Rigdon v. Walker Sales & Service, Inc.

• Decision Date: 02 March 1982
• Docket Number: No. 62965,62965
• Citation: 288 S.E.2d 711,161 Ga.App. 459
• Court: Georgia Court of Appeals
• Parties: RIGDON et al. v. WALKER SALES & SERVICE, INC.

Page 711

288 S.E.2d 711

161 Ga.App. 459

RIGDON et al. v. WALKER SALES & SERVICE, INC.

No. 62965.

Court of Appeals of Georgia.

March 2, 1982.

J. Laddie Boatright, Hazlehurst, and M. Theodore Solomon, Alma, for appellants.

George L. Hoyt, Alma, for appellee.

POPE, Judge.

Appellee brought this action against appellants to recover a deficiency judgment on a retail installment sales contract after voluntary repossession. The trial court struck one of appellants' defenses and thereafter granted appellee's motion for summary judgment. Appellants enumerate as error both of these rulings by the trial court.

The record shows that appellants purchased from Alma Tractor & Equipment Company a new 1976 GSH tobacco combine for $8,000.00. They paid $2,400.00 down and executed a retail installment sales contract for the balance. The contract included a finance charge of $1,941.67 (annual percentage rate 16.5%) and was payable in three annual installments of $2,513.89 due on the 16th day of April in 1977, 1978 and 1979. Appellants defaulted on the contract subsequent to their payment of the 1977 installment and voluntarily relinquished possession of the combine. The combine was sold at public auction for $500.00. Appellee ¹ brought this action for recovery of the deficiency in the amount of $4,412.95 plus accrued interest and attorney fees. Proper notice was admitted by appellants as to both the collection of attorney fees and the time and place of the foreclosure sale. However, in their answer to this action appellants did set forth the following defenses: (a) breach of warranty of fitness for a particular purpose, (b) violation of the Retail Installment and Home Solicitation Sales Act, Code Ann. Ch. 96-9, and (c) an oral agreement that any defect in the combine would be fixed and, if not, the combine would be taken back by appellee in satisfaction of the debt.

1. Appellee moved to strike appellants' defense which asserted that the subject retail installment sales contract violated the Retail Installment and Home Solicitation Sales Act (hereinafter Act), Code Ann. Ch. 96-9. Appellee contended that the Act was not applicable to farm equipment such as the subject tobacco combine. We agree.

The Act "resulted from the current trend for 'consumerism,' whereby lawmakers enact protective measures which in effect have converted the caveat emptor doctrine to 'Let the seller beware,' " Bell v. Loosier of Albany, 137 Ga.App. 50, 57, 222 S.E.2d 839 (1975), vacated on other grounds, 237 Ga. 585, 229 S.E.2d 374 (1976), and is applicable to retail installment contracts involving the sale of "all personalty when purchased primarily for personal, family or household use..." Code Ann § 96-902(a)(1). Appellants admitted in their answer that the subject combine was purchased "for the purpose of gathering tobacco," a commercial farming operation. See Sumner v. Adel Banking Co., 244 Ga. 73(3), 259 S.E.2d 32 (1979); see also Pridgen v. Murphy, 44 Ga.App. 147(1), 160 S.E. 701 (1931). Moreover, the subject contract contains a division wherein the use for which the combine was purchased may be indicated; the box therein labeled "Agriculture" has been marked, rather than a box labeled "Personal." Therefore, the Act is "inapplicable to the sale of the equipment here shown although [it] cover[s] substantially identical transactions involving something for personal, family, or household use..." Smith v. Singleton, 124 Ga.App. 394, 396, 184 S.E.2d 26 (1971). Since the facts of record showed to a certainty that the Act did not apply to the subject installment sale, the trial court did not err in striking this defense. Code Ann. § 81A-112(f); see Rhyne v. Garfield, 236 Ga. 694, 225 S.E.2d 43 (1976).

2. Appellants contend that the trial court erred in granting appellee's motion for summary judgment because several material questions of fact remain unresolved.

(a) "The assertion that the [appellants] permitted repossession only on condition that it extinguish the debt, if taken as true, falls short of establishing an enforceable accord and satisfaction (see Code [Ann.] §§ 20-1201, 20-1203), for it shows nothing more than the attempted unilateral imposition without consideration of a condition contrary to the terms of the original contract recognizing the immediate right of possession upon default. The [appellants] had already legally obligated [themselves] to surrender possession upon default, and [they] agreed to do nothing more at the time of repossession. 'An agreement on the part of one to do what he is already legally bound to do is not a sufficient consideration for the promise of another.' " Barnes v. Reliable Tractor Co., 117 Ga.App. 777, 161 S.E.2d 918 (1968).

(b) As noted in Division 1 of this opinion, the Retail Installment and Home Solicitation Sales Act is not applicable to the installment sales contract in this case.

(c) "Despite logical arguments to the contrary, it is settled law in this State that the usury statutes are inapplicable to a retail installment contract as here shown, which included a stated 'Finance Charge' ... added to the cash balance to arrive at a ["Deferred Payment Price"] payable in [annual] installments." Smith v. Singleton, supra, 124 Ga.App. at 396, 184 S.E.2d 26; Sumner v. Adel Banking Co., supra, 244 Ga. 73 at (2b), 259 S.E.2d 32; E. Tris Napier Co. v. Trawick, 164 Ga. 781(1), 139 S.E. 552 (1927); Richardson v. C.I.T. Corp., 60 Ga.App. 780(1), 5 S.E.2d 250 (1939).

(d) The subject installment sales contract (the execution and genuineness of which appellants admitted) contained the following disclaimer conspicuously set forth in bold-faced type: "No representation, promise or warranty, express or impled, has been made with respect to the merchantability, suitability or fitness for purpose of the [subject tobacco combine] or otherwise unless the same is endorsed hereon in writing or is contained in a separate written instrument signed by the original Seller." There is no such written warranty in the record of this case. Therefore, as to appellants' defense of breach of warranty, the contract "met the requirements of Code [Ann.] § 109A-2-316(3)(a) and no implied warranty arose out of the transaction, either as to merchantability under paragraph (2) of that section, which is expressly subject to paragraph (3), or as to fitness for a particular purpose under Code [Ann.] § 109A-2-315, which latter section is also subject to the exclusions and modifications permissible under Code [Ann.] § 109A-2-316." Avery v. Aladdin Products Div., 128 Ga.App. 266, 267, 196 S.E.2d 357 (1973).

(e) Appellants admitted that the property described in the subject installment sales contract was "a new 1976 GSH Tobacco Combine Model B-60, Serial No B601072" and that the property they purchased from Alma Tractor and accepted delivery of was a "new 1976 GSH Tobacco Combine Model B-60, Serial No. B601072." Since appellants admitted that the combine they purchased from Alma Tractor conformed to its description in the installment contract, there is no evidence of a breach of warranty pursuant to Code Ann. § 109A-2-313(b). See Hill Aircraft etc. Corp. v. Simons, 122 Ga.App. 524(2), 177 S.E.2d 803 (1970).

(f) Appellants finally contend that a question of fact exists as to who had "title" to the subject retail installment sales contract which shows on its face that it has been assigned to Ford Motor Credit Company (hereinafter FMCC). Indeed, the record in this case indicates that Alma Tractor executed an assignment to FMCC of its "entire right, title and interest in and to the [subject] contract and the Property described therein and authorize[d] [FMCC] to do every act and thing necessary to collect and discharge obligations arising out of or incident to said contract..." This issue was not raised in the trial court but is raised for the first time on appeal.

"Every action shall be prosecuted in the name of the real party in interest." Code Ann. § 81A-117(a). "... [T]he true meaning of real party in interest may be summarized as follows: An action shall be prosecuted in the name of the party who, by the substantive law, has the right sought to be enforced." 3A Moore's Fed.Prac. 17-65, p 17.07. In an action on an installment sales contract such as the one in this case, where it appears from the contract itself that the...