The opinion
Judge Hedrick
dissenting.
In my opinion the builder-vendor’s implied warranty of habitability, Hartley v. Ballou, 286 N.C. 51 , 209 S.E. 2d 776 (1974); Lyon v. Ward, 28 N.C. App. 446 , 221 S.E. 2d 727 (1976), does not apply to an air-conditioning unit that was installed in a house at the time of construction of the house four-and-one-half years *30 before that house was sold to the plaintiffs. Lyon , cited by plaintiffs and relied on by the majority in its decision, is clearly factually distinguishable. Moreover, I am particularly disturbed by the footnote in the majority decision suggesting that an implied warranty of habitability might extend as well to subsequent purchasers. I vote to reverse the order denying the defendant’s motions for a directed verdict and for judgment notwithstanding the verdict.
The majority has not discussed, and apparently has not considered, defendant’s assignment of error relating to damages. If the trial court did not err in denying defendant’s motions for a directed verdict and judgment notwithstanding the verdict, in my opinion, the defendant is entitled to a new trial because the record discloses a manifest miscarriage of justice with respect to the issue of damages. Under the circumstances of this case it is clear to me that the cost of replacing a three-and-one-half ton air conditioning unit, which is in no way defective and is no more than four-and-one-half years old, with a new four ton unit is not the correct measure of damages.