Farlow v. Barton

• Decision Date: 07 July 1939
• Docket Number: 27476.
• Citation: 3 S.E.2d 777,60 Ga.App. 287
• Parties: FARLOW et al. v. BARTON et al.
• Court: Georgia Court of Appeals

3 S.E.2d 777

60 Ga.App. 287

FARLOW et al. v. BARTON et al.

No. 27476.

Court of Appeals of Georgia, Division No. 2.

July 7, 1939

Syllabus by the Court.

In action by automobile buyers for damages resulting from sellers' failure to procure collision insurance for automobile as agreed by sellers, wherein undisputed evidence showed contractual obligation to procure the insurance, and it appeared that sellers failed to do so, admission of evidence tending to show the rates and charges of a finance corporation for insurance and carrying charges in connection with the sale of the same type of automobile as that purchased by the buyers was not error.

Exclusion of parol testimony to effect that witness had been convicted of a felony was proper where record of conviction was not accounted for, such record being the "best evidence."

1. On the trial of a suit brought by the purchaser of an automobile against the sellers, to recover damages for a breach of contract by the defendants in failing to procure collision insurance on the automobile, where it appeared conclusively and without dispute from the evidence that by the terms of the contract of sale the plaintiffs were to make periodic payments on the purchase-price, which included carrying charges for collision insurance for and during the period of the contract, that, before the expiration of the period of the contract, the plaintiffs' automobile was damaged in a collision, that the defendants had failed to take out a policy as contracted, and the periodic payments on the purchase-money, including the carrying charges for insurance, were based on the rates charged by a certain finance incorporation for the same period for the same type of automobile sold, it was harmless to the defendants and therefore not error, to admit in evidence the type of policy issued by the corporation covering collision insurance on the type of automobile sold to the plaintiffs and testimony to the same effect by the agents of the corporation, showing that the rates charged by the defendants for insurance and carrying charges were the same as those charged by the corporation for collision insurance for the same period of time as the contract between plaintiffs and defendants for the sale of the same type of automobile.

2. The best evidence of a person's conviction of crime is the record of his conviction. On objection, the court properly excluded parol testimony of a witness that he had been convicted of a felony and had served a sentence in the Federal penitentiary, when the same was offered for the purpose of impeaching and discrediting the witness.

3. There being no other error complained of, the court did not err in overruling the defendants' motion for new trial.

E. B Barton and Harry Barton brought suit against B. J. Sample trading as Sample Cars, Inc., and E. W. Farlow, to recover for an alleged breach of contract by the defendants. Plaintiffs alleged that on January 13, 1937, they purchased from the defendants a 1936 Plymouth Four Door Sedan automobile for $600, paying $250 cash by trading in another automobile of the plaintiffs, leaving a balance due of $350 that the plaintiffs executed to the defendants a note for $446.94, payable in 18 monthly instalments of $24.83 each; that included in this aggregate amount was $96.94 representing carrying charges, insurance, etc., that on the execution of the note the defendants agreed to take out insurance on the automobile covering fire, theft, and collision for a period of 18 months, that on or about January 8, 1938, and before the expiration of one year from the execution of the contract, the automobile which the plaintiffs had purchased from the defendants was totally wrecked in a collision, that at the time of the collision there was no insurance on the automobile, the defendants not having taken out insurance as they had contracted with plaintiffs to do, that at the time of the collision the value of the automobile was $400, that the plaintiffs owed a balance of only $173 on the purchase-money and had "an equity" in the automobile of $277, and that, with an allowance of $50 deduction on the insurance, the defendants were indebted to the plaintiffs in the sum of $177. Plaintiffs alleged that defendants' failure to take out insurance covering their automobile was a breach of the contract, to the plaintiffs damage in the sum of $177, and they prayed judgment therefor. The defendants filed a plea generally denying the allegations of the plaintiffs' petition. The evidence supported the allegations as to the sale, contract, terms of the contract, and the wrecking of the plaintiffs' automobile.

E. B Barton, one of the plaintiffs, testified in detail as follows: "After I agreed on price of $600, with trade-in value on the V-8 Ford of $250, leaving $350 balance, Mr. Sample and Mr. Farlow figured out carrying charges, insurance, making the payments to be $24.83. The insurance was fire, theft, and collision. I have figured the difference from $350 and carrying charges and find the difference to be $96.94. This bill of sale was given on January 13, 1937, at the time of the purchase. I executed that note with my son and delivered it to Mr. Farlow. The monthly payments to be made were $24.83. I...