Opinion
No. 69-161.
August 5, 1969.
Appeal from the Circuit Court, Dade County, Hal P. Dekle, J.
Shorenstein Lewis and Richard C. Lewis, Miami Beach, for appellant.
Shutts Bowen and Robert C. Sommerville, Miami, for appellee.
Before PEARSON, C.J., and CHARLES CARROLL, and BARKDULL, JJ.
Appellant, defendant in the trial court, seeks review of an adverse summary judgment in an action to collect on a promissory note. He urges as points on appeal a breach of oral warranties and a failure of consideration for the execution of the promissory note. We find no error in the judgment here under review.
The four written agreements involved in the transaction out of which the promissory note arose, indicate that a vessel was sold "as is, where is", which clearly excluded any oral representation or warranties as to the performance capabilities of the vessel. Yanish v. Fernandez, 156 Colo. 225, 397 P.2d 881; Findley v. Downing Motors, Inc., 79 Ga. App. 682, 54 S.E.2d 716; Holbrook v. Capital Automobile Company, 111 Ga. App. 601, 142 S.E.2d 288. No proper issue was raised as to the failure of consideration; no specific affirmative defense was pleaded and, without such, this matter is not properly raised as a point on appeal. See: Biro v. Geiser, Fla. 1967, 199 So.2d 461; Light v. King, Fla.App. 1965, 179 So.2d 398; Accord Jones v. Life Insurance Company of Florida, Fla.App. 1968, 215 So.2d 889.
Therefore, for the reasons above stated, the final summary judgment here under review be and the same is hereby affirmed.
Affirmed.