Opinion
37304.
DECIDED SEPTEMBER 25, 1958.
Action for damages. Chatham Superior Court. Before Judge McWhorter. May 28, 1958.
Perry Brannen, Erwin A. Friedman, Brannen, Clark Hester, for plaintiffs in error.
William F. Braziel, contra.
Under the allegations of the petition, the trial court erred in overruling the general demurrer. The pleadings show, as a matter of law, that the petition is subject to dismissal on the sustaining of a general demurrer.
DECIDED SEPTEMBER 25, 1958.
C. L. Eargle, Jr., hereinafter called the plaintiff, brought suit for damages against C. N. Wilson and W. C. Wilson d/b/a Wilson Marine Sales Service, hereinafter called the defendants Wilson, upon an alleged breach of an implied warranty in connection with the sale of a boat, motor and trailer purchased from the defendant Wilson by the plaintiff under a conditional-sale contract. In the same action the plaintiff requested an injunction against Seaboard Finance Company, hereinafter called the defendant Seaboard, restraining them from proceeding with any legal action against the plaintiff.
From various references thereto it seems that the defendant Seaboard answered the plaintiff's petition, which answer does not appear in the record.
The defendants Wilson filed general and special demurrers and an answer to the petition and filed a general demurrer to the petition as amended.
Following a hearing on the plaintiff's request for an injunction against the defendant Seaboard, the court refused to grant it and the defendant Seaboard was dismissed.
The court overruled the general demurrer of the defendants Wilson and it is to the order of the court overruling their general demurrer that the defendants Wilson except here.
The petition omitting the formal parts, alleged substantially: that on August 28, 1956, the plaintiff purchased a boat, motor and trailer totaling $1,536.18 from the defendants, under a conditional-sale contract which was subsequently transferred and assigned to Seaboard Finance Company to whom plaintiff has been making monthly payments; that the said contract called for $158.28 down payment to Wilson Marine Sales and Service and 24 monthly payments of $71.20 each to Seaboard Finance Company of which the plaintiff has made 5; that the equipment purchased by the plaintiff has proved unsatisfactory and of no value whatsoever to him; that he has had nothing but trouble and numerous breakdowns causing the motor and outfit to be completely worthless to him; that during the first week of September 1956 the motor broke down due to the bolts which hold the fuel pump in place (which was repaired by the defendants); that the second breakdown occurred twelve miles out from port when a single pull of the starter cord caused the safety disk wheel to break in three places and tear up the recoil starter; that the plaintiff finally got the engine cranked by removing the housing and using a piece of ski rope to crank it; that on the way back to port, screw adjustments had to be made to prevent the crank case pump from falling in the water; that the defendants Wilson said the breakdown was the plaintiff's fault and presented the plaintiff with a bill for $12.55 which he paid; that during the third week of September six miles out from port the plaintiff stopped to glance at his chart, took the engine out of gear and upon putting the transmission back in gear, the propeller would not turn and he had to be towed back into port; that defendants Wilson lubricated the remote controls and advised the plaintiff that the engine would perform satisfactorily; that the plaintiff returned to the marina, paying additional lift fees of $1.50 each time and the engine would not even pull the boat away from the dock; that the plaintiff returned the boat outfit to the defendants Wilson who supposedly made the necessary repairs and returned same to the plaintiff stating that it was fixed; that on or about September 21 on a return trip up the Ogeechee River the recoil starter once again tore up and after about an hour and a half the plaintiff and a friend were able to crank the motor and limp into port, whereupon the plaintiff carried the outfit to the defendants Wilson who supposedly made the necessary repairs, returning it to the plaintiff, stating that it was fixed; that on or about October 7, 1956, the engine again broke down and the plaintiff and his friends were forced to paddle about a quarter of a mile back to the dock, whereupon the plaintiff carried the motor to the defendants Wilson and demanded that something be done about it; that the defendants Wilson put a new propeller unit on the motor and returned it to the plaintiff as a completed unit; that on or about October 9, 1956, the plaintiff had needed stripping and a live bait box installed at the total expense of $18.85; that on or about November 11, 1956, a friend, while attempting to come aboard, slipped and his knee struck the top deck; that the deck splintered and a large hole was made in the deck; that upon having the hole repaired the plaintiff learned that the deck had no braces or supports on the underside to keep the deck from breaking when a sharp or unusual blow befell it and further that the deck had not been glued in place as it should have been when it was built; that the plaintiff received a repair bill in the amount of $32.73; that on or about November 18, 1956, the plaintiff noticed that the engine was exceedingly hard to start and that it would miss; that he notified the defendants Wilson that the motor was not performing correctly, whereupon the defendants Wilson requested plaintiff to continue using the engine on account of their mechanic being off for the Thanksgiving holidays and they had no other engine to loan the plaintiff; that on or about November 25, 1956, while fishing in the Wilmington River the plaintiff noted that the motor was missing and the boat began to leak and the ribs and other vital parts began to vibrate, move about and give every sign of being about to break or come apart; that the plaintiff returned the boat to the defendants Wilson who said that all was needed was a few wood screws in the ribs; that the plaintiff carried the boat to others, including Blanton Boat Works, who advised him that the boat was in danger of breaking in half in rough water because no wood screws or glue had been used in the construction of the boat, and the plaintiff being in fear of drowning left the boat with Blanton to be repaired at a cost of $37.50; that on December 2, 1956, on a fishing trip at the north jetty of the Savannah River with friends, the engine suddenly quit, the tide was going out, and they were swept out about two miles into the Atlantic before a friendly boatman came by and pulled them to the jetty, whereupon the plaintiff took the engine to Savannah Marine and was advised by mechanics that the top main bearing of the engine was worn out, there being 70 and 90 thousandths of an inch wear in the bearing, which was disastrous, and was advised to send the engine to the manufacturer for proper repair; that the plaintiff paid $20.06 to Savannah Marina for what they did; that the plaintiff then carried the engine to the defendants Wilson and was later advised that water had gotten inside the main bearing causing all the bearings in the entire engine to rust and wear out; that on December 23, 1956, the defendants Wilson lent the plaintiff another engine while his was being repaired; that when the plaintiff returned the borrowed engine and asked for his own, the defendants Wilson advised him that the repairs were not completed yet, whereupon the plaintiff attempted to negotiate a trade on another make engine; that the plaintiff was offered a trade at $475 and his motor new was $482.75; that when the plaintiff asked why the trade price was so high he was advised by the defendants Wilson that they had to add in the price of rebuilding the plaintiff's own engine since it was the plaintiff's fault that his engine broke; that the plaintiff then told the defendants Wilson that he was returning the boat and outfit and would forfeit the down payment, monthly payments and money spent on repair and maintenance; that the defendants Wilson refused the offer and referred the plaintiff to the Seaboard Finance Company whereupon the plaintiff then advised the defendants Wilson that he was going to store the boat and outfit, charging the defendants Wilson for the storage; that on December 31, 1956, the plaintiff made the same offer to Seaboard as he made to the defendants Wilson and they advised him that they did not want the outfit, they wanted the money and would immediately turn the account over to their lawyer for collection, regardless of the failure of consideration between the defendants Wilson and the plaintiff, whereupon the plaintiff advised them he was going to store the outfit charging Seaboard for the storage; that the plaintiff at no time abused or mistreated the boat and outfit but kept it oiled and serviced and had it washed thoroughly after each use to avoid salt-water damage; that the failure of the boat and motor are solely the fault of the defendants Wilson and the plaintiff has had no enjoyment from the outfit due to the many breakdowns, has been put to additional expense and his life actually endangered on several occasions; that plaintiff had given defendants Wilson every opportunity to repair the boat and motor but neither can be repaired and the outfit is totally worthless to the plaintiff. The plaintiff further alleged that the defendants Wilson have been cantankerous and stubbornly litigious and that the plaintiff should recover attorney's fees of $500 from them; that the plaintiff's expenses due to the defendants Wilsons' action and failure of consideration of the outfit sold by them totaled $267.65; that the conditional-sale contract signed by the plaintiff to the defendants Wilson has nothing in it to indicate that it is a negotiable instrument; that the assignment on the back of the said contract without recourse by the defendants Wilson to Seaboard Finance Company is simply an assignment of a contract and Seaboard is not a holder in due course; that Seaboard has threatened legal action against the plaintiff for the balance due of $1,352.80 if he does not continue to make payments monthly; that in order to avoid a multiplicity of suits, equity should take jurisdiction and settle all disputes between the parties and have an injunction issued against Seaboard to prevent it from taking any legal action until further order of the court; that the assignment without recourse of the defendants Wilson to Seaboard has a condition in it that it is without recourse, except a warranty titled "B": "That the property is correctly described in said agreement, is not defective in any particular, has not been misrepresented to the purchaser and has been actually delivered into the possession of the purchaser therein named in good faith." That the articles mentioned in the conditional sale are and have been defective from the beginning and therefore, the defendant Seaboard does have a right of recourse against the defendants Wilson; that the plaintiff has deposited with the defendant Seaboard twelve checks and Seaboard has remaining in its hands seven of the checks that they will deposit, much to the embarrassment of the plaintiff, unless they are restrained from doing so. The plaintiff prayed for judgment against the defendants Wilson in the amount of $781.93 with interest plus $500 attorney's fees and all court costs; that Seaboard Finance Company be restrained and enjoined against proceeding with any legal action against the plaintiff until further order from the court, and also, depositing plaintiff's checks; that a rule nisi issue against the defendant Seaboard; that process issue; that the conditional-sale contract be canceled and set aside, and that the plaintiff have such further relief as is just and equitable.
The defendants Wilson specially demurred in two counts concerning the failure of the plaintiff to set out the terms of the conditional-sale contract and failure to attach a copy as a part of the petition. Paragraph 3 reads: "The above named defendants demur specially to paragraph 30 and to the allegation `the failure of the boat and motor are solely the fault of the defendant' in that said paragraph and petition fail to show how and in what manner these defendants were at fault, there being no allegation in said petition to show any duty upon these defendants to perform any act in behalf of the plaintiff." The defendants Wilson then demurred generally to the plaintiff's petition upon the ground that the said petition failed to state a cause of action.
The plaintiff amended his petition by adding the conditional-sale contract and making it a part of the petition, whereupon the defendants Wilson filed their general demurrer to the petition as amended and moved that the suit be dismissed.
The court overruled special demurrers 1 and 2 since the plaintiff amended his petition to meet the objections contained in the demurrers, and the court further ruled that the words objected to in paragraph 30 by the third demurrer are not necessary to the plaintiff's cause of action since both parties treat the suit as being for breach of implied warranties. Therefore the third demurrer was sustained and the words stricken.
The court then overruled the general demurrer of the defendants Wilson on the ground that certain language in the conditional-sale contract rendered the contract ambiguous and raised a jury question as to what the parties really meant.
The defendants have stated the question presented here in the following language: "The sole question of law presented in this case is whether an implied warranty of suitability and merchantability may arise by operation of law under a contract for the sale of chattels in which the parties thereto have expressly agreed in writing that, `no other agreement or guaranty, oral or written, express or implied, shall limit or qualify the terms of this contract, and no warranty of said chattels has been made unless herein expressed.'" The plaintiff stated that the true question is only a question as to whether or not the petition set out a cause of action good against a general demurrer in view of the inconsistent provisions of the contract. Regardless of how stated, this court must decide whether or not the trial court was correct in overruling the general demurrer and thus ruling that the question should be decided by a jury.
Code § 96-301 provides: "If there is no express covenant of warranty, the purchaser must exercise caution in detecting defects; the seller, however, in all cases (unless expressly or from the nature of the transaction excepted) warrants that. . . (2) The article sold is merchantable, and reasonably suited to the use intended. (3) He knows of no latent defects undisclosed."
The conditional-sale contract reads in part as follows:
"Description of merchandise New Serial No. Price 1 — 16 Ft. Sampson boat with steering, remote controls, hardware installed New $808.55 1 — BT5 Galletta trailer with tilter, winch, bow stop, trailer-hitch tie down New 244.85 1 — 33 H.P. Scott Atwater motor New 3665-6074 482.78" There is a paragraph of the contract which reads: "It is agreed that no other agreement or guaranty, oral or written, express or implied, shall limit or qualify the terms of this contract, and that no warranty of said chattels has been made unless herein expressed. This agreement shall not be binding on you until your acceptance is signed hereon."In Bullard v. Brewer, 118 Ga. 918 (1) ( 45 S.E. 711) the court said: "Where parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements is inadmissible to add to, take from, or vary the written instrument."
Hon. Edwin A. McWhorter, Judge of the Superior Court, Eastern Judicial Circuit (which comprises Chatham County) wrote a decision which we shall quote. Judge McWhorter said, regarding the general demurrer, that the first real contention of the defendants is based upon this portion of the contract: "I acknowledge acceptance of delivery, after thorough examination, of the foregoing chattels to be kept and/or installed at the place mentioned above." The judge went on to say that the quoted sentence, considered as standing alone, is not sufficient to waive the implied warranty contained in the Code that the boat was merchantable and reasonably suited to the use for which it was intended. The judge went on to say (and we thoroughly agree with what he says), as follows: "The court has reviewed numerous decisions of our appellate courts and those that held that inspection of the article is sufficient to waive the implied warranty involved additional language such as, `Sold as is', Findley v. Downing Motors Incorporated, 79 Ga. App. 682 ( 54 S.E.2d 716), or `the vendor does not warrant said property and makes no representation . . . except that the title to same is in the vendor and free from encumbrance', Skellie v. Gulf Finance Co., 88 Ga. App. 18 ( 75 S.E.2d 842), or contained some such language as `purchaser agrees not to file a plea of failure of consideration' or `waives all damage by reason of repairs', or `waives all damages against the vendor growing out of the purchase of the article.' For illustration of the language used, see Floyd v. Woods, 110 Ga. 850, 853 ( 36 S.E. 225); Washington Lincolnton Railroad Co. v. Southern Iron Equipment Co., 28 Ga. App. 684 ( 112 S.E. 905) and Morgan v. Williams, 46 Ga. App. 774 (1) ( 169 S.E. 211).
"The law writes into the sale of each chattel the implied warranties, and the court feels that in order for them to be waived, the language of the contract should be clear and certain. [Italics ours.]
"It is insisted by the demurrants that the language of the above quoted portion of the contract, considered with the following language, `It is agreed that no other agreement or guaranty, oral or written, express or implied, shall limit or qualify the terms of this contract, and that no warranty of said chattels has been made unless herein expressed.' shows the clear intent upon the part of the purchaser to waive all warranties, express or implied. The court admits that this language standing alone is susceptible to the interpretation placed thereon by demurrants, but there is another clause of the contract which, in the court's opinion, nullifies this language. It is, `I agree that you may at any time assign this agreement or any right thereunder, and that all terms hereinabove set forth for your benefit shall inure to the benefit and operate in favor of your successors and assigns, I hereby waive as against such successors and assigns all right of recoupment, setoff, and counter-claim, which I have or ever might have against you. . .' While this shows a clear intent to waive the right of recoupment as against an assignee, in the court's opinion, it shows also an intent not to waive any right of recoupment against the seller. Otherwise, the language, `Which I have or ever might have against you' must be entirely disregarded. A recoupment cannot arise against the seller unless it grew out of the contract of sale. This language is entirely inconsistent with the language above quoted that no warranty is made of said chattels and, in the court's opinion, renders the contract ambiguous and, therefore, raises the jury question as to what the parties really meant. The language was clearly for the protection of an assignee and not for the protection of the assignor, and it would seem to the court that as the language relied on by the demurrants is so similar to that of Corley v. Wilensky Son, 55 Ga. App. 857 ( 191 S.E. 879), and Taylor v. Lovett Tharpe Hardware Co., 67 Ga. App. 414 ( 20 S.E. 616), that the ruling thereunder would govern this case, especially should the jury determine that there was no intent to waive implied warranties. Therefore, on this narrow ground alone the court feels that it must overrule the general demurrer." We agree with the language of the trial judge that a contract which is so drawn as to waive the implied warranties written into the sale by law should be clear and certain on that point, and we also agree that in every case where it has been held that the implied warranties were waived, additional language was written into the contract. But we find equally strong language written into this contract in the words: "No warranty of said chattels has been made unless herein expressed." We do not agree with the contention that the contract provision waiving the right of recoupment renders this provision ambiguous. Under the contract there are several instances where recoupment might arise — for example, if some of the equipment proved not to be new, if the hardware were not installed, if the boat was not fitted with remote controls or was not 16 feet in length or was of another make than that specified, if the motor did not have the required horsepower, if the trailer did not come equipped with a tilter, winch, or bow stop, and so on. The contract therefore does warrant that certain articles as described therein are being sold, and if any of those articles were not as described, the plaintiff, on a suit against him by the vendor for the purchase price, would have been entitled to recoup sums which he had paid out in excess of the amount he would have owed if the plea of failure of consideration should be sustained. The trial court's order, which is quoted hereinabove states: "Upon this narrow ground alone the court feels that it must overrule the general demurrer." The distinction drawn by the trial court could only arise if there were no circumstances in the contract as written where the purchaser could recoup against the seller except on an implied warranty, and, as shown above, this is not the case here. Consequently, we do not think the contract ambiguous. We believe that it would do violence to well established law to hold that the words, "No warranty of said chattels has been made unless herein expressed" does not exclude implied warranties. Implied warranties exist only "unless expressly or from the nature of the transaction excepted." Code § 96-301. See also Barrineau v. Holman, 19 Ga. App. 511, 512 ( 91 S.E. 921); Payne v. Chal-Max Motor Co., 25 Ga. App. 677 ( 104 S.E. 453); Cody Edgar v. Automobile Financing, Inc., 37 Ga. App. 452, 453 ( 140 S.E. 634); Kontos v. Jordon, 57 Ga. App. 267 ( 195 S.E. 210); Seigler v. Barrow, 83 Ga. App. 406 ( 63 S.E.2d 708), and Bridges v. Avery Sons Co., 86 Ga. App. 9 ( 70 S.E.2d 550).
In any event, this case is controlled by Jones v. Love, 67 Ga. App. 594 ( 21 S.E.2d 254), where the contract of sale contained the language: "Buyer agrees that seller does not warrant said property in any manner other than as stipulated in this contract." It was there held that the court erred in charging on implied warranties, as against the contention that "the written contract expressly provides that no purchase warranty shall exist . . . the contract did not stipulate any warranty as charged by the court."
The court erred in overruling the general demurrer of the defendants.
Judgment reversed. Townsend and Carlisle, JJ., concur.