White v. General Discount Corp.

• Decision Date: 02 June 1939
• Docket Number: 27383.
• Citation: 3 S.E.2d 214,60 Ga.App. 186
• Parties: WHITE et al. v. GENERAL DISCOUNT CORPORATION.
• Court: Georgia Court of Appeals

3 S.E.2d 214

60 Ga.App. 186

WHITE et al. v. GENERAL DISCOUNT CORPORATION.

No. 27383.

Court of Appeals of Georgia, Division No. 1.

June 2, 1939

Eldon Haldane and W. O. Slate, both of Atlanta, for plaintiffs in error.

Willis Smith, of Carrollton, for defendant in error.

MacINTYRE Judge.

On May 16, 1938, W. L. Folds Motor Company sold an automobile to Leon and Harold White under a conditional-sale contract which was transferred to General Discount Corporation before maturity. The contract stipulated in part as follows "This is to witness that I have this day examined accepted in its present condition, and received of W. L Folds Motor Company, hereinafter known as the vendor, the following described property, to-wit: New 1938 Plymouth Fordor Sedan, serial No. 9100872, Motor No. P6-134963." The contract further stipulated: "These remedies however, shall be cumulative and not restrictive, and shall not be construed so as to deprive vendor or assigns of its right to proceed at law. It is expressly agreed by me that this contract covers all conditions and agreements between the parties, and no verbal representations by any one whatsoever shall bind vendor. Vendor makes no warranty or representation whatever, either express or implied, relative to said property, except as to title."

Plaintiffs in error defaulted in payment and General Discount Corporation sued out an attachment in the Municipal Court of Atlanta, and at the first term filed a declaration. The defendants answered, denied indebtedness, and sought to recover over and against the plaintiff on a counter-claim of $231. The answer was dismissed on demurrer with leave to amend. The defendants' answer as amended was stricken and the judge directed a verdict for the plaintiff. The defendants' motion for a new trial was overruled and they excepted. The defendants in their answer sought to set up "that the consideration of the note and contract, which is made the basis of the attachment sued out in this matter has wholly and completely failed, in that the original vendor misrepresented the automobile sold to defendants as being a new automobile, when in matter of fact it was not a new automobile but a second hand one or a used car."

This court in the case of Barfield v. Farkas, 40 Ga.App. 559 (4), 150 S.E. 600, 601, held: "Since fraud, such as will afford relief against a contract, must have been acted upon by the complaining party to his injury, it follows that, where the agreement has been reduced to writing and the writing stipulates that it contains the entire agreement, and that the seller is not to be bound by any sort of warranty, either express or implied, the defendant in a suit on such a purchase-money note will not be permitted, while affirming the contract, to plead damages by way of failure of consideration by

showing that the seller had made false and fraudulent representations with reference to the subject-matter of the sale,...