Consumers Financing Corp. v. Lamb, 21335
| Decision Date | 11 October 1961 |
| Docket Number | No. 21335,21335 |
| Parties | CONSUMERS FINANCING CORP. v. Ida T. LAMB, Administratrix. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where the plaintiff might not obtain complete relief without joining all the parties involved in a transaction, resort may be had to equity in order to prevent a multiplicity of actions.
2. Where, under the averments of the petition, the defendant had knowledge of the agreement and by its acts was a party to such agreement, it owed the plaintiff the duty to procure credit life insurance.
3. Acceptance of the benefits and part performance of the contract by the plaintiff would preclude the defendant from attacking the alleged oral portion of a contract which appeared to be an explanation of the entire contract rather than conflicting with the written portion.
Ida T. Lamb, Temporary Administratrix of the estate of Walter M. Lamb, deceased, filed a petition in the Superior Court of Emanuel County, seeking injunctive relief and damages for violation of a contract to procure credit life insurance against Consumers Financing Corporation (hereinafter referred to as Consumers), Franklin-Overstreet and Company (hereinafter referred to as Franklin), and J. L. Lewis, Jr., Sheriff of Emanuel County. The petition as amended alleged: that Franklin as the regular Ford dealer for Emanuel County handled the financing of automobiles sold by it under a reserve and retail protection agreement with Consumers; that Franklin had a continuing interest in each transaction, contract and automobile handled with Consumers; that it was the established custom and agreed procedure for Franklin to prepare notes and conditional sale contracts upon forms provided by Consumers, and such contracts, initially made payable at Consumers, were immediately transferred and assigned by Franklin to Consumers and forwarded to them for further handling; that it was part of the regular procedure for Franklin to arrange for various types of insurance, including credit life insurance, the premiums of which were included in the various finance charges; that such insurance would be actually procured by Consumers, and in such transaction both defendants were agreed agents of the purchaser-obligor to procure and obtain such insurance.
The further averments of the petition were: that the deceased, Walter M. Lamb, purchased a 1960 Ford automobile from Franklin with credit life insurance included in the transaction and under the above described procedure; that said automobile was damaged in a collision, and deceased agreed with the President of Franklin to trade this automobile in on a new car upon certain necessary conditions, which were oral covenants entered into by the parties supplementing the written note and conditional sales contract, one of which was that the same credit life insurance coverage as was had on deceased's existing automobile would be procured by Franklin and Consumers acting as agents in his behalf; that there was a regular form, described as a 'Purchaser's Statement,' prepared and signed by deceased and the President of Franklin on forms furnished by Consumers which contained an authorization by the deceased for Franklin and/of Consumers to purchase and place fire and theft insurance for their mutual protection and such other insurance as may be required to cover their respective interest and to execute applications for such insurance if and when required; that deceased insisted upon such coverage being obtained; that deceased executed and delivered the note and conditional-sale contract in the sum of $3,513.87, of which amount $77.49 provided for the credit life premium; that the note and contract were transferred to Consumers in the usual manner and procedure; and that deceased continued to make regular payments to Consumers for some four months until his death on December 26, 1960.
The petition alleged: that Consumers accepted the credit life insurance premium and retained the same without notification to the deceased of any failure to obtain insurance; that the deceased would never have purchased the new automobile except for the assurance that credit life insurance would be obtained, this promise having induced him to purchase the automobile; that no notification was given to the deceased that the insurance was not legally in force, nor was there any return of premium; that following the death of Walter M. Lamb, the plaintiff was informed by the President of Franklin that credit life insurance had not been obtained and that Consumers had informed him, but he had failed to advise the deceased of this fact; that Consumers, with the advice and consent of Franklin, had sued out a personalty foreclosure proceeding which had resulted in a fi. fa. being levied upon the automobile; that, under the contract to procure the insurance, the defendants owed deceased the duty to obtain such insurance or to notify him of their failure to do so; that plaintiff's right to file a counter affidavit in the...
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