Bayliner Marine Corp. v. Prance
| Decision Date | 09 September 1981 |
| Docket Number | 61833,Nos. 61832,s. 61832 |
| Citation | 283 S.E.2d 676,159 Ga.App. 456 |
| Parties | BAYLINER MARINE CORPORATION v. PRANCE. STOVALL TIRE & MARINE, INC. v. PRANCE. |
| Court | Georgia Court of Appeals |
Howell W. Ragsdale, Jr., Atlanta, for appellant in No. 61832.
Albert B. Wallace, Jonesboro, for appellant in No. 61833.
Paul R. Koehler, Atlanta, for appellee.
On October 24, 1978, Prance Body and Fender Works, Inc., as buyer, purchased a Bayliner boat and a motor from Stovall Marine North, as seller, located in DeKalb County, Georgia. The purchase and sale is based upon a conditional sales contract involving a loan by and between the parties. This agreement was signed, sealed and delivered by the buyer who executed same as buyer with the signature "David M. Prance, Pres." The co-buyer thereon was shown as "David M. Prance Per Ind." Both signatures were under seal. In the agreement David M. Prance requested credit life insurance and declined credit disability insurance. This part of the agreement was signed by "David M. Prance."
After the purchase and use of the boat and during the first 12 months thereof, the buyer contends that on the outer surface of the hull "a blistering appearance began to develop ... which necessitated that the cruiser had to be removed from the water" for repairs. The boat was returned to Stovall Marine North, which undertook to make repairs, and repairs were made to the hull at the expense of the manufacturer. The buyer contends the repairs were unsatisfactory, and the seller and manufacturer thereafter refused to make any further repairs.
On October 10, 1979, David M. Prance, d/b/a Prance Body and Fender Works, Inc., filed an action against Bayliner Marine Corporation with a registered agent for service in Fulton County and Stovall Tire and Marine, Inc., a corporation, located in Clayton County. The suit was filed in Fulton County, and Stovall Tire and Marine, Inc., was served by second original. The action was in two counts. Count 1 sought damages for negligence in the repair of the boat, seeking an amount in excess of $3,000 to resurface the outer hull and for expenses in excess of $900. Count 2 sued for a manufactural defect and alleged the defendants to be guilty of bad faith and of being stubbornly litigious in disavowing any legal responsibility for repairs to the cruiser and abandoning the plaintiff as a consumer, seeking jointly and severally for all expenses incurred, the actual repairs or its equivalent of a new cruiser, if it cannot be repaired; plus loss of use and benefit, as well as attorney fees and expenses of litigation.
The defendant Bayliner Marine Corporation answered and, in general, denied the claim, although admitting jurisdiction. Stovall Tire and Marine, Inc. failed to answer and became in default. It later attempted to open the default but same was denied by the court after a hearing.
After discovery the case proceeded to trial, and during the trial plaintiff moved to amend the complaint to conform to certain evidence. Plaintiff was allowed to add a third count against the defendant Bayliner Marine Corporation for breach of contract of repair, contending the plaintiff's boat is worthless and plaintiff seeks to recover the purchase price from the defendant Bayliner Marine Corporation. Plaintiff David M. Prance, d/b/a Prance Body and Fender Works, Inc. was also allowed to amend, contending the real and proper party in interest was Prance Body and Fender Works, Inc., and that the corporation should be made a party inasmuch as the true intention of the plaintiff was to bring it in the name of David M. Prance and in the name of Prance Body and Fender Works, Inc., inasmuch as the corporation was the owner of the boat and the individual plaintiff's interest in the complaint was joined as his name appeared "on the conditional sales contract as a co-obligor."
The jury returned a verdict for the "plaintiff" against the defendant Stovall Tire and Marine, Inc. as to liability "because they are in default" and against defendant Bayliner as to liability. As to damages awarded, the jury found that Stovall Tire and Marine, Inc. would rescind the contract and return to the plaintiff all monies paid on the boat since the date of purchase in the amount of $5,390; $1,500 for legal (attorney) fees; $1,500 for damages (punitive) for bad faith; $2,090 for plaintiff's old boat which was used as a down payment on the new boat; and to relieve the plaintiff of all indebtedness incurred in the purchase of the boat. With reference to the defendant Bayliner Marine Corporation as to damages, the jury awarded the plaintiff $1,500 for legal (attorney) fees; $1,500 damages (punitive) for bad faith; and $2,000 because the defendant Bayliner had "exercised negligence in having been stubbornly litigious." In addition, as to damages, the boat was to be returned to the defendant Stovall Tire and Marine, Inc. The final judgment and decree made the verdict of the jury a part thereof and attached same to the judgment. The court therein then directed the plaintiff to return the boat to defendant Stovall Tire and Marine, Inc., and awarded a judgment against Stovall Tire and Marine, Inc. in the sum of $5,390; $1,500 for damages for bad faith, and $1,500 attorney fees; and $2,090 for reimbursement for his former boat which was used as a down payment on the present boat, and further ordered that the plaintiff was relieved of any indebtedness incurred, "including any finance charges on the boat involved in this litigation." As to defendant Bayliner Marine Corporation the plaintiff was awarded judgment in the sum of $2,000 for negligent action in the premises (negligent repair on the boat); $1,500 for bad faith, and $1,500 for legal fees. Both defendants separately moved for judgment notwithstanding the verdict and plaintiffs David M. Prance and Prance Body and Fender Works, Inc. moved to remold the judgment so as to conform to the verdict. All of these motions were denied. Defendant Bayliner Marine Corporation appeals in Case No. 61832 and defendant Stovall Tire and Marine, Inc. appeals in Case No. 61833. Held :
1. Plaintiff offered in evidence a conditional sales contract dated "10/24/78," showing the buyer as Prance Body and Fender Works, Inc., and the seller as Stovall Marine North. However, this instrument provided for credit life insurance as a part of the credit which was signed by David M. Prance. David M. Prance also signed the instrument as buyer with the word "Pres." following his name. As co-buyer on this instrument David M. Prance signed as "Per Ind." Both of these signatures were followed by the word "Seal," that is, the instrument was signed, sealed and delivered by the buyer, and was signed by the buyer and co-buyer. However, the first witness called by the plaintiff was David McDonald Prance, who testified that he was the sole stockholder, president, and chief executive officer of Prance Body and Fender Works, Inc. In answer to a question as to whether Prance Body and Fender Works, Inc. purchased a boat from Stovall Tire and Marine, Inc., his reply was, "Yes, I did." He then identified the sales contract referred to above as showing where he bought the boat from "Stovall Marine." The instrument shows the seller as "Stovall Marine North." Further testimony disclosed that the boat was purchased as pleasure for his family and for himself because it had sleeping quarters for his wife and children. He purchased the Bayliner boat from Stovall because at that time Stovall was the only authorized dealer in Atlanta that carried Bayliner. He bought the boat "under the corporation," "yet they wanted me to sign it personally." He contends the boat was bought as property of the corporation and the additional signature was his guarantee or an endorsement as "guarantor." The indebtedness created by the instrument was later transferred to After five months' use the boat was returned to Stovall Marine North because of problems, and the boat was thereafter repaired. During cross-examination Mr. Prance admitted that he was aware there were two separate distinct businesses known as Stovall Marine and R. V. Center on the south expressway, where he knew a Mr. Graham Stovall, who was not a dealer for Bayliner boats, and also Stovall Marine North which was a dealer for Bayliner boats where he made his trade with one Mr. John Stovall.
Plaintiff also offered in evidence an affidavit of the president of Bayliner Marine Corporation in which the affiant admitted that Stovall Tire and Marine, Inc., an independent contractor, was a business to which Bayliner supplied boats at an agreed price; it was Stovall Tire and Marine, Inc.'s responsibility to market and sell Bayliner's boats; that Stovall Tire and Marine, Inc. was not under direct supervision or control of Bayliner; and that in the present case Bayliner had "employed Stovall Tire and Marine, Inc., to make certain repairs to the hull of purchaser's boat ... to correct any blistering damage to the hull, if such existed."
Plaintiff's evidence was also voluminous as to his attempts to obtain redress for the defects appearing in the boat, and he also had admitted in evidence, in answer to def...
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