Trailmobile Division of Pullman, Inc. v. Jones, 43901

• Decision Date: 08 October 1968
• Docket Number: No. 43901,No. 3,43901,3
• Citation: 118 Ga.App. 472,164 S.E.2d 346
• Parties: , 5 UCC Rep.Serv. 1066 TRAILMOBILE DIVISION OF PULLMAN, INC. v. G. M. JONES
• Court: Georgia Court of Appeals

Page 346

164 S.E.2d 346

118 Ga.App. 472, 5 UCC Rep.Serv. 1066

TRAILMOBILE DIVISION OF PULLMAN, INC. v.G. M. JONES.

No. 43901.

Court of Appeals of Georgia, Division No. 3.

Oct. 8, 1968.

Syllabus by the Court

1.A purchaser of van trailers who proposes to use them to haul loads of soft drinks of stated size and weight, who purchases in reliance on the seller's assurance that they are suitable for this purpose, who thereafter on discovery that because of defects due to light weight construction the vans sag in the middle to the extent that it is necessary to use a forklift to open and close the doors, who immediately notifies the seller and is given assurance that the defects will be remedied, is not necessarily precluded from subsequently rejecting the vans because of continued use where, after a series of conversations in which he receives assurance that they will be fixed he eventually turns them in on the understanding that he will resume instalment payments at such time as they are returned to him in a usable condition.

2.Enumerations of error not argued, or to the subject matter of which no page reference is made either there or in brief of counsel, will not be considered.

On April 17, 1964, the defendant Jones purchased two aluminum trailers from Trailmobile.Monthly payments of $351 were made through May 20, 1965.The trailers were then picked up by the manufacturer and sold at a foreclosure sale, and the present action is for a deficiency judgment in the amount of $5,314.26.

From a verdict for the defendant, plaintiff appeals.

Cotton, Katz & White, Richard A. Katz, Atlanta, for appellant.

Murphy & Murphy, Thomas B. Murphy, Bremen, for appellee.

DEEN, Judge.

1.Insisting that its motion for directed verdict was erroneously overruled, the plaintiff contends that a showing of regular payments by the defendant over a 12 month period, plus evidence that the trailers had been used for a total of over 50,000 miles, demands the conclusion that any defense of breach of warranty or failure of consideration on the part of the buyer was waived when he continued to use the vehicles with notice of their defects, within the meaning of Code§ 109A-2-602(1) which provides: 'Rejection of goods must be made within a reasonable time after their delivery or tender.It is ineffective unless the buyer seasonably notifies the seller,' and of Code§ 109A-2-606(1) providing: 'Acceptance of goods occurs when the buyer (a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity.'There was uncontradicted testimony in 1964 when the purchase was made that the seller had shifted to construction of aluminum trailers, and that changes had subsequently been made in the model purchased by the defendant by adding additional cross-hatch supports to the frame.The defendant's testimony was that these vehicles were in exchange for two which were also of experimental construction and which had 'broken in two'; that within two months and about 10,000 miles of travel the vans here involved began sagging in the middle when loaded and the doors could not be opened; that plaintiff had to use a forklift to close the door after loading; that plaintiff, who had dealt with the defendant before, was aware of the type load for which he used the trailers, which was loads of soft drinks within legal load carrying limits, and that these vehicles were never overloaded or loaded with other, heavier materials; that he immediately notified the plaintiff and was told that the cross braces would be fixed so that sagging would be eliminated and the doors would close; that he then talked with plaintiff's agent on seven or eight occasions and continued operating the trailers on the assurance that they would be strengthened so as to carry the loads for which defendant needed them; that finally defendant talked with this agent and informed him that he was leaving them 'at Canada Dry,'plaintiff agreeing to pick them up there and have them repaired; that plaintiff did in fact pick them up; that defendant informed the plaintiff and thought it was understood that payments would be resumed at such time as the trailers were returned to him in a repaired condition; that Trailmobile was to notify him when they had been repaired; that the defendant was not notified and did not know that the trailers were in fact being sold by the plaintiff at a foreclosure sale at which the plaintiff, in the absence of other bids, bought them in and subsequently resold them after making repairs of approximately $500.

This testimony was sufficient to authorize submitting to the jury the question of breach of warranty...