Opinion
36779, 36789.
DECIDED JANUARY 31, 1958.
Trover. Fulton Civil Court. Before Judge Etheridge. April 24, 1957.
Thomas E. Moran, for plaintiff in error.
Joan Larsen, contra.
1. Where the assignee of a purchase-money retention-title contract brings trover against the purchaser in possession of the personal property which is the subject matter of the contract, such defendant purchaser may recoup against the plaintiff because of a failure of consideration resulting from a breach of implied warranty on the part of the original vendor. Accordingly, the amendments to the answer seeking damages for failure of consideration were properly allowed.
2. Where, however, on the trial, the defendant elects to stand on the contract, he is bound by all its provisions, including a provision that the vendor expressly refuses to make any warranties except warranty of title and freedom from encumbrances. The plaintiff may prove such contract provision as a complete defense against the plea of failure of consideration.
3. The cross-bill of exceptions contains no sufficient assignment of error and is accordingly dismissed.
DECIDED JANUARY 31, 1958.
Columbia Loan Company filed a bail-trover action in the Civil Court of Fulton County against Eddie Parks for a 1948 Cadillac to which plaintiff claimed title "as evidenced by that conditional-sales contract dated March 3, 1956" which was not attached to the petition. The defendant in his answer admitted possession and denied title in the plaintiff. In his first amendment he pleaded a setoff as follows: that he traded to Gann's used Cars, the original vendor, a Buick automobile of the value of $400, that he has paid the plaintiff the sum of $300, and has accordingly been damaged in the sum of $700 plus reasonable hire in the amount of $50; that the plaintiff's assignor warranted the Cadillac to be in good mechanical condition capable of performing the normal functions reasonably to be expected of a family and pleasure automobile, but that it had a defective motor which caused the car to overheat and use excessive amounts of oil, and thus failed in the purposes for which the defendant purchased it. In his second amendment the defendant alleges that the plaintiff is entitled to deduct from the amounts owing the defendant the sum of $50 representing reasonable hire and depreciation of the Cadillac. Motions to dismiss and disallow these amendments were denied, and error is assigned on these judgments. The case proceeded to trial; the plaintiff proved the conditional-sale contract and that the defendant had not made payments according to its terms, and that a balance of $255 was owing under the contract. The defendant testified that the value of the Buick traded in by him on the Cadillac was $400; that Mr. Gann told him he would sell the Cadillac for the Buick and $200; that he does not understand contracts and signed this contract, and just after he signed it he was told that he would have to pay $520, of which $65 represented repairs, payable at $10 per week for 52 weeks. The defendant made 17 payments between April 11, 1956, and October 29, 1956, and then quit his job with Gann's Used Cars and failed to make any more payments. The conditional-sale contract shows the trade-in price of the Buick to be $150, and also contains a provision as follows: "The vendor does not warrant said property and makes no representations concerning same, except that the title to same is in vendor and free from all encumbrances."
At the conclusion of the evidence the court, hearing the case without the intervention of a jury, ruled that the plaintiff was entitled to recover from the defendant $255 principal balance and $50 hire, or a total of $305, and that the defendant having sustained his plea for partial failure of consideration is entitled to a setoff in the sum of $320, and accordingly entered judgment in the amount of $15 in favor of the defendant. The plaintiff in its bill of exceptions assigns error on the denial of its motion for new trial and on the demurrer rulings. The defendant in a cross-bill of exceptions assigns error on a part of the judgment and on the exclusion of certain evidence.
This court requested instructions of the Supreme Court of Georgia in this case. The answers to its certified questions which appear in Columbia Loan Co., Inc. v. Parks, 213 Ga. 723 ( 101 S.E.2d 720), are not repeated here verbatim but may be found in the cited case.
1. The motions to disallow and dismiss the amendments which alleged a setoff because of a failure of consideration were properly denied. Under the provisions of Code § 107-102, where the assignee of a purchase-money retention-title contract and notes elects to rescind the contract and bring trover against the vendee upon the latter's failure to make the instalment payments, the defendant may plead and prove a failure of consideration as to the property purchased, and a partial failure of consideration will constitute a defense pro tanto to the action. If the first amendment was subject to be stricken because the defendant did not allow for hire and depreciation of the Cadillac automobile while in his possession, this defect was cured by the second amendment which stated in effect that the plaintiff would be entitled to credit for $50 as reasonable hire and depreciation. See Standard Motors Finance Co. v. O'Neal, 35 Ga. App. 727 (3) ( 134 S.E. 843).
2. Where parties enter into a contract of conditional sale of personalty which contains the stipulation as follows: "The vendor does not warrant said property and makes no representations concerning the same except that title to the same is in vendor and free from all encumbrances," "such stipulation amounts to an express refusal by the vendor to warrant the property except as to title, and the vendee cannot contradict the terms thereof by pleading a breach of the other ordinary implied warranties of the law or of express warranties and representations made by the vendor prior to or at the time of the sale as to the condition of the property sold." Skellie v. Gulf Finance Co., 88 Ga. App. 18 (2) ( 75 S.E.2d 842); Hoffman v. Franklin Motor Car Co., 32 Ga. App. 229 (3) ( 122 S.E. 896). This court certified to the Supreme Court ( Columbia Loan Co., Inc. v. Parks, 213 Ga. 723, supra) the question of whether, where the plaintiff by bringing its trover action elects to rescind the contract, and the defendant under Code § 107-102 elects to plead a failure of consideration, the plaintiff may rely upon the express refusal of the vendor contained in the contract sale to warrant the soundness of the chattel. The Supreme Court replied in the affirmative, and added: (head-note 2) "The confusion in the cited authorities on these questions seems to arise from a failure in some instances to recognize that when a trover suit is brought based upon a retention-of-title contract of sale, this amounts to a rescission of the contract in so far as the plaintiff is concerned, that the defendant or purchaser may elect to treat the proceeding as a rescission and recover what he has paid on the purchase price less hire or he may elect to stand on the contract, in which event the above quoted Code section [§ 107-102] is applicable." That the defendant here elected to stand on the contract, and neither accepted the rescission elected by the plaintiff nor himself sought a rescission based on fraudulent misrepresentation, is demonstrated by the amendment to the answer and the prayers that "defendant be awarded the sum of $700 as damages for breach of contract by the assignor of the plaintiff [and] a sum sufficient to compensate for the defects of the said warranted automobile," and by the fact that there was no disclaimer. The trial court so construed the answer and found for the defendant the sum of $320 for "partial failure of consideration in the original contract." In view of the fact that the defendant failed to prove his allegation that the vendor had warranted the soundness of the property, a judgment in his favor based on failure of consideration was not supported by the evidence.
3. The cross-bill of exceptions assigns error on a part of the judgment in the language of the general grounds of a motion for new trial, and also assigns error on the exclusion of evidence. It also recites, however, that the defendant filed a motion for new trial on the general grounds only. The disposition of this motion is not shown. Either it is still pending, or, if denied, no exceptions were taken by the defendant to that judgment. Accordingly, no question for decision is presented on the general grounds. As to the exclusion of evidence, it is stated in Crawford v. Wilson, 142 Ga. 734, 739 ( 83 S.E. 667): "There are . . . rulings made pending the trial which enter into and may affect the verdict, such as rulings on the admission or rejection of evidence . . . If a motion for a new trial is made, such rulings would furnish, if erroneous, additional reasons for granting a new trial, and they should be included in the motion if relied on."
There is accordingly no sufficient assignment of error in the cross-bill of exceptions, for which reason it is dismissed. Young v. Freeman, 153 Ga. 827 (8) ( 113 S.E. 204).
The trial court erred in denying the motion for new trial.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.