Opinion
39693.
DECIDED SEPTEMBER 27, 1962.
Breach of warranty. Floyd Superior Court. Before Judge Hicks.
E. J. Clower, for plaintiff in error.
Parker, Clary Kent, Horace T. Clary, contra.
1-4. These special grounds show no error.
5. It is error for the court to omit from the charge any rule or measure by which a verdict for damages for an alleged breach of warranty may be made.
DECIDED SEPTEMBER 27, 1962.
Collier sued Davis-Pickett Chevrolet, Inc., alleging that he had purchased from that company a used automobile, represented to be in good mechanical condition; that in the sales contract seller had given him a "50-50 guarantee on motor, rear end and transmission — 30 days or 1000 miles, whichever comes first"; that within the 30-day period the motor began to give trouble and seller made certain repairs for which plaintiff paid half of the cost, but that the trouble continued; that he discovered a crack some 18 inches long in the block that had been welded — a fact known to the seller at the time of the sale but which was not disclosed to the purchaser — and that seller did install another block when complaint of the crack was made, but that the motor still gave trouble, ran hot, etc.; that seller refused to make any further repairs, making it necessary for purchaser to obtain repairs elsewhere. The jury returned a verdict for the cost of the last repairs. A motion for new trial, duly amended, was overruled, and error is assigned.
1. There is no merit in the general grounds of the motion for new trial.
2. (a) In ground 4 error is assigned on a portion of the charge dealing with implied warranties in connection with the sale of personalty. Since it was a contention of the seller here that the exchange of a motor block was made after expiration of the warranty period, as contained in the express warranty, under circumstances related in the statement of facts above, and purchaser contended that the motor did not perform properly because of the condition of the substituted block, there was no error in charging on the matter of implied warranties.
(b) In grounds 5 and 6 error is assigned on the refusal of the court to charge written requests to the effect that implied warranties are excluded by an express warranty. The requests were not adjusted to the facts and contentions of the parties in all respects, and were properly denied.
3. (a) Complaint is made of the admission of evidence, over objection, that certain repair work had to be done on the substituted cylinder block after the expiration of the period of the express warranty. Under the facts here we find no error.
(b) In admitting the evidence referred to above, the court remarked, "It is the same trouble that originated within the 30-day period." Complaint is made that in so doing he expressed an opinion, prohibited under Code § 81-1104. No ruling is here made on this assignment, since a new trial must be had for other reasons, and this will not likely happen again.
4. Error is assigned upon the failure of the court to reopen the case for the admission of other evidence for the purpose of correcting an error after the case had been closed and arguments made to the jury by counsel. The matter of reopening the case under these circumstances was within the sound discretion of the court. We find nothing to indicate any abuse of discretion in the denial of the motion.
5. In ground 7 error is assigned upon the failure of the court to charge, without request, a rule or measure of damages by which the jury might arrive at its verdict in assessing damages for the alleged breach of warranty. This ground is meritorious, and requires the grant of a new trial. Mayor c. of Washington v. Harris, 144 Ga. 102 (2) ( 86 S.E. 220); Towson v. Horn, 160 Ga. 697 (3) ( 128 S.E. 801); Brown v. Wells, 161 Ga. 413 (2) ( 131 S.E. 159); City of Barnesville v. Parham, 44 Ga. App. 151 (5) ( 160 S.E. 879); Southeastern Greyhound Lines v. Hancock, 71 Ga. App. 471 (5) ( 31 S.E.2d 59); Homasote Co. v. Stanley, 104 Ga. App. 636 (3) ( 122 S.E.2d 523); Petroleum Carrier Corp. v. Polk, 106 Ga. App. 650. Judgment reversed. Carlisle, P. J., and Russell, J., concur.
"Where an automobile is sold with warranty of quality, and the automobile delivered by the seller does not correspond with the warranty, the correct measure of damages is the difference between the contract price and the actual value of the automobile when and where delivered." Ceylona Co. v. Selden Truck Sales Co., 23 Ga. App. 275 (1) ( 97 S.E. 882). However, if the terms of the warranty contemplate that repairs are to be made for the elimination of defects, as here ("50-50 guarantee on motor, etc."), the reasonable cost of making repairs may be a proper measure, particularly when it is contended by the purchaser that the seller had refused to make the necessary repairs and that he had secured them elsewhere. Cochran v. Jones, 85 Ga. 678 (2) ( 11 S.E. 811); National Sheet Metal Co. v. McKenzie, 62 Ga. App. 292 ( 8 S.E.2d 93); Camilla Cotton Oil Co. v. Spencer Kellogg Sons, 257 F.2d 162, 167 (5, 6). And see Southeastern Exp. Co. v. Chambers, 33 Ga. App. 44 (1) ( 125 S.E. 507); Lamon v. Perry, 33 Ga. App. 248, 249 (1) ( 125 S.E. 907); O'Donnelly v. Stapler, 34 Ga. App. 637 (5) ( 131 S.E. 91); Padgett v. Williams, 82 Ga. App. 509 (1) ( 61 S.E.2d 676); Leggett v. Brewton, 104 Ga. App. 580 (2) ( 122 S.E.2d 469). Cf. Dasher v. International Harvester Co., 42 Ga. App. 130 (3) ( 155 S.E. 211).