Opinion
35713.
DECIDED JUNE 16, 1955.
Action on contract. Before Judge Abbot. Louisville City Court. March 22, 1955.
N. J. Smith, for plaintiff in error.
Marshall L. Fountain, contra.
1. The overruling of a demurrer is not a proper ground of a motion for new trial.
2. The trial court did not err in admitting testimony, or in failing to charge the jury, as complained of in special grounds 3 to 6 inclusive of the amended motion for new trial.
3. The general grounds of the motion for new trial, not being argued in the defendant's brief or otherwise, are considered as abandoned.
DECIDED JUNE 16, 1955.
J. A. Stewart filed in the City Court of Louisville, against W. D. Cloud, Jr., d/b/a Cloud Electric Company, a petition, which as amended alleged substantially the following: The plaintiff purchased from the defendant a described television set for a total price of $540.21, of which $89.85 was paid as a down payment and the balance was to be paid in monthly installments of $37.53, as set forth in a promissory note which provided that the title to the property was to remain in the defendant until the note was paid. Upon the purchase of the television set, the defendant told the plaintiff that it would give satisfactory service, that he would give him a one-year warranty with reference to service thereof, and that, if it was not entirely satisfactory and did not give satisfactory service, the plaintiff could return the set and his purchase price would be refunded. Shortly after the installation of the set the service it gave became completely unsatisfactory, and the plaintiff notified the defendant. The defendant went to check the set, and stated that the weather was so bad he could not do anything with it and would have to come back and check it later. The defendant never came back, either to service the set or to take it back, although constant and repeated demands were made upon him as to the unsatisfactory service and the plaintiff's desire to return the set. The plaintiff made the first payment of $37.53 due on the note given to the defendant, and told him at that time that he must be given satisfactory service on the television set in accordance with the representations made, or that the plaintiff would have to return the set. The defendant ignored these repeated requests for service and, instead of giving service or taking the property back, transferred the note given by the plaintiff to the Bank of Wadley, an innocent holder in due course. At the October term, 1952, of the City Court of Louisville, the Bank of Wadley obtained judgment against the plaintiff for $412.83, representing the balance due on the note given for the purchase price of the set. Because of the refusal of the defendant to perform his service contract with plaintiff, there has been a total failure of the consideration of the note, in that the television set is not merchantable and not reasonably suited to the use for which it was designed and intended. The use for which the television set was designed and intended was that of receiving and transmitting various programs from various television channels and flashing them upon the screen of the television set. The television set does not receive and transmit such programs and defeats the implied warranty incident to the purchase of same, and there is a total failure of consideration of the note given for the purchase thereof. And while the article might have some monetary value for the defendant, it is absolutely worthless to the plaintiff. Because of these facts, the plaintiff has been damaged in the sum of $540.21, in that he has had to pay this amount to an innocent purchaser of the note given by the plaintiff for the purchase of the television set, and he is entitled to recover this amount against the defendant. The plaintiff prayed for process and for a judgment in the amount of the full purchase price of the television set.
General and special demurrers were interposed by the defendant to the petition as amended, which were overruled by the trial court.
At the conclusion of the evidence, the jury returned a verdict for the plaintiff in the sum of $333.33, which verdict was made the judgment of the court. The defendant made a motion for new trial on the general grounds, which he later amended to include six special grounds. The trial court denied the motion for new trial, and to this the defendant excepts.
1. Special grounds 1 and 2 of the amended motion for new trial complain that the trial court erred in overruling the defendant's demurrers to the petition as amended, the principal insistence being that the allegations to the effect that the defendant told the plaintiff the television set would give satisfactory service and he would give him a one-year warranty with reference to service thereof constituted an attempt to change by contemporaneous oral agreement the written contract for the purchase of the television set.
The overruling of a demurrer is not a proper ground of a motion for new trial and cannot be considered. Caylor v. Wheat, 210 Ga. 429 (3) ( 80 S.E.2d 688); Green v. Villa Rica Motor Co., 37 Ga. App. 355 (1) ( 140 S.E. 427).
2. Special ground 3 complains that the trial court erred in admitting certain testimony of the plaintiff over the objection that the testimony was an attempt to change by parol testimony a valid written instrument; and special ground 4 complains that the trial court should have charged the rule that parol evidence can never change the terms of a valid written instrument.
The defendant's demurrers, on the ground that the allegations of the petition constituted an effort to change by contemporaneous oral agreement the written contract for the purchase of the television set, having been overruled by the trial court and no valid exception taken thereto, this ruling became the law of the case. Roles v. Edwards, 49 Ga. App. 527 (1) ( 176 S.E. 106); Lunsford v. Howe, 71 Ga. App. 106 (3) ( 30 S.E.2d 207); Carter v. Mansor, 72 Ga. App. 376 ( 33 S.E.2d 718).
"A plaintiff is entitled to prove everything he alleges in a petition upon which he is permitted to go to trial without objection on the part of the defendant." Mayor c. of Macon v. Melton, 115 Ga. 153, 156 ( 41 S.E. 499); Overstreet v. W. T. Rawleigh Co., 75 Ga. App. 483 (2) ( 43 S.E.2d 774).
The testimony complained of was admissible to show the alleged breach of the implied contract, and in the absence of any valid objection to the aforesaid ruling on demurrer, there is no merit in the contention that the trial court erred in failing to charge the general rule, as set forth in Code § 38-501, that "Parol contemporaneous evidence is inadmissible generally to contradict or vary the terms of a valid written instrument."
Special ground 5 complains that the trial court erred in failing to give the jury the legal definition of the word warranty, or to instruct them as to the different kinds of warranties.
The trial court instructed the jury: "The plaintiff contends that when the defendant sold him the television set referred to in the petition, he warranted that it would be reasonably suitable for the purpose intended for a television set, and that the defendant agreed to service the same for one year. . . The defendant denies these contentions, contending that he made no such warranty or agreement, and that the television was reasonably suitable for the purpose for which a television set was intended and that the defendant did service same to the extent that he agreed to do so."
Special ground 6 complains that the charge as a whole was too short and incomplete to enable the jury to understand the issues of facts to be determined by them or the rules of law applicable thereto.
The charge of the trial court, when considered in its entirety, embraced the general principles of law applicable to the facts of the case; and the extracts upon which error is assigned in special grounds 5 and 6 were not erroneous for any reason set forth in the assignments of error. If any amplification of the general principles which the charge contained had been desired, they should have been made the subject of appropriate and timely written requests. Tabor v. Macon Railway c. Co., 129 Ga. 417 ( 59 S.E. 225); Swinson v. Jones, 74 Ga. App. 109 (4) ( 38 S.E.2d 878).
3. The general grounds, not being argued in the defendant's brief or otherwise, are considered as abandoned.
No error of law appearing, the trial court did not err in denying the defendant's amended motion for new trial.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.