Hardy v. General Motors Acceptance Corp.

• Decision Date: 13 July 1928
• Docket Number: 18539.
• Citation: 144 S.E. 327,38 Ga.App. 463
• Parties: HARDY et al. v. GENERAL MOTORS ACCEPTANCE CORPORATION.
• Court: Georgia Court of Appeals

144 S.E. 327

38 Ga.App. 463

HARDY et al. v. GENERAL MOTORS ACCEPTANCE CORPORATION.

No. 18539.

Court of Appeals of Georgia, Second Division

July 13, 1928

Judgment Adhered to on Rehearing September 1, 1928.

Syllabus by the Court.

The provision of the sale agreement relied upon as excluding the implied warranty did not so operate, and, the court having erroneously refused to permit the defendant to prove a breach of such warranty, the verdict directed in favor of the plaintiff, which followed as a matter of course, must be set aside.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Purchase-money attachment sued out by the General Motors Acceptance Corporation against Elsie Hardy and others. Judgment for plaintiff. Certiorari by defendants was overruled, and defendants bring error. Reversed.

Julian S. Chambers and Jerome Moore, both of Atlanta, for plaintiffs in error.

Harry S. McCowen, of Atlanta, for defendant in error.

JENKINS P.J.

1. Unless the parties to a sale agreement should by special contract expressly or by implication provide otherwise, the law implies an unexpressed warranty on the part of the seller that he has a valid title and the right to sell the bargained property, that it is merchantable and reasonably suited to the uses intended, and that he knows of no undisclosed latent defects. Civil Code 1910,§ 4135. Where by private agreement the parties seek to take the law in their own hands, they are at liberty to do so, and the general rule is that an expressed warranty excludes the implied warranty ( Springer v. Indianapolis Brewing Co., 126 Ga. 321 [3], 55 S.E. 53), but only to the extent that the expressed warranty deals with matters which would have been covered by the implied warranty, and should not be construed to exclude the implied warranty as to matters with which it does not deal, and with which it does not conflict ( Roebling's Sons Co. v. Southern Power Co., 142 Ga. 464 [1], 83 S.E. 138, L.R.A. 1915B, 900; Camp v Clarkesville Foundry & Machine Works, 30 Ga.App. 298 302, 117 S.E. 660).

The construction of a contract is a question for the court. Where any matter of fact is involved, the jury should pass on the fact. Civil Code 1910, § 4265. It has often been said that while it is the duty of the court to construe all plain and unambiguous contracts, this duty is delegated to the jury in cases of ambiguity, where resort must be had to aliunde testimony in order to clarify the meaning of the language used, so as to get at the real intention of the parties. Nelson v. Spence, 129 Ga. 35 (7), 58 S.E. 697; Ludden & Bates v. Dairy & Farm Supply Co., 17 Ga.App. 581, 87 S.E. 823; Empire Mills v. Burrell Engineering Co., 18 Ga.App. 253, 89 S.E. 530. It would seem, however, that in a mixed question of law and fact, such as is involved in the construction of an ambiguous contract requiring aliunde proof for its clarification, it would be more accurate to say that the court, at last, must construe the contract, inasmuch as the jury, after passing upon the issues of fact, must give to it such effect as is in accord with the alternative instructions of the court. In the instant case, there being no issue of fact involved, it was the duty of the court to construe the contract without the aid of the jury, and in doing so to give effect to the cardinal rule of construction, which is to ascertain the intention of the parties as evidenced by the language employed. Civil Code 1910, § 4266. If the contract was of doubtful meaning, it was his duty to construe it against the party who prepared it. Wilcox v. Owens, 64 Ga. 601.

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