Opinion
36167.
DECIDED APRIL 10, 1956.
Action on note. Before Judge Humphrey. Toombs Superior Court. January 14, 1956.
Jackson Graham, for plaintiff in error.
Homer S. Durden, Jr., Wm. T. Darby, Hugh M. Dorsey, Jr., contra.
The court did not err in denying the motion for a new trial for any of the reasons assigned.
DECIDED APRIL 10, 1956.
This case originated in the Superior Court of Toombs County, wherein John Deere Plow Company (hereinafter called the plaintiff) brought suit against Ross P. Bowen (hereinafter called the defendant) based upon a note given by the defendant to McArthur Tractor Implement Company. The note was transferred to the plaintiff by the said McArthur Tractor Implement Company. The trial of the case resulted in a judgment and verdict in favor of the plaintiff. The defendant filed a motion for new trial, which was later amended. From the judgment denying this motion the case is before this court for review.
The petition alleges substantially that the note was given for a valuable consideration; that it is past due; that no amount has been paid on the note; that the plaintiff is the lawful holder of the said note, because of its transfer to the plaintiff, as hereinabove set out; that notice of intention to sue was given to the defendant more than 10 days before the filing of the suit; that the defendant failed and refused to pay the note. Prayer is made for the principal and interest claimed to be owing on the said note, as well as for attorneys' fees.
The defendant filed an answer to the petition, denying that the note had been given for a valuable consideration, denying that the plaintiff is the lawful owner of the note, and denying that the defendant owes the plaintiff the principal amount of $876.67 plus interest and attorneys' fees (this being the amount for which the plaintiff prayed and the amount covered by the verdict and judgment).
Robert S. Jordan testified for the plaintiff that he was an employee of the plaintiff at the time the machinery was bought and the note was executed for the balance above the cash paid at the time of the purchase on October 3, 1952; that $595.86 was to be paid October 1, 1953, and $280.81 was to be paid October 3, 1954; that the note was transferred to John Deere Plow Company on November 19, 1952; that nothing has been paid on the note; that no complaint was ever made by the defendant concerning the mechanical imperfections of the machinery until after notice of suit was filed; that the first complaint received was when the plaintiff received the answer of the defendant to the suit filed; that the defendant left the machinery on a vacant lot near the place of business of McArthur Tractor Implement Company. A letter dated November 23, 1953, addressed to the plaintiff and received in the office of the plaintiff on November 25, 1953 (the first payment on the note having become due on October 1, 1953), was tendered in evidence by the plaintiff, and no objection to its admission was made by counsel for the defendant. The body of the letter reads: "After a thorough try I find it impossible to make the payment in the amount of $595.86 due October 1st, 1953, on my 226 corn picker. During the last days of September we had an enormous amount of rain which kept the fields boggy through all of October which kept me from operating the machine. I was depending on earnings from custom work making the payment for me. I used all available money or about $900.00 getting trailer and conveyor ready for a good season. Then I was unable to do any custom work at all. This picker is in perfect condition. It has only picked about 150 bushels of corn. I hate to fall down on my contract and not be able to keep the machine and lose the money I have in it but there is no other choice. I will bring the machine to McArthur Tractor Company in Lyons at once. Yours truly, Ross P. Bowen." (Italics ours.)
B. R. McLendon testified for the defendant substantially as follows: That he operated part of a certain farm, and the defendant operated part of the same farm; that he had an understanding that the defendant was to use the machinery in question to pick corn for the witness; that the corn picker did not do a good job; and that the defendant did not pick the corn for the witness.
Burnell Cone, another witness for the defendant, testified that the defendant by agreement started to pick the corn of the witness with the corn picker; but that the defendant did not finish gathering the corn because the picker would break the ears of corn, would miss getting ears of corn, and left a lot of shelled corn in the field.
Douglas Gay, another witness for the defendant, testified substantially that he was the operator of the corn picker; that he operated the picker for about four weeks, attempting to gather about 150 acres of corn; that the picker was not satisfactory because it shelled too much of the corn; that it would choke up; and that he (the operator) would have to "get down and unclog it." He testified further that the picker would pick the corn pretty well when the stalks were standing, but when the stalks were bent the picker would leave ears of corn on the stalk; that the picker would leave about 30% of the corn ungathered.
J. W. McArthur, another witness for the defendant, testified substantially that he operated the McArthur Tractor Implement Company, the firm from which the defendant bought the corn picker; that he was a dealer of the John Deere Plow Company; that the defendant made a complaint about the corn picker; that he and a mechanic went "out there to try to get the machine operating"; that they worked on the machine for several days; that a field man from John Deere Plow Company came around, and the witness took the field man to see the corn picker, and the field man worked on it, but the defendant still complained that it would not work. The witness testified that the defendant told him, before the corn picker was returned, that the defendant did not want the corn picker, and that the defendant was not going to use it any longer. On cross-examination the same witness testified that he could not remember whether or not the defendant told the witness that the defendant could not pay for the corn picker or was going to return it; that the witness did not agree for the defendant to return the machinery; that the defendant traded tractors with the witness, and at that time the defendant and the witness agreed to make the trade of the tractors upon the condition that the witness would get a conversion kit to rig up a different drive mechanism so that the picker could be used with the tractor which the defendant traded for; that the witness did not remember any complaint being made at that time regarding the picker; but that he would recall it if there had been a complaint at that time. The witness further testified on cross-examination that the field man for John Deere Plow Company was neither an engineer nor a mechanic; that the field man was not sent from the John Deere Plow Company factory, and the witness did not recall that any person was sent by the factory to check up on the corn picker; that the picker which the witness sold to the defendant was the last picker of that model sold by the witness; that John Deere Plow Company put a different model picker on the market thereafter, which the witness sold for John Deere Plow Company; and that the witness had no trouble with the new model picker.
Ross P. Bowen, the defendant, testified substantially as to the amount he agreed to pay for the equipment purchased from McArthur Tractor Implement Company and how much he paid down. He testified that he signed notes to pay the balance due on the equipment; that a man was sent from McArthur Tractor Implement Company to work on the machinery, and the field man came and worked on it also; that after this work was done, the picker would do a little better sometimes and then it would do worse; that the picker never got to the point where it would work in a satisfactory manner; that Mr. McArthur told the witness that John Deere Plow Company said that the picker would do the job, and that they would send a man down before the next season of corn picking and get the picker fixed so it would work; that the man never did come, and after considerable trouble the defendant finally "just shut it down and quit; I told Mr. McArthur about it and brought it back up there and put it on his lot; that was the next corn picking season after I bought it."
Nothing new was added to this testimony on cross-examination of the defendant. On re-direct examination the defendant testified that the letter which he wrote stating that the picker was in perfect condition was intended to show that the picker was in the same condition as when the defendant contracted to purchase it. He testified that the picker was not in perfect condition to gather corn.
After both sides rested, the court stated to the jury as follows: "In this case on the back of the order that Mr. Brown signed there was a condition or terms when he accepted the corn picker and he is bound by those conditions and terms and one of them was that if he used the corn picker a certain number of days he must give written notice, if it is not in working order, to the seller. That is in fine print and either Mr. Bowen hadn't read that, or in speaking to Mr. McArthur about it he thought that was in compliance with it. But under strict instructions I think the law requires the court to follow on those written contracts or stipulations. The court thinks that only one verdict would stand in the case and that's a verdict for the plaintiff. I direct that you find for the plaintiff. I believe they have admitted the attorney's fees in their answer, so if he is liable he is liable for the attorney's fees. Prepare a judgment, Mr. Durden, and get one of the gentlemen to sign it."
We have set out all of the evidence which is material to the determination of this case. The terms of the sales order signed in triplicate by the defendant, bearing the same date as the note signed by the defendant, show that the defendant agreed to give the machine a fair trial as soon as possible after receiving the machine; and that, if the machine failed to fulfill the warranties given by the company (set out in the sales order), then the purchaser is "to give the seller written notice within three days after said trial, stating the nature of the trouble, and allow a reasonable time for the seller to send a competent man to examine it . . . and remedy the trouble." This the purchaser failed to do.
We are fully cognizant that it is never error to refuse to direct a verdict, but under the evidence, submitted to the jury, no verdict was possible other than a verdict in favor of the plaintiff. The statement of the judge in directing a verdict went to the general grounds, and under the evidence and the whole record it did not change the inevitable outcome of the case, and hence was not harmful to the cause of the defendant. The defendant did not meet the terms of the contract of sale (sales order) which he signed. He did not complain in the manner set out in the sales order, a vital part of the whole transaction. All this is part of the record, the sales order and the note being set out in the record as exhibits.
Nor is the contract unilateral, as in Lowery Lock Co. v. Wright, 154 Ga. 867 (1e) ( 115 S.E. 801), and Mallet Nutt v. Watkins, 132 Ga. 700 ( 64 S.E. 999, 131 Am. St. R. 226).
It is contended that the evidence showed a waiver by McArthur Tractor Implement Company of the terms and conditions in the warranty agreement printed on the back of the sales order. Counsel cites Gray Lumber Co. v. Harris, 8 Ga. App. 70 ( 68 S.E. 749), in support of this contention. In the case cited there was some evidence to show waiver, but we do not consider that any element of evidence in the instant case indicates waiver. We have read and considered all other cases cited by counsel for the defendant, i.e.: Kennedy v. Manry, 6 Ga. App. 816 ( 66 S.E. 29); Barkley v. American Nat. Ins. Co., 36 Ga. App. 447 (1) ( 136 S.E. 803); Stapleton v. Dismukes, 43 Ga. App. 611, 621 ( 159 S.E. 768); Loftis v. Metropolitan Casualty Ins. Co. of New York, 46 Ga. App. 438, 442 ( 167 S.E. 729); Sentinel Fire Ins. Co. v. McRoberts, 50 Ga. App. 732, 738 ( 179 S.E. 256); City of Albany v. Mitchell, 81 Ga. App. 408 (1) ( 59 S.E.2d 37); and Philadelphia Fire c. Ins. Co. v. Burroughs, 176 Ga. 260, 262 ( 168 S.E. 36). We do not consider that these cases are authority for a reversal of the instant case, since the pleading and evidence differ materially from those of the instant case.
The court did not err in denying the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.