Opinion
34783, 34784.
DECIDED NOVEMBER 24, 1953.
Action on contract. Before Judge Lowe. Fulton Civil Court. May 28, 1953.
Fisher Phillips, T. Charles Allen, for plaintiff in error.
Sam G. Dettelbach, contra.
1. Where the plaintiff in error in its brief in this court expressly states that it does not insist upon the general grounds of its motion for a new trial, this court will treat them as having been expressly abandoned.
2. Where the evidence does not demand a finding by the jury that the custom of a business, generally recognized in a given city or locality, is known to a nonresident party to the contract, such custom does not, by implication, become a part of the contract between a citizen of Georgia and the nonresident. The trial court properly gave such principle of law in charge to the jury.
3. Where a written contract contained express warranties and agreements, the law will not imply that the parties agreed to the contrary.
4. The Federal Register of September 7, 1946, containing a statement as to the meaning of the term "factory second" as to the O. P. A., and as to motor vehicle and tire dealers, was not admissible in the present action, which was instituted in 1953, as evidence to show that the meaning of the term "seconds" was as contended by the plaintiff.
DECIDED NOVEMBER 24, 1953.
Lander Motors, Inc., a Georgia corporation (hereinafter called the plaintiff), brought suit against Lee Tire Rubber Company of New York (hereinafter called the defendant), a corporation duly licensed and authorized to do business in Fulton County, Georgia, in which the following facts were substantially set forth: On February 7, 1951, and on the next day, February 8, 1951, the plaintiff purchased from the defendant 237 passenger tires; on said two dates, the defendant caused such tires to be delivered to the plaintiff; the plaintiff paid for such passenger tires the agreed price of $3,362.38; the contract of sale contained an express warranty by the defendant that such tires were of that grade, common to the tire business, known as "seconds"; a copy of the contract was attached to the petition as Exhibit "A"; said tires were not of the grade known as "seconds", but were of a grade known as "scrap tires," which grade is greatly inferior to the grade known as "seconds"; the difference between the types or grades of passenger tires ordered and the type or grade received could not have been discovered by inspection, and was a latent defect; upon discovering the grade of tires received, the plaintiff notified the defendant of the difference between the two types; the plaintiff was ready, willing, and able to tender the scrap tires back to the defendant and receive a refund of the purchase price; the defendant refused to accept such tires or to return the purchase price, and has continued to refuse to indemnify the plaintiff for its damages in that behalf; the reasonable value of the scrap tires delivered to the plaintiff was $296.25; and as a result of the breach of the express warranty made by the defendant, the plaintiff has been damaged in the sum of $3,056.13, being the difference between the purchase price of the "seconds" ordered and the value of the "scrap" tires received. The plaintiff prayed for judgment against the defendant in the sum of $3,056.13 plus costs of court.
In due time, the defendant company filed its plea and answer to the petition and set out substantially the following: The plaintiff did purchase from it on said dates such passenger tires called "seconds," but there was noted on the invoice therefor this statement: "This merchandise is not guaranteed. All sales final. No returns." The defendant denied that the contract attached to the petition contained an express warranty by it that the tires so sold and delivered to the plaintiff were of that grade, common to the tire business, known as "seconds." The defendant denied that the tires shipped to the plaintiff were not "seconds" and were of an inferior grade known as "scrap tires." The defendant denied that the difference between the type of passenger tires ordered from it by the plaintiff and the type of tires received by the plaintiff from it could not have been discovered by inspection, and was a latent defect. The defendant denied receiving any notice from the plaintiff notifying it of the difference between the type of tire ordered and the type of tire received. For want of sufficient information the defendant neither admitted nor denied the allegation that the plaintiff was ready, willing, and able to tender the scrap tires back to the defendant and receive a refund of the purchase price; and also it could neither admit nor deny that the reasonable value of the tires delivered to the plaintiff was $296.25. The defendant admitted that it had refused to accept the tires or return the purchase price to the plaintiff and that it has continued to refuse to indemnify the plaintiff for its damages in that behalf. The defendant denied that, by reason of its breach of any express warranty made by it, the plaintiff had been damaged in the sum for which suit is brought. Further answering, the defendant shows that there was no express warranty or other warranty whatever, but that the invoice and delivery slips were clearly marked both with the notation "seconds," and "This merchandise is not guaranteed. All sales final. No returns," which merchandise was accepted by the plaintiff under such conditions, and such notation was sufficient to and did put the plaintiff on notice as to the quality of merchandise purchased. For further plea and answer, the defendant shows that, before completing the purchases on said dates (February 7 and 8, 1951), the plaintiff had in its possession some portion of the merchandise, and did see that the merchandise was not made by nor was the product of the defendant company, but was the merchandise of the Pacific Tire Company.
The exhibit attached to the petition consists of two papers marked "invoice", dated February 2, 1951, and February 8, 1951, respectively, and shows that on such dates the defendant sold to the plaintiff certain passenger tires designated "seconds" for $13.74 each, and that same were delivered to "North Ave. Mr. Geo. Graff," and on the lower portion of the invoice of February 8, 1951, numbered 2837, there was in writing, "Net. No discount allowed on this merchandise," and there was printed "This merchandise is not guaranteed. All sales are final. No returns," and that on the invoice of February 7, 1951, number 2820, there was in writing this notation: "This merchandise is not guaranteed. All sales final. No returns."
The plaintiff company amended its petition by adding the following additional paragraph: "In the tire industry, `seconds' are tires which contain slight defects which, while not substantially affecting the usefulness or life of the tires, result in such tires failing to meet the specifications of the manufacturer. `Scrap tires' are tires which because of some defect in the manufacturing process, are unfit for use as automobile tires." By striking from the petition the allegations: "That the aforementioned passenger tires were not of the grade known as `seconds,' but were of the grade known as `scrap tires,' which grade is greatly inferior to that grade known as `seconds'," it was alleged simply that "the aforementioned passenger tires were not of the grade known as `seconds', but were of the grade known as `scrap tires' . . . because said tires have a separation of the tread from the carcass, this condition not being observable by a visual examination of the tires." By amendment, the plaintiff prayed that it have judgment against the defendant for $3,056.13, plus costs of court.
The defendant company on May 23, 1952, filed its general and special demurrers to the original petition, and set out that the petition failed to state a cause of action against it. The defendant demurred specially to paragraph 5 of the petition because the alleged contract referred to therein was not attached to the petition or incorporated in any portion thereof. The defendant specially demurred to and moved to strike paragraph 6 of the petition on the ground that said paragraph refers to a grade of tires known as "scrap tires," and there is no explanation, description, or definition of the said tires nor of "scrap tires," and unless the petition is amended in this particular, such paragraph should be stricken. The defendant further specially demurred to paragraph 6 on the ground that neither in said paragraph nor elsewhere in the petition is there set forth what defect, if any, or what apparent defect was in the tires alleged to have been purchased by plaintiff, whereby they became "scrap tires," and without such explanation the allegations of this paragraph amount to a conclusion and should be stricken. The defendant specially demurred to paragraph 7 because it fails to allege that this defendant had knowledge or was lawfully charged with knowledge of any defect or fault referred to, and without such allegation this paragraph should be stricken. The defendant specially demurred to paragraph 11 because same is a conclusion, in that nowhere in such paragraph or at any place in the petition is there set out any basis to sustain the allegation of reasonable value being $296.25, and said paragraph ought to be stricken. The defendant specially demurred to the first line of paragraph 12 because same refers to and is based on an "express warranty," and nowhere in this paragraph nor in said petition is such "express warranty" set forth, and this portion of paragraph 12 should be stricken. Said defendant then further demurred specially to lines 2, 3, 4, and 5 of paragraph 12 of the petition, upon the ground that the allegations embraced in these lines are based upon a conclusion, "unexplained in paragraph 11 of the petition and the said lines, 2, 3, 4 and 5 of plaintiff's petition should be stricken."
On October 10, 1952, Hon. Sam F. Lowe, Jr., a Judge of the Civil Court of Fulton County, before whom said demurrers came on for a hearing, rendered judgment overruling the defendant's general demurrer, sustaining the special demurrers to paragraphs 3, 4, and 6, and overruling the special demurrers to paragraphs 5, 7, and 8. An amendment was filed to meet the special demurrer as to paragraph 2. Fifteen days were granted to petitioner in which to amend.
To so much of this judgment as overruled the general demurrer and certain of the special demurrers interposed to the petition, the defendant excepted pendente lite and assigns error thereon in the cross-bill of exceptions in this case.
Thereafter on November 11, 1952, the defendant renewed its demurrers, both general and special, to the petition as amended. Defendant demurred specially to paragraph 6 as amended, for the reason that said paragraph fails to show that the words therein used, "seconds" and "scrap tires," were of such universal usage in the tire business as to justify the conclusion that they became, by implication, a part of the contract; and it also demurred to said paragraph and the petition as a whole, in that the plaintiff has not properly amended to meet the objections of the defendant's special demurrer number 4, sustained to the original petition. The defendant further demurred to paragraph 6, because neither therein nor in any other portion of the petition is there set forth what, if any, defect in the tires received by the plaintiff from the defendant caused them to become "scrap tires," and, without such explanation or description of the defect, the allegations of this paragraph should be stricken as a conclusion. The defendant further demurred to and moved to strike the unnumbered paragraph set forth in the plaintiff's amendment, for the reason that it does not appear that the definition of the words "seconds" and "scrap tires" were of such universal practice in the tire business as to justify the conclusion that they became, by implication, a part of the contract. The defendant demurred specially to paragraph 11 of the petition as amended, on the ground that neither therein nor elsewhere in the petition as amended is there set forth in what manner or particulars said tires were "unsuitable for use as automobile tires," and without same the allegations of said paragraph are a conclusion.
The trial court on January 23, 1953, overruled all of said renewed demurrers, except paragraph 5 of the renewed demurrer, directed to paragraph 6 of the petition as amended, wherein it is set out that it did not appear in such petition or elsewhere in the petition as amended what defect, if any, caused the tires to become "scrap tires." The court also sustained the defendant's renewed demurrer to paragraph 11 of the petition, in which the defendant contended that said paragraph was subject to special demurrer because it did not appear therefrom or from the petition as amended in what manner or particulars the tires were "unsuitable for use as automobile tires," and that such allegation amounted to a conclusion and should be stricken.
The defendant thereupon within the time provided by law, excepted pendente lite to so much of the above order and judgment as overruled its general demurrer to the petition as amended, and overruled its special demurrers set forth in paragraphs 2, 3, and 4 of the renewed demurrers. The defendant assigns error on these exceptions pendente lite in the cross-bill of exceptions.
The case proceeded to trial before Hon. Sam Lowe and a jury, and after the introduction of evidence and the charge to the jury, a verdict was rendered on March 10, 1953, in favor of the defendant and judgment was entered thereon. The plaintiff company moved for a new trial on the general grounds, and by amendment added three certain special grounds. On May 28, 1953, the court denied the plaintiff's motion for a new trial as amended. Thereupon the plaintiff sued out its bill of exceptions to this court, assigning error on the denial of a new trial.
The defendant filed its cross-bill of exceptions, assigning error therein upon the exceptions pendente lite to the rulings of the court overruling its general demurrer to the petition and to the petition as amended and overruling certain of its special demurrers to certain paragraphs of the petition, both before and after amendment.
1. The evidence was such that a verdict and judgment in favor of the defendant was properly rendered. Besides, in the brief of counsel for the plaintiff company (now plaintiff in error in the main bill of exceptions in this court), it is stated: "Since the trial judge denied plaintiff's amended motion for a new trial by overruling `each and every ground thereof,' the plaintiff will not insist upon the general grounds of the original motion for a new trial before the court. Arguments will be presented in support of grounds, five, six, and seven of plaintiff's amended motion for new trial."
Where the plaintiff assigned error on the verdict as having been contrary to the evidence, but in his brief does not insist on such, this court will treat same as abandoned. Morrison v. Brown, 21 Ga. App. 217 (3) ( 94 S.E. 85). General grounds of the motion for a new trial neither argued nor insisted upon in this court will be treated as abandoned. See Tyner Blackmon v. Fryer c. Co., 85 Ga. App. 518, 525 ( 69 S.E.2d 793); Wiggins v. Lord, 87 Ga. App. 486 ( 74 S.E.2d 389); Padgett v. Reaves, 86 Ga. App. 137 ( 70 S.E.2d 922). In the present case the plaintiff expressly abandons the general grounds of its motion for a new trial and proceeds to argue and insist upon only three special grounds. Where the plaintiff states in his brief that only certain questions are involved, all other assignments of error will be treated as abandoned. Tift v. McCaskill, 171 Ga. 289 (3) ( 155 S.E. 192). In Georgia c. Ry. Co. v. Florida c. Co., 10 Ga. App. 38 ( 72 S.E. 511), this court held that, there being no assignment of error that the verdict was contrary to the evidence, a new trial will not be granted even though the verdict is without evidence to support it.
It follows that the plaintiff has expressly abandoned the general grounds of his motion for a new trial and now insists in this court only upon the special assignments of error appearing in special grounds 5, 6, and 7 of its amended motion for new trial.
2. In special ground 1, denominated "5" by counsel, the plaintiff insists that the court erred in charging the jury as follows: "I instruct you that the custom of any business or trade shall be binding only when it is of such universal practice as to justify the conclusion that it became by implication a part of the contract. Therefore, gentlemen, you must determine first of all whether or not the definition contended for by the plaintiff of the word `seconds' is a definition which is in use in the tire industry between wholesalers and wholesalers, that is, dealer to dealer, or dealer to manufacturer. Second, you must determine whether that custom is of such universal practice as to justify the conclusion that it became, by implication, a part of the contract in this case. In other words, did the parties to this case understand that the meaning of the word `seconds' as it was used in this case was that meaning which is contended for by the plaintiff in this case."
The plaintiff insists that the above excerpt was not a sound and accurate statement of the law applicable under the facts, and that by such instruction the jury were authorized to find for the defendant unless they found that the defendant, at the time of the contract, understood that the meaning of the word "seconds" as used in this case was that meaning which is contended for by the plaintiff.
Code § 20-704 sets forth certain rules for the purpose of aiding in the construction of contracts. Subsection 3 thereof provides: "The custom of any business or trade shall be binding only when it is of such universal practice as to justify the conclusion that it became, by implication, a part of the contract." In the absence of proof that a custom generally recognized as prevailing in a given city of Georgia was known to a nonresident, such custom cannot be held to have become, by implication, a part of the contract entered into between a citizen of this State and a nonresident. McCall v. Herrin, 118 Ga. 522 ( 45 S.E. 442). To the same effect see Savannah Bank Trust Co. v. McQueen, 149 Ga. 302 (2) ( 100 S.E. 33), and cit. The evidence did not demand a finding by the jury that the parties each had the same understanding as to the meaning of the term and word "seconds" as used in the contract involved, that is, that the defendant understood the term "seconds" to mean exactly what the plaintiff sets up was meant thereby. Consequently, it was not error for the trial court to instruct the jury as herein complained of. This charge stated an accurate principle of law and was not inapplicable here.
3. In special ground 2 (denominated by the plaintiff as "6"), complaint is made of the following charge: "If the specific article of the kind and description referred to in the plaintiff's petition and in the contract in this case was delivered — or the articles, if you will have the plural — the tires were delivered and if you find that they were `seconds' that there is no implied warranty that these tires would answer a purpose for which they were intended but only that the tires would conform to the description, that is, the description implied in the definition of `seconds' if you have found in favor of the plaintiff on that definition and have been of good workmanship and material — in other words, gentlemen, if you find in favor of the plaintiff on the definition of the word `seconds' I instruct you that the plaintiff could not recover even if some or all of the tires went bad for some reason other than the failure of the tires to meet the specifications in the plaintiff's definition of the word `seconds', if you find in favor of the plaintiff's definition of the word `seconds.'"
The plaintiff urges that this excerpt is not a correct and applicable statement of the law, not adjusted to the issues, and tended to confuse and mislead the jury. The plaintiff in his brief in this court has this to say relative thereto: "While the plaintiff does not feel that the language quoted in ground 6 of the plaintiff's amended motion is material enough error to warrant the grant of a new trial . . . it does contend that the subject of implied warranties should not have been dealt with in the charge since the theory of the plaintiff's case was based on the breach of the express warranty." It is true that, "Where there is a sale of personal property under an express warranty as to quality, there is no implied warranty." Brooks Bros. Lumber Co. v. Case Threshing Machine Co., 136 Ga. 754 ( 72 S.E. 40) and cit.; Compton v. Woodruff Machinery Mfg. Co., 23 Ga. App. 803 ( 99 S.E. 537). This is true because an express warranty necessarily excludes the warranty implied by law. Code § 96-301; Lewis v. Dickenson, 25 Ga. App. 354 ( 103 S.E. 195); Hall v. Georgia Paper c. Co., 57 Ga. App. 817 ( 196 S.E. 926). Where a written contract contains express warranties and agreements, the law will not imply that the parties agreed to the contrary. Worthington c. Co. v. Briarcliff, Inc., 67 Ga. App. 71, 81 ( 19 S.E.2d 574) and cit.; Frick Co., Inc. v. Smith, 70 Ga. App. 118 ( 27 S.E.2d 795).
"An express warranty may be created as a part of a contract of sale, by the use of such terms of description of the article sold as preclude any danger of mistaking or confusing that article with any other. An express warranty is exclusive of all warranties arising by implication. . . If an order be given to a manufacturer or dealer for a specific article of a known and recognized kind and description, and if the defined and described thing be actually supplied, there is no implied warranty that it will answer the purpose for which it is intended to be used. The only implied warranty or condition of the contract is that it will conform to the description and be of good workmanship and material." City of Moultrie v. Schofield's Sons Co., 6 Ga. App. 464, 468 ( 65 S.E. 315) and cit.
No error appears from this ground of the amended motion for a new trial.
4. Special ground 3: The trial judge did not err in refusing to admit in evidence when offered by the plaintiff, the Federal Register of Saturday, September 7, 1946, containing a statement as to the meaning of the term "factory second," in use by the governmental agency generally known as O. P. A. and by the automotive and tire industry relative to dealings with such agency. This document was not admissible, and upon objection by counsel for the defendant was properly rejected. The present action was between tire dealers, and the question was the meaning of the word and term "seconds" when used in contracts between such dealers. Besides it does not appear that the meaning of the term "seconds" given in this Register, dated September 7, 1946, had remained unchanged for the past nine years or that such term is the same as "factory seconds."
The trial court did not err, as contended by the plaintiff in the three special grounds added by amendment to the motion for a new trial; and it appearing that the evidence was sufficient to authorize the verdict found in favor of the defendant (the general grounds also having been expressly abandoned by the plaintiff), the trial court properly denied the motion for new trial as amended.
The judgment denying the motion for new trial as amended, on which error is assigned in the main bill of exceptions, being affirmed as correct, it becomes unnecessary to pass upon the alleged errors assigned in the cross-bill of exceptions sued out by the defendant, wherein it complains that the trial court erred in its findings on the general and special demurrers interposed by the defendant to the petition and the renewals thereof.
Judgment affirmed on the main bill of exceptions. Cross-bill of exceptions dismissed. Townsend and Carlisle, JJ., concur.