Metro Chrysler-Plymouth, Inc. v. Pearce
| Decision Date | 29 May 1970 |
| Docket Number | 2,No. 44989,Nos. 1,INC,3,CHRYSLER-PLYMOUT,44989,s. 1 |
| Citation | 175 S.E.2d 910,121 Ga.App. 835 |
| Parties | METROv. Jack PEARCE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. A substantial issue of material fact appearing, the motion for summary judgment was properly denied.
2. (a) A counterclaim to a bail trover action for the wilful and malicious swearing out of the bail process is premature, since there has been no termination of the main action, and is subject to a motion to strike or to dismiss.
(b) Inclusion as a part of the damages sought in the counterclaim an amount alleged to be the fair rental value of the automobile seized under the trover process does not keep the counterclaim from being subject to a motion to dismiss.
(c) If the defendant in the trover action prevails therein, he may, in that action, seek recovery of the rental value of the automobile during the time he was wrongfully deprived of it.
(d) There can be no recovery of damages both for the punishment of the wrongdoer for his trespass or injury attended by aggravating circumstances, and for deterring him from repeating the trespass or injury.
Metro Chrysler-Plymouth, Inc., appellant, brought on August 19, 1968, an action in trover in the Civil Court of Fulton County against Jack Pearce, appellee. The defendant answered, denying the material allegations of the trover action, and in the answer further alleged that the automobile was purchased by defendant appellee for a purchase price of $5,458.42, pursuant to a contract attached to his answer. This contract dated August 9, 1968, was in the form of an order for the automobile in question, showing an allowance for the automobile traded in by the appellee in the amount of $1,250 and a balance of $4,208.42 payable in 36 instalments of $146.79 with the first payment due in '45 days.' The order was signed by the appellee. To the left of the signature of the appellee was a signature line with 'salesman' printed underneath. This line bore a signature. Underneath this line was the printed word 'approved' with a signature line following and printed underneath this line 'this order is not valid unless signed and accepted by dealer.' Immediately underneath this was the printed word 'Bt' with a line following and underneath this line the words 'subject to satisfactory credit rating.' Across these lines appear three initials with a circle around them, apparently the initials of an authorized agent of the appellant. The answer alleged that no payment was past due and one would not be due until 45 days after August 9, 1968. In addition to the answer, the appellee also filed a cross complaint 1 or counterclaim alleging that on August 9, 1968, he executed all documents necessary for the purchase of the automobile and delivered to the appellant the trade-in automobile and carried the purchased vehicle home with him upon the understanding that he was later to pick up the tag and title, which he has not yet received; and that, subsequently, a salesman demanded from appellee an additional amount of $500 or $535 and that when appellee's wife went down to pick up the tag and title, the appellant tried at that time to repossess the vehicle and subsequently tried to pick up the vehicle at the defendant's house.
The counterclaim seeks to recover $15 per day as a fair rental for the vehicle, alleged to have been in the defendant's possession from August 23, 1968, and to recover damages against the appellant because it had 'wilfully and maliciously sworn out a bail process 2 solely for the purpose of depriving the defendant of the use of his property and not because of any threat of concealment or removal from the property.' The appellant's motion to dismiss the cross-complaint or counterclaim was denied, as well as the appellant's motion for summary judgment.
The evidence of appellee on the motion for summary judgment disclosed that after the order had been signed by all the parties and credit information given to the appellant, the automobile was subsequently delivered livered to the appellee after the executed a conditional sale contract and other papers. This contract and other papers were not introduced into evidence. When the car was picked up, the salesman and sales manager informed appellee that everything had been checked, including the credit information, and that the transaction was complete except for the payment book which would be mailed to the appellee. No tender of any sort for any sums paid or the value of the traded-in automobile, or the traded-in automobile has been made to the appellee. It further appeared that all payments have been promptly tendered to the appellant as they matured and refused by it. The appellee's affidavits further affirmatively stated that appellee had never had any credit problems and his credit had always been good. An affidavit of the manager of the appellant stated the title to the automobile was in the appellant according to the manufacturer's statement of origin of a motor vehicle, which was attached to the affidavit, and the affidavit further stated that title had never been transferred out of appellant and that on August 13, 1968 'defendant's credit was not approved by the Citizens & Southern National Bank,' which refused to purchase the conditional sale contract executed by defendant pursuant to the order, and that on 'August 3, (sic) 1968,' and August 30, 1968, 'Chrysler Credit Corporation refused to purchase a conditional sale contract executed by the defendant,' but 'did agree to purchase a conditional sale contract and finance the automobile' involved here 'provided defendant put up an additional $500,' presumably on the purchase price so as to reduce the balance to be financed. This affidavit further contained the statement: 'That defendant did not have a satisfactory credit rating which would enable him to finance the purchase of the said vehicle under the terms and conditions provided for in the' order form referred to above. From a denial of plaintiff's motion for summary judgment and from a denial of its motion to dismiss defendant's counterclaim, plaintiff appeals.
Levine & Cohn, Morton P. Levine, Smith, Cohen, Ringel, Kohler Martin & Lowe, Sam F. Lowe, Jr., Atlanta, for appellant.
Scott Walters, Jr., East Point, for appellee.
1. Assuming, without deciding, that the condition attached to the acceptance of the order was sufficiently definite to be enforceable and that, as contended by appellant, it meant a credit rating satisfactory to appellant, the appellant was nevertheless not entitled to a summary judgment, as the evidence did not demand a finding in the appellant's favor on the only theory advanced, that is, that appellant was authorized to rescind the contract because the condition of acceptance had not been met.
(a) The burden was upon the plaintiff, it being the movant in the motion for summary judgment, to prove its right to repossess the vehicle, even though it had title thereto. The evidence is undisputed that all payments had been tendered and refused. The evidence is undisputed that appellant's salesman and manager reported to the appellee that the credit rating was satisfactory, pursuant to which the final papers were executed and the automobile delivered to the appellee. Under these circumstances, the appellant was not authorized to rescind the contract on the basis that the credit rating had not been approved. That subsequently the appellant was unable to sell the conditional sale contract at all, to one prospect or to another, without an additional down payment does not, even standing alone, demand a finding that there was lack of a 'satisfactory credit rating,' but on the contrary, as to prospective purchaser, tends to show that the credit rating was satisfactory and that income was the factor involved inasmuch as the Chrysler Corporation was willing to finance the balance if it was reduced by $500 more down payment on the purchase price. Nor was the dealer's ability to sell the contract made a condition of the contract. If purchase or refusal to purchase the contract, as made, by a banker or financial institution had been the condition, a different question would be made. It is noted that Chrysler Corporation refused on two dates. One date was August 3, 1968, before any papers were signed or the signed offer of purchase of the automobile was submitted to the appellant. This may be an error in dates. If it is correct, then this first refusal of Chrysler was known before the offer to purchase was actually made. The last refusal of Chrysler to finance was not an absolute refusal and this was done on August 30, 1968, 11 days after the trover suit was filed. This action could certainly not be a basis for the appellants' rescission of the contract and the filing of the suit prior to its occurrence. Irrespective of these factors, however, and even if the evidence offered by the appellant be sufficient to authorize a finding of a lack of satisfactory credit rating, it does not demand such a finding in view of the uncontradicted evidence that the salesman and the manager of plaintiff appellant stated that the credit was satisfactory and closed the sale. The jury issue here is apparent.
(b) Secondly, the evidence shows without contradiction that no tender or offer to return the benefits received by the appellant have been made. In order to rescind this must be done. Bridges v. Barbree, 127 Ga. 679(4), 56 S.E. 1025.
2. The defendant's counterclaim is premature and the motion to dismiss should have been sustained.
The counterclaim nere supplants what for a long time we have designated as a cross action. It is separate from his answer and is an affirmative claim which the defendant seeks to set up and assert against the plaintiff for malicious use of process. There are five numbered paragraphs in the counterclaim, followed by prayers for the recovery of damages. Included in it is the...
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