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Alberti v. Manufactured Homes Inc.9/5/1991
litigants prior to imposing liability, is being unduly vitiated.
Under the peculiar facts of this case, however, this extension arguably is justified. Brigadier Homes knowingly made an explicit warranty to its retailer, specifically so that the retailer would pass it on to the ultimate purchaser to serve as a sales inducement. It would be inequitable to allow Brigadier Homes to avoid liability under such circumstances. The privity requirement between remote buyers and manufacturers based on oral representations given by manufacturers should be abrogated only when such representations are explicit and are clearly intended to be passed on to prospective purchasers to induce the ultimate sale.
Finally, I dissent from that portion of the decision that remands this case for a new trial only on the question of damages, with instructions that whatever amount the jury returns be automatically trebled. The question of liability, in my view, is here inextricably intertwined with the question of damages, causing prejudice to defendant if only the damages issue is to be relitigated. Housing, Inc. v. Weaver, 305 N.C. 428, 290 S.E.2d 642 (1982). The issues presented to the jury at trial, and indeed defendant's entire litigation strategy, were the result of intensive negotiations occurring at the precharge conference. As the majority has noted, the correct statutory measure of damages was not followed by the trial court. It is obvious, however, from the record before this Court that the parties and the trial judge agreed, with regard to the breach of warranty issue, that the amount of the damages would be the cost of the repairs (generously rounded from $358.00 to $500.00), trebled. That explains why only one issue, that is, whether the misrepresentation was made by the manufacturer, was submitted to the jury. The majority's remand for reconsideration of the damages issue alone, with instructions that the amount returned by the jury be trebled, is inequitable under the peculiar facts of this case.
The case should be remanded to be retried upon the issues customarily submitted in Chapter 75 actions of this type as well as the damages issue. I vote to remand for a new trial on all issues.
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