Reese v. Termplan, Inc., Bolton
| Decision Date | 10 February 1972 |
| Docket Number | No. 46772,No. 2,46772,2 |
| Parties | Hilda L. REESE v. TERMPLAN, INC., BOLTON |
| Court | Georgia Court of Appeals |
David A. Webster, David G. Crockett, Atlanta, for appellant.
Richard V. Karlberg, Jr., Atlanta, for appellee.
Syllabus Opinion by the Court
The defendant, who is the buyer of a washing machine under a retail installment contract, appeals a judgment on the contract in favor of the plaintiff, the assignee of the seller. The action was tried before a judge without a jury. Held:
1. The contract is within the provisions of the Retail Instalment and Home Solicitation Sales Act, Ga.L.1967, pp. 659 et seq., as amended; Code Ann. Ch. 96-9. The defendant asserted a failure of consideration and this defense may be asserted against an assignee as here shown. Geiger Finance Company v. Graham, 123 Ga.App. 771, 182 S.E.2d 521. The defendant testified, contra to a signed delivery receipt, that the washing machine was never delivered to her, and that when she sought delivery the seller was no longer in business. While a former employee of the seller testified that in fact the machine was not delivered the trial judge excluded proffered testimony of a conversation this witness overheard between the buyer and the seller, the transcript indicating that the testimony, if allowed, would have disclosed that the buyer told the seller she did not want immediate delivery, and that the seller agreed to hold the machine for future delivery.
Defendant asserts error on the action of the trial judge in excluding testimony of the conversation as inadmissible hearsay. He contends, in respect to what the buyer said to the seller, that the witness was 'merely asked what words defendant had used, not what assertion defendant was making.' Hearsay evidence, by statutory definition in Georgia, is that which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons. Code § 38-301. What was said, to establish the fact that it was said, but not the veracity of its content, is admissible in Georgia to explain conduct and ascertain motives, not as hearsay, but as original evidence. Code § 38-302. If in fact the buyer stated to the seller she did not want immediate delivery, the fact of her statement is admissible evidence to explain conduct.
The defendant further contends that the reply of the seller would be an admission by one in privity with the plaintiff, the assignee of the contract. Under the circumstances here shown we think the seller, then in possession of the machine, sold under a retention of title contract, was in privity with the assignee and that any extrajudicial admission adverse to the prima facie signed delivery receipt (see Atlantic Coast Line Railroad Company v. Cohn & Company, 6 Ga.App. 572(1), 65 S.E. 355) would be admissible against the assignee of the contract, as evidence of nondelivery, under Code § 38-407, even though it qualifies as hearsay under Code § 38-301. See Green, The Georgia Law of Evidence (1957), §§...
To continue reading
Request your trial
-
Hines v. Good Housekeeping Shop, 62523
...the Michigan Act when it "accelerated" the entire unpaid balance due without rebating unearned interest. See Reese v. Termplan, 125 Ga.App. 473, 475(2), 188 S.E.2d 177 (1972) (interpreting analogous Georgia law). However, the contracts did not contain an "acceleration clause." Therefore, ev......
-
Bell v. Loosier of Albany, Inc., 50840
...96-97, 205 S.E.2d p. 111 (Emphasis supplied). The majority opinion did not discuss the decision of this court in Reese v. Termplan, Inc., Bolton, 125 Ga.App. 473, 188 S.E.2d 177 which held that when the maximum finance charge is charged and the seller uses an acceleration clause under the R......
-
Roberts v. Allied Finance Co., 47805
...interest rate calculated upon the contract period as foreshortened is greater than 8 percent per annum (see Reese v. Termplan, Inc., 125 Ga.App. 473(2), 188 S.E.2d 177); and, since this result is directly attributable to the exercise of the contract clause providing for acceleration of 'ins......
-
Harlow v. Walton Loan Corp.
...by suit and that an amendment to its complaint did not erase the violation. For similar reasoning see Reese v. Termplan, Inc., Bolton, 125 Ga.App. 473, 475, 188 S.E.2d 177 (1972), and Harrison v. Goodyear SVC. Stores, 137 Ga.App. 223, 224, 223 S.E.2d 261 (1976), cases involving the Retail I......