City Dodge, Inc. v. Gardner
| Decision Date | 04 December 1973 |
| Docket Number | No. 2,No. 48427,48427,2 |
| Citation | 203 S.E.2d 729,130 Ga.App. 502 |
| Parties | CITY DODGE, INC. v. Franklin C. GARDNER |
| Court | Georgia Court of Appeals |
Webb, Parker, Young & Ferguson, Paul Webb, Jr., John Tye Ferguson, Atlanta, for appellant.
Harmon & Smith, Archer D. Smith, III, Tyrone M. Bridges, J. Matthew Dwyer, Atlanta, for appellee.
Syllabus Opinion by the Court
This appeal is by an automobile dealer (defendant below) from the order denying his motion for new trial which had followed a verdict for plaintiff awarding both actual and punitive damages as well as attorney fees on a tort complaint averring fraud and deceit in the purchase and sale of a used car.
Plaintiff's case was based on an alleged fraud, that being his having been induced to buy a 1971 Dodge in reliance upon the salesman's express representation that it had not been 'wrecked' when the fact was otherwise. This sad information was obtained shortly after the purchase as a result of motor and body troubles which caused plaintiff to take the car to garagemen for repairs. Thereupon, he notified defendant dealer that he was rescinding the purchase by reason of fraud simultaneously making an unconditional return of the automobile. When the dealer refused to accept such delivery the buyer made it a continuing tender by informing defendant he would place the car at his residence where it would remain and would not be used and where dealer was authorized to take possession thereof at any time. Subsequently the car was repossessed by the bank which had financed the purchase.
The dealer's defense was two-fold. One of these defenses was factual, this being a denial of any fraudulent conduct in support of which defendant presented its evidence, which included a showing that the dealer had purchased the car from a finance company without knowledge of it having been wrecked. But since plaintiff presented sufficient evidence concerning fraud to create a jury question the verdict of the jury adverse to defendant constituted a determination that the twelve 'doctors of doubt' 1 had preferred that version of the case made by plaintiff buyer on this issue.
The second defense was that plaintiff's signature to certain sales documents barred his action. These included a vehicle buyer's order and a sales agreement both of which contained an express disclaimer of warranty and a statement that 'No other agreement, promise or understanding of any kind pertaining to this purchase will be recognized.' The latter document also stated that the car was sold 'as is.' Held:
1. The controlling principle is stated to be that 'Where the purchaser of personal property has been injured by the false and fraudulent representations of the seller as to the subject matter thereof, he ordinarily has an election whether to rescind the contract, return the article, and sue in tort for fraud and deceit, or whether to affirm the contract, retain the article, and seek damages resulting from the fraudulent misrepresentation.' Nichols v. Williams Pontiac, Inc., 95 Ga.App. 752, 98 S.E.2d 659. The plaintiff in this case elected to rescind the contract, return the car, and sue in fraud. He did this by a written rescission accompanied by a continuing tender of the automobile. If he had chosen the alternative method, then the applicable legal principles which apply to a suit by a defrauded buyer who elects to affirm the contract and retains the article are found in Rustin Oldsmobile, Inc. v. Kendrick, 123 Ga.App. 679, 182 S.E.2d 178.
It is the fact of this effective rescission and cointinuing tender which takes the instant case out of the category of those decisions holding that a buyer of an automobile is precluded from recovery for fraudulent misrepresentations occurring during purchase negotiations when he subsequently signs a contract containing a disclaimer of any warranties except those expressed in writing, exemplified by Rogers-Farmer Metro Chrysler-Plymouth v. Barnett, 125 Ga.App. 494, 188 S.E.2d 122 and the cases cited therein and by Andrews Motors Co. v. Clement, 127 Ga.App. 745, 195 S.E.2d 249. All of those rulings were in cases premised upon the contract. This distinction was pointed out in the most recent decision involving a suit by a defrauded buyer against a car dealer, that being Central Chevrolet, Inc. v. Campbell, 127 Ga.App. 30, 198 S.E.2d 362 (cert. denied). There at page 31, 198 S.E.2d at page 364 it is said 'This case differs from Brown v. Ragsdale Motors, 65 Ga.App. 727, 16 S.E.2d 176, where, because of the language of the contract, the plaintiff could not rely on any statement therein made but would have had to travel on total rescission and tender, which he failed to do.'
Because the case sub judice was not a suit on the contract as was the situation in both Holbrook v. Capital Auto. Co., 111 Ga.App. 601, 142 S.E.2d 288 and Alpha Kappa Psi Bldg. Corp. v. Kennedy, 90 Ga.App. 587(1), 83 S.E.2d 580 relied upon by appellant it is not necessary for us to deal with the question as to whether the signature was obtained by some fraudulent artifice which was discussed in those cases.
2. Enumerations of error 3 and 4 deal with a portion of the trial court's charge concerning the right of rescission of a contract. The pertinent portion reads: 'And I charge you that misrepresentation of a material fact, made wilfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently, and acted on by the opposite party, constitutes legal fraud.' Appellant's objection is to inclusion of the words 'if made by mistake and innocently, and acted on by the opposite party.'
We observe the language objected to represents only a few phrases from a charge which was not only complete but was regarded by the plaintiff below as being unfavorable to plaintiff's cause to the extent that plaintiff's attorney noted six objections. Defendant's sole objection was to this principle. We do not deem it necessary to decide if it was erroneous or otherwise because it is clear that it was not harmful in the context of the entire case and of the complete charge.
Although there was evidence from defendant's employees, including the salesman, as to their innocence and lack of knowledge of the car having been wrecked the case was premised on actual fraud with the plaintiff presenting testimony from the defendant's mechanic contradicting the salesman in that he had informed him four days prior to the purchase concerning...
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