Hall v. Studebaker Corp. Of Am.

• Decision Date: 28 October 1913
• Docket Number: (No. 4,941.)
• Citation: 79 S.E. 750,13 Ga. App. 632
• Parties: HALL. v. STUDEBAKER CORPORATION OF AMERICA.
• Court: Georgia Court of Appeals

79 S.E. 750

(13 Ga. App. 632)

HALL.

v.STUDEBAKER CORPORATION OF AMERICA.

(No. 4, 941.)

Court of Appeals of Georgia.

Oct. 28, 1913.

(Syllabus by the Court.)

1. Sales (§ 445*) — Breach of Warranty — Action—Nonsuit.

The plaintiff having made out a prima facie case by the introduction of evidence supporting the allegations in his petition, the court erred in granting a nonsuit.

[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1303-1308; Dec. Dig. § 445.*]

(Additional Syllabus by Editorial Staff.)

2. Sales (§ 437*)—"Execution" of Contract —Effect of Admission.

Where the defendant in an action for breach of a contract of warranty of an automobile admitted the "execution" of the contract, this was an admission of the doing of acts necessary to carry its purpose into effect and left plaintiff with the necessity of proving merely a breach and damages.

[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1248-1257; Dec. Dig. § 437.*

For other definitions, see Words and Phrases, vol. 3, pp. 2558-2501.]

Pottle, J., dissenting.

Error from City Court of Macon; Robt. Hodges, Judge.,

Action by T. M. Hall against the Stude-baker Corporation of America. Judgment for defendant, and plaintiff brings error. Reversed.

Sibley & Sibley, of Milledgeville, and A. L. Dasher, of Macon, for plaintiff in error.

Hatcher & Smith, of Macon, for defendant in error.

HILL, C. J. Suit was brought in the city court of Macon against the Studebaker corporation of America for damages for an alleged breach of a contract of guaranty of an automobile. Upon the trial, after the introduction of evidence by the plaintiff, a nonsuit was granted. To this judgment he excepted.

The plaintiff's petition contained substantially the following allegations: That the defendant was a nonresident corporation with an agent in Bibb county, Ga., to wit, the firm of Williugham & Wheeler, composed of E. J. Williugham, Jr., and J. C. Wheeler: that on June 24, 1911, plaintiff purchased of the defendant an automobile "known as an E. M. F. Roadster 30, and paid the full purchase price therefor, " and at the time of purchase the defendant executed to the plaintiff the following contract of guaranty: "The Studebaker Corporation, E. M. F. Factories, Manufacturers of Automobiles. Certificate No. 6764, Motor No. 21447, Model E. M. F. 30. Detroit, Michigan, U. S. A. Guaranty: This is to certify that the Studebaker Corporation fully warrants and guarantees the automobile covered by this certificate for a period of one full year from the date of original sale by the dealer. This guaranty includes all material and all equipment (tires excepted) used in connection with the construction of such automobile. Tops and windshield not guaranteed unless bearing E. M. F. nameplate. If any part or parts of this car break or prove defective within one year from any cause whatsoever, and the customer shall forthwith communicate the fact to the Studebaker Corporation or one of its authorized dealers, giving the number of the car and the name of the dealer from whom the car was bought and the date of purchase, and if it shall appear that such breakage was not due to misuse, negligence, or accident, the Studebaker Corporation will furnish such new parts either at its branch house or its factory in Detroit, Mich., free of charge to the owner. This guaranty does not apply either directly or indirectly to consequential damages of any nature whatsoever, or to the replacement of tires which are guaranteed by the manufacturers thereof. The Studebaker Corporation. Walter E. Flanders, Third Vice President. Attest: James E. Spencer, Assistant Sect."

It was alleged that within six months from the date of purchase the said automobile proved defective in the following parts: Radiator, gasoline tank, left front fender, and body—and that notice of these defects was given the defendant, in compliance with the contract, but that the defendant failed and refused to comply with its agreement and make good the defects, to petitioner's damage.

The defendant in its answer admitted its nonresidence, denied that it had an agent in the firm of Willingham & Wheeler, but averred that this firm were dealers in automobiles manufactured by the defendant, admitted the execution of the contract at the alleged date of sale, and admitted that notice under the contract was given by the plaintiff and that the defendant failed and refused to replace the parts, but denied that the plaintiff had purchased the automobile from it, averring that, if such purchase was made, it was from some firm, or dealer, or person other than the defendant. It denied liability.

The written contract set forth in the petition was introduced in evidence. On the back of it was the following indorsement: "The Studebaker Corporation, E. M. F. Factories, Manufacturers of Automobiles, Certificate of Guaranty. Certificate No. 6764. Model E. M. F. 30. Car No.—. Owner, Dr. T. M. Hall. Address, Milledgeville, Ga. Date of sale, June 24, 1911." The plaintiff introduced evidence in support of the material allegations of the petition. Counsel...