Opinion
40662.
DECIDED MAY 4, 1964.
Foreclosure, etc. Tift Superior Court. Before Judge Lott from Alapaha Circuit.
Reinhardt Ireland, D.C. Ireland, Glenn Whitley, for plaintiff in error.
G. Gerald Kunes, contra.
1. Where, in an affidavit of illegality to the foreclosure of a conditional sales agreement, a purchaser seeks to recoup payments which he has made upon the purchase price of personalty, asserting a breach of the warranty of merchantability resulting in a failure of consideration, the measure of damages is the difference in the amount which he has paid and the value of the chattel.
2. Where the seller removes a breach of the warranty of merchantability by a repairing of the personalty or a replacement of defective parts, thus placing it in good working condition at his own expense, a verdict is not authorized for the purchaser in any amount upon his plea of recoupment.
3. Assignments of error upon portions of the charge which are not likely to recur upon a retrial of the case are not passed upon.
DECIDED MAY 4, 1964.
On August 8, 1960, John S. Taylor, who manufactured Tifcon Tobacco Curers, sold to Reid A. Wilson two of the curers for the sum of $1,328.80, the transaction being upon open account, and installed them in Wilson's barns. Upon installation Wilson paid $250 upon the purchase price and proceeded to use the curers in connection with the harvesting and curing of his tobacco crop during the month of August, 1960. During that time the thermostats on the automatically controlled forced-air heat curers began to malfunction, as a result of which Wilson's tobacco cured out with a green instead of an orange or lemon color as it was supposed to do when properly cured, and its sale price was adversely affected. When the malfunctioning was discovered Junior Ross, Taylor's representative and servicing agent, was notified and he came, according to Wilson's testimony, "every time I called him — I don't remember how many times — and tried his best to correct it." Though the attempts to correct the problem with the thermostats were not successful before the end of the 1960 curing season, Wilson made a further payment of $359.50 September 10, 1960, and when pressed for payment of the balance executed to Taylor a note and conditional sale contract on the curers for the remaining balance of $719.20 on November 9, 1960, the balance to be paid in two installments of $359.60 each on August 15, 1961 and August 15, 1962. The contract contained a provision that in the event of default by the maker in any terms thereof the unpaid balance should be immediately due and payable.
When the 1961 curing season came on (in July or August) Wilson again called upon Taylor to correct the trouble with the thermostats. Ross (Taylor's agent) determined that it would take new thermostats to effect the correction. A new one of the same type was installed on one of the curers and one of a different type was installed on the other. As to the one with the same type the trouble continued through the 1961 season, but, as to the other, Wilson testified that it "worked perfectly." Taylor was unable to get another thermostat of the different type until in October, 1961 — when it was installed.
The installment due August 15, 1961 was not paid, and finally on April 27, 1962, the conditional sale contract was foreclosed in the manner of a chattel mortgage by the making of an affidavit as to the amount of the indebtedness past due and unpaid thereunder. Execution issued and was levied upon the two curers. Wilson then filed an affidavit of illegality, contending therein that there had been a failure of consideration for the contract and note because "the articles sold were not merchantable and reasonably suited to the use intended," relying upon the provisions of Code § 96-301. His right to plead a breach of warranty and a consequent failure of consideration in the affidavit of illegality was sustained in Wilson v. Taylor, 106 Ga. App. 720 ( 128 S.E.2d 83).
Repealed by U.C.C., but new provisions for implied warranty as to merchantability enacted by Code Ann. § 109A-2-314.
Upon the trial of the issue before a jury a verdict was returned in Wilson's favor for $1,028.80. To the overruling of his amended motion for new trial Taylor excepts.
1. For a breach of the seller's implied warranty of merchantability a purchaser may recover (a) the reasonable expense of operating or attempting to operate the machine or equipment, provided none of the expense is incurred after discovery of the fact that it could not be made to operate properly, Cochran v. Jones, 85 Ga. 678, 683 (5) ( 11 S.E. 811), (b) the reasonable cost of making repairs or correcting defects if incurred by him, National Sheet Metal Co. v. McKenzie, 62 Ga. App. 292 ( 8 S.E.2d 93), or if, by reason of the breach or defects the machine or equipment can not be made to operate properly by making repairs or correcting defects, (c) the difference between the amount paid and the value of the chattel, Farmer v. Lee Smith Mule Co., 59 Ga. App. 257, 258 (5) ( 200 S.E. 467), and (d) loss of profits resulting from the breach, if not speculative, Hirsch v. Schofield's Sons Co., 8 Ga. App. 284 (3) ( 68 S.E. 1076), and (e) any damage to person or property directly traceable to the breach. Where "[t]he petition shows a breach of the warranty, and loss to plaintiff appears from its allegations" a cause of action is set out. Welfare Finance Co. v. Waters, 98 Ga. App. 20, 23 ( 104 S.E.2d 669).
No claim was made for any expenses of operation, for making repairs or replacements of defective parts, for damage to person or property, and the claim for loss of profits by reason of the decreased value of Wilson's tobacco due to improper curing when the thermostats malfunctioned was stricken on demurrer — that ruling being unexpected to. Thus the jury had only the claim of the difference in the amount paid and the value of the curers to deal with in making its verdict.
2. While Wilson testified, in support of his claim for recoupment, that the curers were "useless . . . just junk . . . and would have sold on the junk market for something like $25.00," he also testified that the reason they did not operate properly after installation was that the thermostats malfunctioned, the replacement of which would cost approximately $30; that he thought them to be the best curers on the market if the thermostats had worked, and that after the thermostat was replaced in one of them it "worked perfectly." The other thermostat was similarly replaced, though after the end of the 1961 curing season, and in the absence of any evidence to the contrary it is to be assumed that this replacement would produce similar results.
"Where any party — plaintiff, defendant, claimant, or what not — takes the stand as a witness in his own behalf, and delivers testimony which is self-contradictory on the most material issue in the case, — the very heart of it, — that version of his testimony must be adopted which is most favorable to his adversary; and such a party will not be permitted to overcome his own adverse testimony merely by offering witnesses who swear differently." Meinhard-Ferst-Doyle Co. v. DeLoach, 19 Ga. App. 323, 327 ( 91 S.E. 446). "A person testifying in his own behalf is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him," he is not entitled to prevail, even under the power of the jury to accept his testimony, unless "by his evidence he establishes a cause of action, or a defense, as the case may be, and from no view of his testimony would a finding against him be warranted." Southern Bank v. Goette, 108 Ga. 796 (1, 2) ( 33 S.E. 974). Accord, Long Cigar c. Co. v. Harvey, 33 Ga. App. 236, 237 ( 125 S.E. 870).
"In an action for the purchase price of property sold and delivered, where the plea is that the consideration has totally failed, in that the property was worthless, a general verdict in the defendant's favor is not authorized by evidence that the property is worthless in its present condition, where the undisputed evidence further shows that by a small expenditure it could be repaired and made to perform good work." Colt Co. v. Armstead, 36 Ga. App. 64 ( 135 S.E. 317).
Since the replacement cost of the thermostats on curers costing $1,328.80 amounted to only $30, or approximately that, and the replacements put the curers in good working condition, the breach of warranty amounting to a failure of consideration never amounted to more than the cost of the replacements. This was accomplished some six months prior to the institution of the foreclosure action, at the request of the purchaser and by the seller, presumably at his own expense. Conceding, therefore, that there was a breach of the warranty of merchantability up to the time both of the thermostats were replaced, it must follow that the breach was relieved by the replacement and did not exist at the time of the institution of the foreclosure. Consequently, there was no evidence to support any recovery by Wilson upon his plea of recoupment.
3. There are several assignments of error upon portions of the charge, but since a new trial must result for the reason stated above it is not likely that the errors complained of will occur again, and we forego any ruling on them.
Judgment reversed. Bell, P. J., and Jordan, J., concur.