Cook-Davis Furniture Co., Inc. v. Duskin

• Court: Georgia Court of Appeals
• Writing for the Court: WEBB; BELL; EVANS; PANNELL
• Citation: Cook-Davis Furniture Co., Inc. v. Duskin, 214 S.E.2d 565, 134 Ga.App. 264 (Ga. App. 1975)
• Decision Date: 12 February 1975
• Docket Number: 3,COOK-DAVIS,Nos. 1,No. 49811,2,49811,s. 1
• Parties: FURNITURE COMPANY, INC. v. Frank DUSKIN

Page 565

214 S.E.2d 565

134 Ga.App. 264

COOK-DAVIS FURNITURE COMPANY, INC. v. Frank DUSKIN.

No. 49811.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Feb. 12, 1975.

Rehearing Denied March 13, 1975.

Duross Fitzpatrick, Cochran, for appellant.

A. Newell NeSmith, W. Lonnie Barlow, Cochran, for appellee.

Syllabus Opinion by the Court

WEBB, Judge.

Cook-Davis Company, Inc., brought an action against Frank Duskin seeking recovery under a retail instalment sales contract for the purchase price of furniture described in the contract. A copy of the contract, attached to the complaint, showed that property insurance was requested by the buyer, and that the premium for the property insurance was added to the charges listed in the contract. The defendant answered, admitting the execution of the contract and that he had made no payments, and set up a defense in paragraphs 5, 6 and 7 of his answer as follows:

'In further response to the complaint of the plaintiff, defendant alleges as follows: This defendant executed an instalment sales contract with Cook-Davis Furniture Company, Inc., which said instalment contract called for.$180.54 to pay for property insurance on the property set forth in said sales contract executed November 25, 1969. Defendant alleges that he specifically requested property insurance to be obtained as a part of the contract, that he placed an X in that section of the contract indicating his election to obtain property insurance as a part of the contract, and that he placed his signature in that section of the contract entiled 'Insurance Statement' indicating his understanding that property insurance was part of the contract for which he paid.$180.54.

'That defendant, relying on said contract and with the understanding that Cook-Davis Furniture Company, Inc., had included property insurance as a part of its credit to him, allowed the furniture to be removed to his home, where on the night of November 27, 1969, the furniture described on the sales contract was destroved by fire which burned the home of the defendant. All of the furniture was burned beyond repair or reuse.

'Defendant alleges that pursuant to the contract, his first instalment would have been due on January 31, 1970. Defendant further shows that as part of the contract the title remained in the plaintiff. Plaintiff should have been reimbursed $4,250 from his property insurance company and plaintiff would not be entitled to a judgment.'

The notice of appeal designated the materials to be sent up by the clerk of the trial court and recited that no transcript of the evidence was to be sent up. The only knowledge we have of what transpired is the judgment of the court granting to the defendant-appellee a judgment notwithstanding the verdict, from which judgment the plaintiff-appellant appeals to this court. That judgment reads as follows:

'Plaintiff brought suit on an instalment Sales Contract for Furniture. The transaction is governed by 'The Retail Instalment and Home Solicitation Sales Act,' Ga.Code 96-901 et seq. The defendant buyer checked the appropriate option in the contract indicating a desire for the furniture to be covered by insurance and was charged a premium therefor in the contract computation.

'The defense was offered that the furniture was destroyed by fire and that the defendant should not have to pay due to the insurance provision of the contract.

'Evidence at the trial indicated that the sale occurred just prior to a holiday weekend and at a time when the Finance Company to whom plaintiff normally discounted its retail instalment contracts was closed for the weekend and for these reasons plaintiff's officer explained to defendant that the furniture could not be delivered to him until the Finance Company office was open as only the employees of that company could activate the requested insurance coverage. After some discussion, according to plaintiff's evidence, the defendant assured an officer of plaintiff that he was adequately covered by a homeowner policy, that he would waive the insurance protection over the weekend, and that he would assume the attendant risk of loss. Further according to plaintiff's evidence, the plaintiff's officer authorized delivery after such waiver by defendant was made.

'During the holiday weekend, the furniture was destroyed by fire.

'Defendant's evidence at the trial was contradictory to that of plaintiff and indicated that no waiver whatsoever of the insurance provisions of the contract was mentioned or agreed to by him.

'The defendant made a motion at the close of the plaintiff's case and at the conclusion of the evidence for both sides for a directed verdict on the basis that the waiver of the insurance provisions of the contract, even if made, was illegal and void and that there being no writing contradicting the terms of written contract, a judgment for defendant was demended.

'The court reserved a ruling and submitted to the jury for special verdict whether there was in fact a waiver of the insurance provisions as claimed by plaintiff. The jury found there was a waiver. The defendant now raises the same questions by motions for judgment n.o.v. . . .

'After study of the issue, this court has concluded the motion of the defendant must be granted. The Act under which the rights of the parties are to be determined requires that the instalment contract be in writing (Ga.Code § 96-903), and, moreover, that Act prohibits waiver of the provisions thereof (Ga.Code § 96-913). Consumer legislation of the type under consideration here simply modifies general civil law in other fields and it is no answer to say that a written contract may be modified by a new oral agreement under certain circumstances or that the Uniform Commercial Code authorized waiver of a sales contract provision. See Ga.Code § 109A-2-209(4); Geiger Finance Co. v. Graham, 123 Ga.App. 771, 775 (182 S.E.2d 521). The Act in question forbids an oral modification or waiver of an instalment sales contract governed by its terms.

'A delay in activating the insurance not having been provided in the contract, none can now be provided.

'Judgment is rendered on the defense motion n.o.v. and accordingly it is ordered that plaintiff take no recovery and that defendant be discharged with his costs.'

The jury verdict reads as follows: 'We, the jury find in favor of the plaintiff that the defendant did waive his rights.' This finding by the jury as to 'waiver' was obviously based upon a finding that the testimony of the plaintiff as to the circumstances surrounding the delivery of the property, as shown in the trial judge's order, was found to be true by the jury. And the trial judge based his ruling on questions of law, which in his opinion compelled him to disregard the jury's finding. The contract does not recite when the property insurance requested by the buyer will become effective. It is silent as to this. Held:

1. Ordinarily we would not consider deciding an enumeration of error upon the trial court's sustaining of a motion for judgment notwighstanding the verdict in the absence of a trascript of the proceedings, including the evidence. Berrien v. Avco Financial Services, 127 Ga.App. 584, 194 S.E.2d 337. Here, however, the facts as to a defense set up by the defendant appellee have been determined adversely to him by a special finding of the jury upon a conflict of testimony recited in the trial judge's order, and the trial judge granted the motion for judgment notwithstanding the verdict based on a matter of law, irrespective of the finding. In these circumstances the transcript of the evidence is not necessary for a decision of the case.

2. Uniform Commercial Code, Code § 109A-2-209(4) provides that 'Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) (because not in writing) or (3) (because the statute of frauds is not satisfied) it can operate as a waiver.' However, The Retail Instalment and Home Solicitation Sales Act (Ga.L.1967, p. 659 as amended; Code Ann. Ch. 96-9) governs here. Cf. Geiger Finance Co. v. Graham, 123 Ga.App. 771, 775, 182 S.E.2d 521. Section 13 of that Act (Code Ann. § 96-913) provides that 'Any waiver of the provisions of this Act shall be unenforceable and void,' and section 3(a) (Code Ann. § 96-903(a)) provides that 'Every retail instalment contract shall be in writing and shall be completed as to all essential provisions prior to the signing thereof by the buyer . . .' (Emphasis supplied.)

The only question here is whether the provisions for insurance are 'essential provisions' of the contract. If so, they are required to be in writing (§ 3(a) of the Act; Code Ann. § 96-903(a)), and any oral agreement that the insurance would not be procured by the seller as provided for by the contract is 'unenforceable and void.' § 13 of the Act (Code Ann. § 96-913). The furniture company contends that since § 3(g) of the Act (Code Ann. § 96-903(g)) provides that the buyer can procure his own insurance, then procurement of the insurance by the seller is an 'optional,' rather than 'essential,' provision of the contract and need not be in writing.

This line of reasoning must be rejected. Virtually all terms of an instalment contract may be 'optional' until agreed upon by buyer and seller, including the purchase price, down payment, amount of monthly payments, etc. But once the goods are selected and terms agreed to, the former 'optional' matters become the essential provisions of the contract. Here there is a separate 'box' on the contract form stating that 'Property Insurance may be obtained either as part of the credit (in which case cost is set forth in the Statement of Transaction) or from a person of your choice.' Below this statement appears the following: 'I request decline Property Insurance,' signed by the buyer. In the 'Statement of Transaction' appears the amount of the sales tax, cash price, down payment and unpaid...