Opinion
45848.
SUBMITTED JANUARY 7, 1971.
DECIDED APRIL 9, 1971.
Breach of warranty. Peach Superior Court. Before Judge Bell.
Culpepper Culpepper, George B. Culpepper, Jr., for appellant.
Robert E. Lanyon, for appellee.
The evidence was sufficient to support a verdict for the plaintiff.
SUBMITTED JANUARY 7, 1971 — DECIDED APRIL 9, 1971.
Prior to the purchase of the bedspreads which are the subject matter of this litigation, Mrs. Vernelle R. Lucky, secretary for Austin Lee Corporation, received a telephone call from Mr. Minnie Charles Uptain, president of the plaintiff corporation, Cascades Motel, Inc., advising Austin Lee Corporation, the defendant, that he had seen samples of its bedspreads at Moss Brothers in Tampa, Florida, and that he was interested in purchasing them. He was advised by defendant that the spreads he examined were exclusive spreads made for Moss Brothers in Tampa, Fla., for whom defendant had made thousands of spreads.
Uptain was interested in two particular colors and requested that swatches and samples be sent to him at the motel in Chattanooga, Tenn. Uptain informed Mrs. Lucky, acting for the defendant, that he had had experience in spreads before and asked questions as to the strength of the stitching and quilting; he wanted to examine the spreads. Defendant forwarded two Belair spreads together with swatches in the color line, and Uptain was informed by Mrs. Lucky that Austin Lee Corporation sold only decorative spreads and that the spreads of which she sent samples could be dry cleaned only. The sample spreads and swatches were sent to Uptain at his request after this conversation with Mrs. Lucky. The spreads were sent to the plaintiff to make any tests that were desired before orders were placed for additional spreads. Afterwards, Uptain as plaintiff's president ordered 340 additional spreads, which are the subject matter of this controversy. Before the 340 spreads were shipped, the plaintiff was notified by the defendant that they were "dry-cleaned" spreads.
The plaintiff put the spreads on the beds in the motel. After someone put a wet rag on the spreads, a black spot appeared on each spread where water was placed. In the course of thirty days there were possibly 25 or 30 of these spreads to have black spots appear on them. By the end of June plaintiff had had about 100 of these spreads that were so affected, and Uptain took all of the spreads out of the rooms and ordered spreads from another company. When plaintiff received the spreads from the other factory, the spreads purchased from the defendant were boxed up and Uptain advised the defendant that he had not been able to get "water circles" out of the spreads although he had tried other methods of cleaning and detergent washing and for that reason he would have to assume that the material on the face of these spreads was defective.
Subsequently, plaintiff brought suit in the Superior Court of Peach County against defendant. After all of the evidence was introduced and the judge had charged the jury, the jury brought in a verdict for the plaintiff. The defendant appealed and the case is here for review.
1. The appellant contends that the evidence did not support the verdict because the president of the appellee was informed that the spreads were the dry-clean type. Further, the appellant argues that the appellee's president was sent two spreads for the purpose of allowing him to make any kind of tests or examinations he desired. The appellant argues that Code Ann. § 109A-2-316 (3, b) (Ga. L. 1962, pp. 156, 190) provides that where the buyer either examined or refused to examine the goods there is no implied warranty as to defects which on examination ought in the circumstances to have become revealed to him. However. Official Comment 8 to Section 2-316 (3, b), Uniform Commercial Code, 1 ULA 237, which section is identical to the above quoted language, states: "In order to bring the transaction within the scope of `refused to examine' in paragraph (b), it is not sufficient that the goods are available for inspection. There must in addition be a demand by the seller that the buyer examine the goods fully. The seller by the demand puts the buyer on notice that he is assuming the risk of defects which the examination ought to reveal. The language `refused to examine' in this paragraph is intended to make clear the necessity for such demand."
The appellant's contention is without merit.
2. The fourth enumeration of error complains that the trial judge erred in admitting in evidence a picture of the plaintiff's motel and allowing evidence as to the type motel owned by the plaintiff. The objection of defendant's counsel was waived when he questioned the witness on cross examination, "Is that a Quality Court?" and the witness answered, "Yes, it is." Lumbermen's Underwriting Alliance v. First Nat. Bank c. Co., 100 Ga. App. 217, 222 ( 110 S.E.2d 782); Rabun v. Wynn, 209 Ga. 80 (7) ( 70 S.E.2d 745).
3. Counsel for the appellant contends that it was error to allow a witness for the plaintiff to read from a letter regarding certain laboratory tests. However, an expert witness testified in substance to the facts which were stated in the letter. The admission of the evidence objected to, if error, was harmless. Saint v. Ryan, 114 Ga. App. 489 (1) ( 151 S.E.2d 826).
4. The seventh and ninth enumerations of error complain that the trial judge erred in allowing evidence as to the cost of spreads to replace the defective ones. Under Code Ann. § 109A-2-712 (Ga. L. 1962, pp. 156, 229), Code Ann. § 109A-2-714 (Ga. L. 1962, pp. 156, 230), and Code Ann. § 109A-2-715 (Ga. L. 1962, pp. 156, 231), this evidence was admissible to prove cover.
5. The appellant contends the trial judge erred in failing to allow the president of the defendant corporation to testify as to the competency and ability of the weavers from whom the bedspreads were purchased. While the witness testified that he had 25 years experience in the making of bedspreads with the defendant corporation and its predecessor, there was no evidence that he was an expert in weaving and dyeing of the materials.
"`Whether a witness has such learning and experience in a particular art, science, or profession as to entitle him to be designated as an expert, or to be deemed prima facie an expert, is a matter addressed to the sound discretion of the trial court, and such discretion will not be disturbed unless it is manifestly abused. See Clary v. State, 8 Ga. App. 92 (2) ( 68 S.E. 615); Whatley v. Henry, 65 Ga. App. 668, 681 ( 16 S.E.2d 214); Hinesley v. Anderson, 75 Ga. App. 394, 398 ( 43 S.E.2d 736), and citations.' Carroll v. Hayes, 98 Ga. App. 450, 452 ( 105 S.E.2d 755)." Rouse v. Fussell, 106 Ga. App. 259, 262 ( 126 S.E.2d 830).
The court's ruling was not error.
6. The 14th enumeration of error complains of a charge of the court. There being no objection by the appellant as required by Code Ann. § 70-207 (a) (Ga. L. 1965, pp. 18, 31; 1966, pp. 493, 498; 1968, pp. 1072, 1078), this enumeration of error is not considered by this court.
7. The remaining enumerations of error are either without merit or were abandoned.
Judgment affirmed. Jordan, P. J., and Evans, J., concur.