Rogers-Farmer Metro Chrysler-Plymouth, Inc. v. Barnett, ROGERS-FARMER

• Decision Date: 25 January 1972
• Docket Number: INC,No. 1,CHRYSLER-PLYMOUT,ROGERS-FARMER,No. 46607,46607,1
• Citation: 125 Ga.App. 494,188 S.E.2d 122
• Parties: , 10 UCC Rep.Serv. 792 METROv. Joseph H. BARNETT
• Court: Georgia Court of Appeals

Page 122

188 S.E.2d 122

125 Ga.App. 494, 10 UCC Rep.Serv. 792

ROGERS-FARMER METRO CHRYSLER-PLYMOUTH, INC. v. Joseph H. BARNETT.

No. 46607.

Court of Appeals of Georgia, Division No. 1.

Jan. 25, 1972.

Rehearing Denied Feb. 17, 1972.

Powell, Goldstein, Frazer & Murphy, Randall L. Hughes, B. D. Murphy, Atlanta, for appellant.

Baker & Bailey, Kirby G. Bailey, Atlanta, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

Under the undisputed facts shown on motion for summary judgment, this case is cotrolled adversely to the appellee by the decisions in Holbrook v. Capital Automobile Co., 111 Ga.App. 601, 142 S.E.2d 288; Brown v. Ragsdale Motor Co., 65 Ga.App. 727, 731, 16 S.E.2d 176; Butts v. Groover, 66 Ga.App. 20, 16 S.E.2d 894. The purchase order, signed by appellee, after the alleged fraudulent misrepresentation as to mileage was made, reads in part as follows: 'Buyer acknowledges he has read and received a printed copy of this order comprising the entire agreement affecting this purchase . . . No warranties, expressed or implied, are made by the dealer with respect to used motor vehicles or motor vehicle chassis furnished hereunder except as may be expressed in writing by the dealer for such motor vehicle or motor vehicle chassis, which warranty, so expressed in writing, is incorporated herein and made a part hereof . . . In case the vehicle covered by this order is a used vehicle, no warranty or representation is made as to the extent vehicle has been used, regardless of the mileage shown on the speedometer of said used vehicle.'

Accordingly, the denial of the summary judgment for the defendant appellant must be reversed.

Judgment reversed.

HALL, P.J., and EBERHARDT, QUILLIAN and CLARK, JJ., concur.

BELL, C.J., JORDAN, P.J., and DEEN and EVANS, JJ., dissent.

DEEN, Judge (dissenting).

Barnett bought an automobile from the defendant Chrysler-Plymouth dealer which had an odometer reading of 26,700 miles. He was assured that the car was still subject to the 50,000 Chrsyler-Plymouth warranty and 'had about 25,000 miles left.' In fact, as shown by the affidavit of the former owner who had traded it in on a new car, at the time the defendant took it in the odometer reading was 49,700. Construing the evidence against the dealer's motion for summary judgment as we must, it is obvious that an inference arises that the mileage was turned back while the car was in the defendant's possession being readied for resale and that the dealer may have done so.

The plaintiff is suing for a repair bill for a defect which, if the warranty were in effect as represented, it would have been the responsibility of the seller to remedy.

There is thus an unresolved issue of actual fraud on the part of the seller in misrepresenting the nature and quality of the goods sold, both by the representations of the salesman and by physically changing the odometer reading. Used car dealers must be licensed (Code Ann. Ch. 84-39), and may both lose their license and be subject to misdemeanor conviction for fraud or fraudulent practice or untrustworthiness or performance of any dishonorable or unethical conduct likely to deceive, defraud, or harm the public. Code Ann. § 84-3911(i), (m), Code Ann. § 84-9965. On the defendant's motion for summary judgment I find a fact issue as to whether the overt and affirmative misrepresentation, if made, was not a fraudulent, criminal act reliance on which was the cause of the purchase of this vehicle by the plaintiff.

The majority opinion, however, by citing Brown v. Ragsdale Motor Co., 65 Ga.App. 727, 16 S.E.2d 176 indicates it is following the rule (established prior to the Uniform Commercial Code)...