Martin Burks Chevrolet, Inc. v. McMichen, No. 51220

• Decision Date: 18 November 1975
• Docket Number: No. 51220,No. 1
• Citation: 136 Ga.App. 845,222 S.E.2d 633
• Parties: MARTIN BURKS CHEVROLET, INC. v. L. E. McMICHEN
• Court: Georgia Court of Appeals

Page 633

222 S.E.2d 633

136 Ga.App. 845

MARTIN BURKS CHEVROLET, INC. v. L. E. McMICHEN.

No. 51220.

Court of Appeals of Georgia, Division No. 1.

Nov. 18, 1975.

Rehearing Denied Dec. 3, 1975.

Albert B. Wallace, Jonesboro, for appellant.

Kirby G. Bailey, Atlanta, for appellee.

BELL, Chief Judge.

In this suit for damages based on fraudulent misrepresentation which arose out of the purchase of a used automobile, plaintiff obtained a judgment on a jury verdict.

Plaintiff's complaint alleged: 'That the defendant made false representations to Plaintiff concerning the mileage and manufacturer's warranty on said vehicle; that the defendant knew said representations were false; that said representations were made for the purpose of deceiving Plaintiff and to keep him from exercising his own judgment in signing Exhibit 'A' (sales contract); that Plaintiff relied on and was deceived by said misrepresentations; and Plaintiff has suffered loss and damage as a result thereof.' At trial, the plaintiff established that he negotiated for the purchase of an automobile with a salesman of defendant. At the time, the odometer on the car reflected that it had been driven 26,109 miles and according to plaintiff's testimony the salesman represented to him that the car was still covered by the manufacturer's five year, 50,000 mile warranty. It was also shown by plaintiff's testimony that he gave the salesman a $25.00 check in payment of the charge for transferring the warranty. After the purchase of the automobile the transmission required repairs. Plaintiff demanded that the car be repaired pursuant to the manufacturer's warranty and was refused. After this demand and refusal, the check for $25.00 was returned to plaintiff. Plaintiff established that the car in fact had been driven more than 50,000 miles which invalidated the warranty and that the odometer reading had been turned to show that the car had been driven only 26,000 miles. The sales contract, which plaintiff admitted he freely and voluntarily signed, specifically states that '. . . Purchaser agrees that this order includes all of the terms and conditions on both the face and reverse sides hereof . . . 2. Verbal promises by salesmen are not valid. Any promises or understandings not herein specified in writing are hereby expressly waived by the Buyer . . . 10. It is expressly agreed that there are no warranties, express or implied, made either by the Dealer or the manufacturer on the motor vehicle, chassis, parts or accessories furnished hereunder, unless a separate written warranty is given by the Dealer to the Buyer at the time of sale. This applies to new motor vehicles as well as used motor vehicles. The Buyer must have a written guarantee in his possession to secure an adjustment . . . 11. In case the motor vehicle covered by this Order...