Stephens v. Crittenden Tractor Co.

• Decision Date: 24 May 1988
• Docket Number: No. 75842,75842
• Citation: 187 Ga.App. 545,370 S.E.2d 757
• Parties: , 7 UCC Rep.Serv.2d 724 STEPHENS v. CRITTENDEN TRACTOR COMPANY.
• Court: Georgia Court of Appeals

Page 757

370 S.E.2d 757

187 Ga.App. 545, 7 UCC Rep.Serv.2d 724

STEPHENS v. CRITTENDEN TRACTOR COMPANY.

No. 75842.

Court of Appeals of Georgia.

May 24, 1988.

Rehearing Denied June 15, 1988.

Richard A. Childs, Columbus, for appellant.

Jesse G. Bowles III, Cuthbert, for appellee.

SOGNIER, Judge.

Crittenden Tractor Company brought suit on open account against John Stephens for sums due under a contract for purchase of a used combine and other equipment. Stephens answered and counterclaimed against Crittenden for breach of warranties of fitness for a particular purpose and merchantability, alleging that the equipment he purchased from Crittenden failed to operate properly or was not repaired adequately and that he had sustained damages as a result thereof. At the close of evidence, the trial court directed the jury to return a verdict in favor of Crittenden on its main claim and against Stephens on his counterclaim. Stephens appeals.

Evidence adduced at trial revealed that appellant accepted a price quotation from appellee to purchase a used Allis-Chalmers combine along with both a used corn head and a used floating grain head for the combine. The price quotation was contained in a document filled in by appellee's agent that set forth both the price and the terms of the "used equipment warranty" on the equipment, namely, a 20% discount on all repair parts until the end of the 1985 soybean harvest and free labor on major failures such as engine and transmission. The parties subsequently signed an equipment purchase contract for the used equipment which contained, in boldface print, appellant's agreement that he had read the warranty and conditions in the document and that he understood his copy of the document "to be the entire agreement relating to the sale and warranty of the above described machinery. The warranty does not apply to used machinery included in this order whether or not designated as such." While most of the equipment purchase contract consisted of terms applicable only to the "Company," i.e., Allis-Chalmers, a party not involved in the sale of the used equipment, the document did contain one provision, in Paragraph G, which specifically addressed appellee, as "Dealer." Paragraph G provided: "NO DEALER WARRANTY The selling Dealer makes no warranty of his own on any equipment warranted by Company, and makes no warranty on other items unless he delivers to purchaser a separate written warranty specifically warranting the item. The Dealer has no authority to make any representation or promise on behalf of Company or to modify the terms or limitations of this Warranty in any way." (Emphasis supplied.) Within a day or two after appellant took the combine and the corn head to his farm he began to experience numerous problems with the equipment which hampered his attempt to harvest his corn crop. Appellee was called upon repeatedly to service the equipment. The corn crop was eventually harvested with a combine provided free of charge as a test model by its manufacturer. However, when appellant subsequently sought to use the combine with the floating grain head to harvest his soybean crop, appellant was unable to use the grain head because mechanical difficulties prevented the grain head from properly "floating" so as to conform with the contours of the land and thereby to collect the soybean crop. Appellant borrowed a neighbor's grain head to harvest the soybeans. The evidence was in sharp conflict over repairs to the grain head in that appellee asserted the grain head was repaired while appellant denied the head was ever operable. Appellant further testified that the combine itself developed such severe problems it could no longer safely be operated. At trial the evidence was uncontroverted that appellee never charged appellant any sums for any of the labor expended to service the used equipment and appellee gave appellant a 20 percent discount for repair parts not associated with normal wear and tear on the used equipment.

1. Appellant contends the trial court erred by directing a verdict in favor of appellee on his counterclaims for appellee's breach of express and implied warranties. We note that appellant, through counsel, expressly waived any claims based on implied warranties during trial, a position consistent with the parties' pre-trial order. Thus, we address only appellant's arguments that appellee (a) breached the express warranty to repair by failing to repair the equipment in a timely fashion and (b) breached an express warranty to deliver the equipment in good condition pursuant to the provisions of OCGA § 11-2-313.

(a) We agree with appellant that there was evidence to support a finding that the "used equipment warranty" in the purchase order, providing that appellee would provide free labor on major failures, constituted a "separate written warranty" under Paragraph G of the equipment purchase contract not otherwise subject to the disclaimer of warranty contained therein. We further agree with appellant that the express warranty to provide free labor was an express warranty to repair, or at least service, the purchased equipment. In the absence of any language specifying the time for making such repairs, the warranty was thus subject to the provision of OCGA § 11-2-309(1) imposing a "reasonable time" requirement on action taken pursuant to this warranty. Reviewing the evidence presented at trial, it is apparent that the timeliness of appellee's repairs of the used equipment was a hotly contested issue, with both parties presenting conflicting evidence as to the number of times the equipment was serviced, the efficacy of the servicing, and the timeliness of the repairs in view of the status of the crops to be harvested.

"A jury issue is ... presented regarding a reasonable time allowed a seller to comply with the warranty provision of a sales contract. [Cit.]" Hub Motor Co. v. Zurawski, 157 Ga.App. 850, 851(1), 278 S.E.2d 689 (1981). See also Hightower v. Gen. Motors Corp., 175 Ga.App. 112, 114(2), 332 S.E.2d 336 (1985). "Where there is 'some evidence,' or 'any evidence' supporting the respondent's assertions, disputed issues are created which are for jury resolution. [Cit.]" Grabowski v. Radiology Assoc., 181 Ga.App. 298, 301(3), 352 S.E.2d 185 (1986). Thus, we reverse the trial court's grant of a directed verdict to appellee on appellant's counterclaim insofar as the alleged breach of warranty to repair timely the purchased equipment is involved.

(b) Appellant also alleges there is a question of fact whether appellee breached an express warranty appellant contends existed pursuant to OCGA § 11-2-313. OCGA § 11-2-313(1) provides: "Express warranties by the seller are created as follows: (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description." Appellant argues that oral representations made to him by one of appellee's employees and its president that the used equipment would be sold in "working" condition constituted an express warranty under OCGA § 11-2-313. Appellant argues that parol evidence in the form of trial testimony by appellee's president and the employee in agreement with appellant's contention that the equipment would be sold to appellant in "working" condition established conclusively the existence of this warranty. However, under the clear and unambiguous language in Paragraph G of the equipment purchase contract signed by appellant, no warranty could be made by the dealer, i.e., appellee, on the used equipment in the absence of a separate written warranty specifically warranting the item. The contract also explicitly provided that appellee could not modify the terms or limitations of the warranty document. Thus, appellant was on notice that appellee could offer a warranty on the used equipment only to the extent such warranty was contained in a separate written warranty and in the absence of any ambiguity, parol evidence was not admissible to add to, take from, or vary the terms of the written contract. See Rigg v. New World Pictures, 183 Ga.App. 446, 448(2), 359 S.E.2d 207 (1987). The parol evidence from appellee's president and employee, though admitted without objection, was nevertheless without probative value to vary the terms of the written contract. Cooper v. Vaughan, 81 Ga.App. 330, 337-338, 58 S.E.2d 453 (1950); Waters v. Lanier, 116 Ga.App. 471, 474-475, 157 S.E.2d 796 (1967). Evidence at trial established that the only document that could be construed as a separate written warranty under Paragraph G was the "used equipment warranty" in the purchase order which contained no warranty that the equipment would work, but only provided that the equipment would be repaired with free labor and with discounted repair parts.

Notwithstanding the language in Paragraph G of the equipment purchase contract, appellant argues the express warranty that the used equipment be in "working" condition that he claims was created by oral representations here could not be negated by the disclaimer in the contract,...