Troutt v. Nash AMC/Jeep, Inc.

• Decision Date: 06 February 1981
• Docket Number: No. 60926,60926
• Citation: 278 S.E.2d 54,157 Ga.App. 399
• Parties: , 32 UCC Rep.Serv. 16 TROUTT v. NASH AMC/JEEP, INC. et al.
• Court: Georgia Court of Appeals

Page 54

278 S.E.2d 54

157 Ga.App. 399, 32 UCC Rep.Serv. 16

TROUTT v. NASH AMC/JEEP, INC. et al.

No. 60926.

Court of Appeals of Georgia.

Feb. 6, 1981.

Gary R. Yates, Lilburn, for appellant.

W. Howard Fowler, Lawrenceville, Donald M. Fain, Atlanta, Harold B. Thompson, Decatur, Charles M. Shaffer, Jr., Atlanta, for appellees.

BIRDSONG, Judge.

Partial summary judgment. Virginia Troutt purchased a 1978 AMC Concord in May, 1978 from Nash AMC/Jeep, Inc., a dealership in Lawrenceville, Georgia. She entered into an installment sales contract with Nash for payment of the purchase price. At the top of that document the purchaser was denominated as Troutt and the seller as Nash AMC/Jeep, Inc. The document was fully executed by Nash except that the signature of Nash as seller does not appear on the document. It was signed by Troutt. As pertinent to this appeal, paragraph 7 of the installment sales contract provided: "7. It is mutually understood and agreed that: (a) except where the property hereunder is ... subject to seller's (1) written warranty or (2) service contract entered into at the date of this contract or within 90 days thereafter, there are no implied warranties of merchantability, fitness for a particular purpose or which extend beyond the description of said property on the face hereof...." On its face the sales contract described the car as "new."

Within 30 days of the purchase and acceptance of the Concord, Ms. Troutt experienced multiple mechanical problems involving the braking system, engine overheating, the transmission, the carburetor, and all these defects affected the safe operation of the vehicle. Ms. Troutt brought the vehicle several times to Nash seeking correction of these defects. The vehicle was retained by Nash for work. When Nash sought to return the vehicle to Ms. Troutt on the last occasion, she declined delivery until the car was, in her opinion, properly repaired. Nash finally demanded that Ms. Troutt accept possession of the car or suffer storage charges. Ms. Troutt brought the present complaint in four counts, alleging wrongful conversion of the vehicle, breach of implied warranty, violation of the Truth-in-Lending Act (15 U.S.C. § 1602) and violation of Georgia Motor Vehicle Sales Finance Act (Code Ann. §§ 96-1001 et seq.). Nash counterclaimed for storage charges and denied any liability. Nash moved the trial court for partial summary judgment on Count 2 dealing with the alleged breach of implied warranty because the agreement negated any implied warranty and as to Count 4, the alleged violation of the Georgia Motor Vehicle Sales Finance Act, because Nash's failure to sign the installment sales agreement as seller as required by that Act was inadvertent rather than wilful. The trial court granted Nash partial summary judgment as moved, and Ms. Troutt brings this appeal, enumerating those grants as error. Held :

1. In her first enumeration of error, Ms. Troutt argues that under the circumstances, paragraph 7 of the installment sales agreement did not nullify the implied warranty as to merchantability and fitness. Her argument is that Nash's issuance of an odometer statement in compliance with the "Federal Odometer Act" (15 U.S.C. § 1987 et seq.) constituted a statement of warranty as to the "new" condition of the Concord. Additionally, she argues that the efforts and promises by Nash to effect warranty repairs constituted a "service" agreement entered into between the parties within 90 days of the execution of the installment sales agreement. It is her contention that by its own wording, the exceptions of paragraph 7 of the installment sales agreement wherein it relates to denial of an implied warranty as to merchantability and fitness for the purpose intended are brought into play by the facts contained in her pleadings and affidavit.

Code Ann. § 109A-2-316 expressly authorizes a seller to negate an implied warranty of merchantability by a conspicuous writing denying implied merchantability. Ms. Troutt admits that paragraph 7 of the agreement meets the requirements of conspicuousness. Moreover, she does not contend that paragraph 7 would not otherwise negate merchantability except for the presence of a warranty and service agreement. Our problem lies in Ms. Troutt's contention that there is evidence of a "service agreement" or that an odometer statement filed in compliance with a totally unrelated federal statute is a warranty.

Ms. Troutt contends that her statement contained in an affidavit submitted in opposition to Nash's motion for summary judgment indicates the existence of a service contract. That statement in effect says that before the sale of the car, Nash's agent promised that if there were any problems with the car, Nash would take care of them and that after the problems had developed, she relied upon Nash's further promises to fix the car. Nash offered no evidence as to the existence or non-existence of such promises other than a general denial in its pleadings.

Code Ann. § 109A-2-202 provides: "Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented ... (b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement."

In the case sub judice, the installment sales contract, in paragraph 10 states: "10. No modification of any of the terms or conditions hereof shall be valid ... and the buyer expressly waives the right to rely thereon, unless made in writing duly executed by the seller."

Even assuming that the oral promises made before and after the execution of the sales contract amounted to an agreement to enter into a service contract, this evidence of oral promises was not competent to modify the express written warranty disclaimer set out in paragraph 7 of the same agreement. See Lyon v. Patterson 138 Ga.App. 816, 820, 227 S.E.2d 423; Cooper v. Vaughan, 81 Ga.App. 330, 337, 58 S.E.2d 453. Accordingly, the trial court correctly concluded that there was no competent evidence of an independent service contract as an exception to the written implied warranty disclaimer in paragraph...