Rountree v. Davis
| Decision Date | 13 May 1954 |
| Docket Number | No. 35176,No. 2,35176,2 |
| Citation | 90 Ga.App. 223,82 S.E.2d 716 |
| Parties | ROUNTREE v. DAVIS |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The general grounds are not meritorious.
2. The special grounds are without merit for the reasons given in division 2 of this opinion.
Herbert G. Davis (defendant in error here) will hereinafter be referred to as the plaintiff. Mickey Rountree (plaintiff in error) will hereinafter be referred to as the defendant, and Dealer's Discount Corporation will be referred to as the discount corporation. The defendant was a dealer who mainly buys and sells used cars. Omitting the formal parts, the petition alleges substantially in paragraph 4, that the action was brought in the superior court as a court of equity to avoid a multiplicity and circuity of actions and so that the superior court, having all the parties before it, may pursuant to the provisions of the declaratory statute, determine all the rights and liability of the parties.
In paragraph 5 it is alleged that, on or about March 17, 1953, the plaintiff contacted the defendant for the purpose of trading the plaintiff's Chevrolet Fleetline two door passenger automobile as part of the purchase price for a 1953 Plymouth Belvedere model automobile.
In paragraph 6 it is alleged that, after considerable negotiations and several representations were made by the defendant, which representations were material and false, the defendant induced the plaintiff to enter into a contract with the plaintiff. The defendant agreed to transfer his Chevrolet to the defendant and buy from him the Plymouth.
In paragraph 7 it is alleged that the fraudulent representations made by the defendant were: that the Plymouth was a 'brand-new' car which had been bought by the defendant from a Plymouth dealer, when in truth and in fact the defendant knew that the Plymouth was not new, that it had been run and used before and physically damaged and wrecked, so that it had to be and was straightened out and repainted and had in fact been obtained by the defendant at an automobile auction to which auction the Plymouth had been brought by a used-car dealer, all to the plaintiff's hurt and damage.
Paragraph 8 alleges that the defendant, in order to induce the sale to the plaintiff, falsely misrepresented to the plaintiff that the defendant was selling the Plymouth to the plaintiff for exactly the same price that would be charged by a Plymouth dealer for a new Plymouth such as the one the defendant was selling to the plaintiff. But the price which a Plymouth dealer would have charged for the Plymouth in question at the time and place of the sale before being used and before being wrecked and damaged was the total sum of $2,532.20. But the defendant charged the plaintiff $3,164.66; this amount being $632.46 more than the price should have been.
In paragraph 9 it is alleged that, upon discovering the foregoing itemized fraud and damage to the plaintiff, he promptly returned the Plymouth to the defendant and demanded the return by the defendant to the plaintiff of the Chevrolet which had been traded and surrendered by the plaintiff as part of the purchase price for the Plymouth.
In paragraph 10 it is alleged that the defendant acted in bad faith, and the plaintiff seeks to recover a reasonable sum as expenses and attorneys fees.
In paragraph 11 it is alleged that the plaintiff, in order to finance a portion of the purchase price of the Plymouth, obtained a loan of $2,232.25 with the discount corporation.
In paragraph 12 it is alleged that the discount corporation charged the plaintiff more for making the said loan than the law permits, and that the contract is usurious.
In paragraph 13 it is alleged that the discount corporation took possession of the Plymouth about March 21, 1953, without the plaintiff's consent and without legal right, and since that time has illegally refused to surrender the Plymouth to the plaintiff.
In paragraph 14 it is alleged that, by reason of the discount corporation retaining the Plymouth and converting it, the discount corporation has lost and destroyed any right it had or may have had under the loan contract with the plaintiff.
In paragraph 15 it is alleged that, on or about April 9, 1953, the discount corporation began a proceeding against the plaintiff in the City Court of Savannah, and on May 4, 1953, obtained an order whereby the sale of the Plymouth was to be carried out under such proceedings. Such proceedings are 'wrongful and illegal.'
In paragraph 16 the plaintiff shows that, by reason of the foregoing facts, he has been wrongfully and fraudulently deprived of the Chevrolet, of the value of $912.57, and the use of the Chevrolet; that the plaintiff has been harassed and put to a great deal of expense for which he asks redress.
In paragraph 17 it is alleged that the conduct of the defendant and discount corporation has been related and connected and it is asked that the superior court properly decide and give effect to the plaintiff's rights, and should have both the defendant and the discount corporation before it so that a full and complete remedy can be provided and full justice obtained by the plaintiff.
In paragraph 18 it is alleged that, in order to preserve the status of the parties and the property involved, it will be necessary and proper that the defendant he restrained from disposing of the Chevrolet and the discount corporation be restrained from proceeding to sell the Plymouth until the court can properly investigate and determine and declare the rights of the plaintiff.
The prayers are: (1) for process; (2) that the defendant be restrained from selling, disposing of, or using the Chevrolet; (3) that the discount corporation be restrained and enjoined from proceeding against the plaintiff in the City Court of Savannah to sell the Plymouth; (4) that the plaintiff's rights against the defendant and the discount corporation be declared by the court; (5) that the plaintiff have judgment against the defendant for the Chevrolet and such damages and expenses as the plaintiff is entitled to recover; (6) that the loan contract covering the Plymouth be canceled in equity, and that the discount corporation be required to deliver up the contract and all related papers so that same may be canceled by a decree of the court; (7) for such other and further legal and equitable relief as the court deems meet and proper.
The court passed the following order: (1) Let the action be filed; (2) the defendant is restrained from disposing of or using the Chevrolet pending further order of the court; (3) the discount corporation and its agents are restrained from proceeding.
The defendant filed the following answer: (a) Paragraph 4 is admitted except as to the legal conclusions, and in addition it says that this paragraph is duplicitous; (b) that paragraph 5 is admitted; (c) paragraph 6 admits that the plaintiff bought the Plymouth after considerable negotiations, but denies that the plaintiff made any false and material representations to induce the plaintiff to purchase; (d) paragraph 7 is denied, and for further answer it is alleged that the plaintiff, accompanied by his wife, tried out the Plymouth on four occasions prior to the final consummation of the sale. The plaintiff knew the mileage on the Plymouth. He inspected the Plymouth and used it. The plaintiff voluntarily called the defendant to the defendant's place of business after business hours in order to consummate the sale. The plaintiff retained possession of the Plymouth after it was financed by the discount corporation. The plaintiff knew his contract would not be accepted by the C. I. T. and M. A. Russell, for the reason that the plaintiff desired to pay only $65 per month.
Paragraph 8 is denied, and it is further alleged that the defendant sold the Plymouth to the plaintiff for the price less than the price which would be quoted by a new-car dealer for the same Plymouth.
Paragraphs 9, 10, and 11 are denied, and further answering the defendant alleges that all of the negotiations with reference to financing the Plymouth were between the plaintiff and the discount corporation, the defendant merely going with the plaintiff for the purpose of showing the plaintiff the office of the discount corporation.
Paragraph 12 is neither admitted nor denied for lack of information.
[90 Ga.App. 227] Paragraph 13 is neither admitted nor denied for want of information, and it is further alleged that the plaintiff left the Plymouth at the defendant's place of business and notified the discount corporation, which sent and took possession of the Plymouth. From that time the defendant had no knowledge of what transaction had transpired between the plaintiff and the discount corporation.
Paragraphs 14, 15, 16, and 17 are denied.
Paragraph 18 is denied, and further answering it is alleged that the defendant does not have possession of the Chevrolet, it having been sold in the regular course of business prior to the institution of this suit. And further answering paragraph 18, the defendant alleges: that on March 21, 1953, the plaintiff through his attorney filed a bail-trover suit in the City Court of Savannah and all questions concerning the title or the right of possession of the Chevrolet as between the parties was fully and completely settled after a thorough investigation by the parties and the attorneys; that after said investigation, the trover suit was dismissed upon the defendant paying the court costs to the plaintiff's attorney in the City Court of Savannah; that this transaction was a complete accord and satisfaction between the parties as to their respective rights, and no fact or circumstance has arisen since the accord and satisfaction.
The court directed a verdict in favor of the discount corporation, it appearing that by agreement the Plymouth was sold to satisfy the debt of the discount corporation....
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