Hoffman v. Franklin Motor Car Co.
| Decision Date | 24 April 1924 |
| Docket Number | 15244. |
| Citation | 122 S.E. 896,32 Ga.App. 229 |
| Parties | HOFFMAN v. FRANKLIN MOTOR CAR CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The direction of a verdict is in legal contemplation a "final judgment" from which a writ of error will lie. Legere v. Blakely Gin. Co., 11 Ga.App. 325 (1) 75 S.E. 163, and cases cited.
It is an indispensable requisite of a motion for continuance on the ground of surprise, made by the defendant after an amendment by the plaintiff to his petition, that the movant make oath or his attorney state in his place, "that such surprise is not claimed for the purpose of delay." This matter is not left to inference, and there must be an express statement to that effect in the record. Atlantic & Birmingham R Co. v. Douglas, 119 Ga. 658 (1), 46 S.E. 867; Civil Code 1910, § 5714. The application for continuance in the case at bar was lacking in this essential particular.
In case of a sale of a chattel, where the parties have reduced to writing what appears to be a complete and valid contract of sale, it will, in the absence of fraud, accident, or mistake be conclusively presumed that the writing contains the entire agreement, and parol evidence of prior or contemporaneous representations, statements, or agreements in regard to the subject-matter is inadmissible to add to, take from, or vary the written instrument. Bond v. Perrin, 145 Ga. 200 (1), 88 S.E. 954; Pryor v. Ludden & Bates, 134 Ga. 288, 67 S.E. 654, 28 L.R.A. (N S.) 267; Dyar v. Walton, 79 Ga. 466 (2), 7 S.E. 220; Reeves Tractor & Implement Co. v. Barrow, 30 Ga.App. 420 (1), 118 S.E. 456.
Where, without fraud, accident, or mistake touching its execution, the parties to a sale of personalty enter into a written contract with respect thereto in which is contained a stipulation that "the vendor does not warrant said property and makes no representation concerning same except that the title to same is in the vendor and free from incumbrance," such stipulation amounts to an express refusal by the vendor to warrant the property except as to title, and the vendee cannot contradict the terms thereof by pleading a breach of the other ordinary implied warranties of the law or of express warranties and representations made by the vendor prior to or at the time of the sale, as to the condition of the property sold. Harrell v. Holman, 21 Ga.App. 159 (1), 93 S.E. 1021; Payne v. Chal-Max Motor Co., 25 Ga.App. 677 (1), 104 S.E. 453; Branch v. James, 4 Ga.App. 90, 60 S.E. 1027; Connell v. Newkirk-George Motor Co., 28 Ga.App. 382, 111 S.E. 749; Washington & Lincolnton R. Co. v. Southern Iron & Equipment Co., 28 Ga.App. 684 (1), 112 S.E. 905.
The answer in this case, with the proffered amendments, in seeking to set up the defense of a rescission of the contract of sale by mutual consent, under the provisions of the Civil Code, § 4304, was fatally defective, in that it failed to show that the vendor accepted the return of the property in lieu of payment of the purchase price, but only upon the promise that it would "make some satisfactory adjustment with the defendant," which was never executed. Such averments did not establish a sufficiently definite agreement touching the alleged rescission. showing that the minds of the parties had failed to meet with respect thereto.
Neither did the answer, together with the proffered amendments, set forth the defense of accord and satisfaction. Where accord and satisfaction is pleaded in bar to a suit based on the original cause of action, it must appear that the accord has been fully executed.
The action in this case was based upon ordinary promissory notes, the consideration of which was not disclosed in the suit. At the appearance term the defendant filed an answer alleging that the notes had been given as a part of the purchase price of an automobile, and undertaking to set up the defenses of fraud, failure of consideration, and mutual rescission or accord and satisfaction. At a subsequent term of the court the plaintiff tendered and the court allowed an amendment to the petition, in which it was averred that contemporaneously with the sale the parties entered into a written contract fixing the terms thereof, including the stipulation set forth in paragraph 4 above. Thereafter the court disallowed certain amendments to the defendant's answer, struck the original plea, and directed a verdict in favor of the plaintiff. Held: Under the several rulings made above, and considering the terms of the sales contract (assuming its execution), none of the defenses sought to be pleaded were valid; but the failure of the defendant to answer the amendment to the petition, averring the execution of the sales contract. would not authorize the court to treat the allegations in the amendment in respect thereto as being admitted. The defendant is not required to answer an amendment to the plaintiff's petition. However, if he answers it voluntarily, he will be bound by any admissions which he makes of the facts therein alleged, and the proposed amendments to the answer in this case are construed as containing an admission of the execution of the sales contract set forth in the previous amendment to the petition. Without such admission the court could not properly have struck the defendant's original answer, treating it as setting forth good defenses to the suit as originally framed; and while the amendments to the answer were rejected, and therefore never became a part of the original plea so as to make the entire plea as amended subject to a motion to dismiss in the nature of a general demurrer, the plea would have become so subject instantly upon the allowance of the amendments which the defendant insisted upon, and upon the refusal of which he assigns error. It thus appears from the entire record that the correct legal result was reached, and that the defendant was not harmed by the irregular procedure adopted in attaining it.
Error from Superior Court, De Kalb County; John B. Hutcheson, Judge.
Action by the Franklin Motor Car Company against J. L. Hoffman. Judgment for plaintiff, and defendant brings error. Affirmed.
Harwell, Fairman & Barrett, of Atlanta, for plaintiff in error.
Smith, Hammond & Smith, of Atlanta, for defendant in error.
Proceedings were had in this case in the following chronological order:
(1) Franklin Motor Car Company filed suit against J. Leon Hoffman to the February term, 1923, of the superior court of De Kalb county, upon plain, ordinary promissory notes, the consideration of which was not disclosed in the suit. Each note, however, contained a statement that it was one of a series of notes secured by a "title contract."
(2) At the appearance term the defendant filed an answer admitting the execution of the notes sued upon, alleging that they were executed for the purchase price of an automobile, and setting up what in this case we will treat as sufficient pleas, to the suit as originally filed, of fraud and failure of consideration. The alleged fraud related only to the condition of the car. It was alleged that the car was worthless. The plea alleged also, certain facts which the plaintiff in error, the defendant in the court below, has sought to sustain in this court alternatively; that is, either as a plea of mutual rescission of the contract, or of accord and satisfaction, the same being contained in paragraph 11 of the answer as follows:
(3) When the case was called for trial at a subsequent term of court, the plaintiff offered and the court allowed an amendment to the petition, adding thereto a copy of the contract referred to in the notes sued on, and averring that such contract was executed by the defendant contemporaneously with the notes. The contract set out in the amendment contained the following stipulation:
"The vendor does not warrant said property, and makes no representation concerning same except that the title to same is in the vendor and free from incumbrances."
The notes were described in the contract conformably with the averments of the original petition.
(4) Thereupon the defendant offered two amendments, the first of which, in connection with additional averments upon the subject of fraud and failure of consideration, included the following references to a contract executed between the parties, touching the sale:
"All of the representations were made to defendant prior to the purchase and delivery of the car, and prior to the signing of the contract to purchase and the notes therefor; that is, the notes sued on." "Defendant, * * * relying on said representations, accepted the car, signing the purchase contract, and gave his notes for same, the notes sued on."
There were also in this amendment several additional statements similar to these, signifying that the defendant had signed a sales contract, referred to by him as "the contract," "said contract," or "his contract." This amendment sought to add the following to the averments of the original plea upon the subject of rescission (or accord and satisfaction):
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