received bruises from playing and not from any blows he dealt; moreover, defendant waived any objection she might have had to the evidence where similar evidence was admitted without objection. 4. Divorce and Alimony 25.12 — visitation privileges — denial during residency in Japan — insufficiency of findings The trial court erred in failing to make findings to support its denial of any visitation privileges to defendant during a three year period when she planned to live in Japan.

1. Courts 4 — $6,000,000 in controversy — superior court appropriate forum An action by plaintiff to recover $6,000,000 for defendant's failure to provide permanent financing for a hotel pursuant to the parties' letter agreement was properly brought in superior court. G.S. <cross_reference>7A-243</cross_reference>. 2. Process 14 — foreign corporation — contract completed in N.C. — minimum contacts Where plaintiff alleged that it made a construction loan to a hotel in reliance upon the nonresident defendant's commitment to provide permanent financing, and defendant allegedly refused to perform under the parties' letter agreement, the N.C. courts had personal jurisdiction over defendant, since the borrower accepted the permanent loan commitment in N.C.; the hotel which was the subject of the loan was constructed in N.C.; the loan in this action was arranged by an N.C. mortgage broker; and defendant availed itself of the benefits and protection of N.C. laws not only by the instant contract, but also by a permanent loan commitment for a $2,500.000 loan for an apartment project in Jacksonville, N.C. 3. Rules of Civil Procedure 4, 15 — amendment of summons — no prejudice — amendment of complaint — no responsive pleading filed Pursuant to G.S. <cross_reference>1A-1</cross_reference>, Rule 4 (i), plaintiff could amend its summons so that defendant's name appeared differently, since defendant showed no prejudice resulting therefrom, and pursuant to G.S. <cross_reference>1A-1</cross_reference>, Rule 15 (a), plaintiff could, as a matter of right, amend its complaint so that defendant's name appeared differently, since no responsive pleading had been filed.

1. Professions and Occupations 1 — furnace repairman — representations as to skill — standard of care A defendant who engaged in the business of installing and repairing furnaces represented that it possessed the knowledge, skill and ability that others engaged in the same business ordinarily possess, and when defendant undertook to install a furnace in plaintiff's mobile home, it assumed the duty to exercise reasonable care in the use of its skill and in the application of its knowledge and to exercise its best judgment in the performance of this work, within the limits of the profession. 2. Professions and Occupations 1 — furnace — installation and servicing — no negligence In an action to recover for fire damages to plaintiff's mobile home which allegedly resulted from defendant's negligent installation and servicing of a furnace, plaintiff failed to show that defendant breached any duty (1) by installing the furnace in such a manner that the exhaust outlet of the furnace was not directly below the smokestack so that the exhaust outlet and smokestack were connected with a flue pipe containing two elbows, since there was no evidence that this method of installation was negligent, or (2) by installing new nozzles in the furnace but failing to inspect the flue pipes during its service call, since there was no evidence that a reasonably prudent serviceman confronted with the same or similar circumstances would have done anything other than change the nozzles in the furnace.

1. Constitutional Law 34 — assault by pointing gun — communicating threats — one incident — two offenses — no double jeopardy Defendant was not subjected to double jeopardy where he was charged with communicating threats, a violation of G.S. <cross_reference>14-277.1</cross_reference>, and assault by pointing a gun, a violation of G.S. <cross_reference>14-34</cross_reference>, though the two charges arose out of the same incident, since the elements of the two offenses differed. 2. Assault and Battery 15 — communicating a threat — instructions proper In a prosecution for communicating a threat, the trial court did not err in instructing the jury only that it must find that the threat was communicated orally, and failing to instruct that the threat could be communicated "by any other means," as provided in G.S. <cross_reference>14-277.1</cross_reference> (a)(2).

Vendor and Purchaser 1 — agreement to purchase land — subject to financing clause — reasonable effort — jury question In N.C. a subject to financing clause in an offer to purchase real estate includes the implied promise that the purchaser will act in good faith and make a reasonable effort to secure the financing, and whether a purchaser has made such a reasonable effort is generally a question for the jury and summary judgment is inappropriate.

1. Contracts 27.2 — agreement to assist in obtaining financing — breach — sufficiency of evidence In an action to recover for the cost of various building materials where defendant counterclaimed that plaintiff breached its promise to assist in providing financing for houses constructed by defendant, evidence was sufficient to permit the jury to find that, though plaintiff made some efforts to assist defendant in obtaining financing, plaintiff breached its contract with defendant by failing to make reasonable efforts to assist defendant in obtaining financing. 2. Contracts 27.3 — breach of contract — damages — sufficiency of evidence Evidence was sufficient for the jury to find that defendant suffered damage in the amount of $100,000 as a result of plaintiff's failure to assist defendant in obtaining financing for houses built by defendant where such evidence tended to show that after entering into the contract with plaintiff defendant expended $102,640.74 in constructing a manufacturing plant which defendant was forced to close after being unable to obtain financing.<page_number>Page 744</page_number>

1. Searches and Seizures 7 — search incident to arrest A search incident to a lawful arrest made without a search warrant is valid as an exception to the warrant requirement of the Fourth Amendment. 2. Searches and Seizures 36 — search incident to arrest — delay after arrest In this prosecution for breaking and entering and larceny, a pawn ticket for a stolen television set was properly admitted in evidence as having been seized as an incident of a lawful arrest where defendant was lawfully arrested for an unrelated incident and his wallet was taken from him upon his arrival at the police station; defendant was questioned about the break-in and told an officer that a key to the victim's apartment was in his wallet; the officer obtained the wallet from another room, searched the entire wallet, and found the pawn ticket; and the arrest, questioning and search occurred in less than a one-hour period, since the delay did not vitiate the search as incident to a lawful arrest, and the pawn ticket was admissible even though defendant was being prosecuted for offenses different from that for which he was arrested at the time of the seizure. Furthermore, the pawn ticket was also admissible as the result of an inspection of the wallet for the purpose of inventory of property found on defendant's person.