Holiday Homes, Inc. v. Bragg
| Decision Date | 16 September 1974 |
| Docket Number | No. 3,No. 49490,49490,3 |
| Citation | 208 S.E.2d 608,132 Ga.App. 594 |
| Parties | , 15 UCC Rep.Serv. 622 HOLIDAY HOMES, INC. v. Ernest R. BRAGG, Jr., et al |
| Court | Georgia Court of Appeals |
Smith & Millikan, Harmon T. Smith, Jr., Troy R. Millikan, Gainesville, for appellant.
Robinson, Harben & Armstrong, Emory F. Robinson, Gainesville, for appellees.
Syllabus Opinion by the Court
Ernest R. Bragg, Jr., executed a contract with Holiday Homes of Georgia, Inc. for the purchase of a mobile home. This contract was dated January 29, 1972, and at that time the mobile home was not constructed, but was to be construed in accordance with drawings, plans and specifications presented to Holiday by Bragg in a special order. The price of same was $18,746, of which $500 was paid down. Holiday instructed Shulte Mobile Homes Corporation, the manufacturer, to have the order filled and the mobile home built in accordance with the requests of Bragg. The mobile home was subsequently built and delivered in two sections to Bragg in Hall County, Georgia, where he had a large wooded lot. Holiday contracted with another to assemble the mobile home on Bragg's rpoperty. The house was delivered in two sections. The representative of the one who was to assemble same, in company with Bragg, was on the scene at the time of delivery. The home was slightly damaged in transit from the factory and was further damaged in placing and assembling same on the lot. Bragg contends it had many other deficiencies, some of which he discovered immediately upon delivery and shortly afterwards when the utilities were connected.
In June, 1972, Bragg paid $15,000 to Holiday, leaving a balance of.$3,246 due. The parties to the contract differ as to the reasons why the entire amount was not paid, and as to the deficiencies in the construction of the mobile home and as to the corrections thereafter made and to be made.
In October, 1972, negotiations finally broke down as to the final payment of the purchase price, and as to the repairs or correction of deficiencies necessary to put the mobile home in the condition of its proposed construction.
In February, 1973, Holiday sued Bragg for the.$3,246 balance; contending it delivered the mobile home 'as is' which was a covenant in the contract with no other warranties except those of the manufacturer.
Defendant answered, admitting only jurisdiction and denying the claim or any indebtedness due to the partial failure of consideration in that plaintiff did not correct the deficiencies found in the mobile home on the defendant's lot.
After a trial, the jury found for the plaintiff in the sum of $1,000, and plaintiff appeals. Held:
1. Plaintiff contends defendant failed to notify him of the deficiencies hence under Code Ann. § 109A-2-607 (Ga.L.1962, pp. 156, 215), the court erred in admitting any testimony as to the deficiencies. But no formality is required as to notice, and it is adequate if the notice merely informs sellers within a reasonable time after the goods are received and accepted by the buyer. Warren's Kiddie Shoppe, Inc. v. Casual Slacks, Inc., 120 Ga.App. 578(2), 171 S.E.2d 643. Here, plaintiff was notified from the very beginning of certain of the deficiencies, and others as they were found in connecting the utilities. In this case there is a question of fact as to defendant's acceptance of the mobile home in the condition in which it was delivered, despite defendant's allowing it to be placed on his lot. This ground of the complaint is not meritorious. Code § 20-902; Butler & Co. v. McCall, 119 Ga. 503, 46 S.E. 647; Frick Co. v. Lawson, 50 Ga.App. 511(4), 517, 179 S.E. 274. This is not a suit on warranty, but involves partial failure of consideration in the breach of the contract both before, at, and after delivery of the mobile home.
2. While the agent of the corporation, with whom the defendant had most of his contacts, was deceased, nevertheless, the court did not err in allowing in evidence the overheard telephone conversation between the deceased and the president of the plaintiff corporation in regard to the $15,000 partial payment by the defendant. Defendant testified he recognized the president's voice in the background. Although the president testified that he was not present, this created a jury issue as to its weight and credibility. See in this connection Atlanta Northern R. Co. v. Brown, 20 Ga.App. 247(1), 248, 92 S.E. 975; New Ware Furniture Co. v....
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Jackson v. Meadows
...made known to counsel. Accordingly, the objection made at trial is abandoned as it is not enumerated as error. Holiday Homes v. Bragg, 132 Ga.App. 594, 597, 208 S.E.2d 608. And, grounds enumerated as error but not raised during trial may not be raised for the first time on appeal. Velkey v.......
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MacDonald v. MacDonald
...we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court. Holiday Homes v. Bragg, 132 Ga.App. 594, 597, 208 S.E.2d 608. We cannot consider alleged error raised for the first time in the brief (Windsor v. Southeastern Adjustors, 221 Ga......
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Long v. Marion
...time on appeal. Steverson v. Hosp. Auth. of Ware County, 129 Ga.App. 510, 513(21), 199 S.E.2d 881 (1973); Holiday Homes v. Bragg, 132 Ga.App. 594, 597(4), 208 S.E.2d 608 (1974). Conversely, where the basis urged on trial is neither enumerated as error or argued, it must be treated as abando......
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Verde v. Granary Enterprises
...prejudicial, none of them was raised before the trial court. Accordingly, we cannot consider them on appeal. Holiday Homes v. Bragg, 132 Ga.App. 594, 597(4), 208 S.E.2d 608 (1974); MacDonald v. MacDonald, 156 Ga.App. 565, 275 S.E.2d 142 (1980). 7. Appellants assert that it was error to allo......