C.J. Howard, Inc. v. C.V. Nalley & Co.

• Decision Date: 12 November 1931
• Docket Number: 21252.
• Citation: C.J. Howard, Inc. v. C.V. Nalley & Co., 161 S.E. 380, 44 Ga.App. 311 (Ga. App. 1931)
• Parties: C. J. HOWARD, Inc., v. C. V. NALLEY & CO.
• Court: Georgia Court of Appeals

161 S.E. 380

44 Ga.App. 311

C. J. HOWARD, Inc., v. C. V. NALLEY & CO.

No. 21252.

Court of Appeals of Georgia, Second Division

November 12, 1931

Syllabus OPINION.

Evidence of false representations inducing execution of contract is not objectionable under parol evidence rule (Civ. Code 1910 § § 4113, 4254).

Representation of salesman that similar contract had been entered into with customer's business competitor held material representation of fact, supporting customer's defense of fraud (Civ. Code 1910, § § 4113, 4254).

Salesman's statement that goods sold were almost indispensable to automobile business constitutes mere expression of opinion amounting to "puffing" (Civ. Code 1910, § § 4113 4254).

Express warranty excludes implied warranty only to extent that express warranty deals with matters which would have been covered by implied warranty (Civ. Code 1910, § 4135).

Language of sales contract, "no verbal agreements made," held not to exclude implied warranties (Civ. Code 1910, § 4135).

Where contract provided "no verbal agreements made," defendant could not assert defense of breach of express warranty, where no such warranty was incorporated in terms of contract.

Error from City Court, Hall County; W. B. Sloan, Judge.

Action by C.J. Howard, Incorporated against C. V. Nalley & Co. There was judgment for defendant and an order overruling plaintiff's motion for new trial, and plaintiff brings error.

Reversed.

T Glenn Dorough, of Gainesville, for plaintiff in error.

Boyd Sloan, of Gainesville, for defendant in error.

JENKINS P.J.

1. "Fraud voids all contracts." Civil Code 1910, § 4254. "Fraud may exist from misrepresentation by either party, made with design to deceive, or which does actually deceive the other party; and in the latter case such misrepresentation voids the sale, though the party making it was not aware that his statement was false." Civil Code 1910, § 4113.

2. "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." Bullard v. Brewer, 118 Ga. 918, 45 S.E. 711. What constitutes the terms of a contract is however, one thing, and whether or not false and fraudulent representations may have induced the make of it is another and different thing. Barfield v. Farkas, 40 Ga.App. 559 (3), 150 S.E. 600. Accordingly, the plea of the defendant in the instant case that the contract sued on was induced by fraud on the part of the plaintiff in falsely representing that the goods contracted for were almost indispensable to the automobile business, and that the plaintiff's agent "had sold a like order" to the defendant's competitor in business, and that it was necessary for the defendants to purchase the goods in order to compete fairly with the competitor was not subject to be stricken on the ground that it sought to vary the terms of the written agreement. While the statement alleged to have been made, that the goods were "almost indispensable tothe automobile business," constituted an expression of opinion on the part of the salesman, and amounted to...