Preiser v. Jim Letts Oldsmobile, Inc.

• Decision Date: 23 November 1981
• Docket Number: 62209,Nos. 62208,s. 62208
• Citation: 160 Ga.App. 658,288 S.E.2d 219
• Parties: , 33 UCC Rep.Serv. 258 PREISER v. JIM LETTS OLDSMOBILE, INC. et al. JIM LETTS OLDSMOBILE, INC. v. PREISER.
• Court: Georgia Court of Appeals

Page 219

288 S.E.2d 219

160 Ga.App. 658, 33 UCC Rep.Serv. 258

PREISER v. JIM LETTS OLDSMOBILE, INC. et al.

JIM LETTS OLDSMOBILE, INC. v. PREISER.

Nos. 62208, 62209.

Court of Appeals of Georgia.

Nov. 23, 1981.

Rehearing Denied Dec. 8, 1981, in case no. 62208.

Henry Angel, Michael Jablonski, Atlanta, for appellant (case no. 62208).

Byron Attridge, Ferdinand Buckley, David H. Cofrin, Chilton Varner, Atlanta, for appellees (case no. 62208).

Ferdinand Buckley, David H. Cofrin, Atlanta, for appellant (case no. 62209).

Michael Jablonski, Byron Attridge, Chilton Varner, Atlanta, for appellee (case no. 62209).

CARLEY, Judge.

Appellant agreed to purchase an automobile for his daughter and son-in-law, the Neumans, and authorized them to find one which would meet their needs. The Neumans began negotiations with a salesman of appellee-Jim Letts Oldsmobile (Jim Letts) and discussed the various options and equipment they were seeking, including a V-8 engine. At this time Jim Letts was apparently unaware that appellee-General Motors Corporation (GM) was manufacturing 1977 Oldsmobiles with Chevrolet engines. Consequently, no specific notice of this fact was being given by Jim Letts to its customers at the time the Neumans were looking at Oldsmobiles. The Neumans also wanted the automobile they purchased to be equipped with a sun roof. The sole probative evidence concerning the sun roof negotiations cited by appellant in a voluminous record is the testimony of Jim Letts' salesman. According to the salesman, "it was explained to [appellant's daughter and son-in-law]--as I say, they had a period of time of eight to ten weeks [within which they wanted delivery]--that we could not order them a car [from Detroit] and get it with a sun roof in it [in less than 12 to 16 weeks], but that we could get one locally." Because the salesman thought "[t]he same company that installs [sun roofs in Atlanta] installs them in Detroit [on factory ordered automobiles]," he represented to the Neumans that the sun roof they would obtain locally "would be similar" to one which would be factory-installed. Acting on this, the Neumans agreed that any automobile they purchased "would be put in at the local shop [for installation of a sun roof] in order to get the car to them earlier."

Pursuant to the understanding that they would receive an automobile with a V-8 engine and which would be equipped locally with a sun roof "similar" to the one which would be installed if factory-ordered, the Neumans agreed on March 2, 1979, to purchase a 1977 Oldsmobile Delta Royal 88 from Jim Letts. The "Retail Buyers Order" of that date specified "8-10 weeks delivery or deposit to be returned" and made no mention of a factory-installed sun roof. GM delivered the automobile to Jim Letts and Jim Letts, in turn, sent the car to a local sun roof-installer. On April 25, 1977, the Neumans accepted delivery of the automobile from Jim Letts. Appellant supplied the funds for the purchase and the automobile was titled in his name. The "Retail Buyers Order" of April 25, 1977, reflects, under the heading "Dealer Installed Equipment" the following notation: "[$]898.00 Add Astro Roof." The evidence is in conflict on the issue of what information was relayed to the Neumans concerning the V-8 engine in their automobile prior to delivery and acceptance. According to Jim Letts' salesman, he orally informed the Neumans prior to their acceptance of the vehicle that it contained an engine manufactured by Chevrolet. The Neumans and appellant assert, however, that no notification of this fact was made to them until some time after delivery and acceptance at which time they received copies of the invoice, across the face of which had been typed: "This vehicle produced with a non Oldsmobile engine."

Thereafter, on September 15, 1977, the vehicle was ostensibly abandoned on Jim Letts' premises. On September 20, 1977, appellant made a written demand on Jim Letts to "do one of the following things: 1. Repair the sun roof under warranty and replace the engine with an Oldsmobile engine[;] 2. Rescind the sale, take the car back, and refund the full purchase price...[;] 3. Replace the car with a properly operating comparable vehicle with an Oldsmobile engine." On September 21, 1977, Jim Letts replied, asserting that the automobile had been purchased with "full knowledge" that it contained a Chevrolet engine, that although the warranty on the sun roof was from the independent contractor who had installed it Jim Letts had nevertheless made the necessary arrangements to have it repaired, and that Jim Letts, having disclaimed all warranties on the car, any claims predicated upon a breach of warranty were properly directed to GM.

On November 30, 1977, appellant filed the instant multicount complaint against Jim Letts and GM. Six counts were directed against Jim Letts and GM jointly and sounded in fraud, misrepresentation and breach of express and implied warranties. These six counts were premised upon the fact that the automobile contained neither an Oldsmobile engine nor an Oldsmobile factory-installed sun roof. The remaining three counts of the complaint were directed solely against Jim Letts. Two of these counts alleged damages to the interior of the car while in Jim Letts' possession and the third asserted a violation of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C.A. § 1901 et seq. Jim Letts and GM moved for summary judgment. GM was granted summary judgment as to all claims against it. Jim Letts was granted partial summary judgment as to some claims and denied summary judgment as to others. In Case Number 62208 appellant appeals from the order of the trial court insofar as it granted summary judgment to Jim Letts and GM. In Case Number 62209 Jim Letts cross-appeals insofar as the order of the trial court denied it summary judgment on the remaining claims of appellant's complaint. We deal first with the issues raised in the main appeal.

Case Number 62208

1. Appellant argues that it was error to grant GM summary judgment on his claim that there was a fraudulent misrepresentation concerning the engine in the vehicle. Appellant urges, essentially, that he purchased the automobile under representations that it was an Oldsmobile and GM fraudulently concealed the fact that it contained a Chevrolet engine. "To support an action of deceit on the grounds of failure to disclose a material fact, the evidence must show that there was a concealment of a material fact, that such concealment was done to induce another to act and that it was done in such a manner as to deceive and mislead." Jackson v. Smith, 94 Ga.App. 697, 701, 96 S.E.2d 193 (1956). In support of the position that it pierced appellant's pleadings and was properly granted summary judgment as to this count, GM asserts that the evidence demonstrates that there was no concealment of the fact that the vehicle contained a Chevrolet engine and that appellant bought the automobile with this knowledge. In this argument GM relies upon the fact that the Neumans and appellant received a copy of the invoice with the notation: "This vehicle produced with a non Oldsmobile engine." We believe that GM's reliance upon this document and notation is misplaced, at least insofar as the fraud count for damages is concerned. The evidence is undisputed that this document was not received until some time subsequent to the final delivery of the car to the Neumans and acceptance by them. "An independent action in tort based on fraud and deceit arising out of contract is not a suit for the violation of the contract but involves affirmance of the contract and the defrauded party may keep the benefits of the contract and maintain the action for the damages sustained by reason of the fraud." Gem City Motors v. Minton, 109 Ga.App. 842, 137 S.E.2d 522 (1964). Thus, where as here, the alleged fraud was the concealment of a material fact which induced a contract, the tort of fraud is complete when the contract is executed and cannot, as GM urges, be obviated by a post-contract representation of the true facts. "Wilful misrepresentation of a material fact, made to induce another to act, and upon which he does act to his injury, will give a right of action..." (Emphasis supplied.) Code Ann. § 105-302. It is GM's actions or inactions before, not after, the contract was consummated that are important in determining its liability for fraud. GM also asserts that the fact that some of its Oldsmobiles contained Chevrolet engines was well publicized prior to the delivery of the vehicle to the Neumans. However, we are unable to say, on the record before us, that this alone demonstrates that, as a matter of law, there was a lack of diligence on the part of appellant or the Neumans to discover the concealment in such time as to protect against loss, if any. See generally Braselton Bros. v. Better Maid Dairy Products, 222 Ga. 472, 150 S.E.2d 620 (1966).

Nor can we agree that GM's evidence pierced appellant's pleadings as to damages resulting from the alleged fraud. "[T]he measure of damages would be the difference between the value of the thing sold at the time of delivery and what would have been its then value if the representation made by the defendant had been true." (Emphasis supplied.) Millirons v. Dillon, 100 Ga. 656(2), 28 S.E. 385 (1897). The evidence relied upon by GM as demonstrating that appellant suffered no damage from the alleged concealment of the Chevrolet engine relates solely to the resale value of the Oldsmobile, not its value at the time of delivery. See Murdock v. Godwin, 154 Ga.App. 824, 269 S.E.2d 905 (1980). We are cited to no evidence which would demonstrate that, as a matter of law, at the time of delivery the Oldsmobile with a Chevrolet engine was of equal value to an Oldsmobile with an Oldsmobile engine. At trial proof of damages will be an element of appellant's case but on summary judgment the burden was on GM to show that no...