Summary
In Bell v. Menzies, 110 Ga. App. 436 (138 S.E.2d 731) (1964), the plaintiff hired the defendant for landscaping services, including transplanting grass.
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40657.
DECIDED SEPTEMBER 25, 1964. REHEARING DENIED OCTOBER 9, 1964.
Breach of warranty. Fulton Civil Court. Before Judge Camp.
Levy Stonecypher, Jean Wm. Levy, for plaintiff in error.
Bessie W. McCorvey, contra.
The petition having stated a cause of action for breach of warranty collateral to a contract, the trial judge properly denied the defendant's oral motion to dismiss.
DECIDED SEPTEMBER 25, 1964 — REHEARING DENIED OCTOBER 9, 1964.
Menzies filed suit against Bell seeking to recover damages for breach of warranty.
The amended petition alleges: The plaintiff engaged the defendant to perform landscaping services on his property which included the transplanting of Zoysia grass springs on the lawn; "defendant did at the time of the agreement, warrant that the grass sprigs would live, and after petitioner questioned the advisability of sprigging said grass in the month of October, defendant did expressly, unequivocally and without reservation, warrant that October of 1962 was not too late in the year to sprig Zoysia grass, and did warrant unequivocally and without reservations that cold weather would not damage the Zoysia grass springs and . . . your petitioner did rely on these warranties"; on or about October 1, 1962, the defendant performed the landscaping services in accordance with the agreement, including the transplanting of the Zoysia grass springs, and the plaintiff paid in full for the services on October 19, 1962; "petitioner did determine during the early part of April, 1963, that said Zoysia grass springs and roots were completely dead and worthless to your petitioner"; and plaintiff prayed for damages because of the breach of the express warranties.
In the course of the proceedings in the trial court the defendant made an oral motion to dismiss the petition for failure to set out a cause of action. The trial judge denied the oral motion to dismiss. The case was subsequently tried before a jury and resulted in a verdict and judgment for the plaintiff.
The defendant excepts to the judgment denying his motion to dismiss plaintiff's petition. While the defendant also excepted to the trial court's judgment dismissing his motion for new trial on the general grounds, this exception was not argued by him and was thus abandoned.
The single exception now extant in this appeal is whether the petition stated a cause of action for breach of warranty collateral to a contract.
Our Supreme Court has defined a warranty as "a statement or representation made by the seller of goods, contemporaneously with and as a part of the contract of sale, though collateral to the express object of it, having reference to the character, quality or title of the goods, and by which he promises or undertakes to insure that certain facts are or shall be as he then represents them." Elgin Jewelry Co. v. Estes Dozier, 122 Ga. 807, 810 ( 50 S.E. 949). See Whigham v. Hall Co., 8 Ga. App. 509, 511 ( 70 S.E. 23); Hawkins v. Haynes, 40 Ga. App. 532, 534 ( 150 S.E. 442). Cf. U.C.C., Code Ann. § 109A-2-313, relative to express warranties; U.C.C., Code Ann. §§ 109A-2-312; 109A-2-314; 109A-2 — 315, relative to implied warranties.
"The decisive test, in determining whether language used is a mere expression of opinion or a warranty, is whether it purported to state a fact upon which it may fairly be presumed the seller expected the buyer to rely and upon which a buyer would ordinarily rely. If the language used is of that character, the fact of reliance on the part of the buyer and the presumption of intent on the part of the seller which the law would raise in such a case would operate to create a warranty." Smith v. Frazer, 144 Ga. 85, 88 ( 86 S.E. 225). "No particular form of words is necessary to constitute a warranty. . . To make an affirmation at the time of sale a warranty, it must appear to have been so intended, and not to have been a mere expression of opinion . . . whether the words used amount to a warranty or not, is a question for the jury, under the rules of law applicable to the case." Terhune v. Dever, 36 Ga. 648, 652.
The petition here alleges: that the defendant warranted that the grass would live and that cold weather would not damage the grass; that plaintiff relied on these warranties; that the grass did not live; and that plaintiff was damaged by breach of the defendant's warranties. Although the plaintiff precariously rested his case on meager pleadings which apparently would have been subject to attack by other means, nevertheless the petition did allege elements sufficient to state a cause of action for breach of warranty. This is all that is necessary to withstand a motion to dismiss in the nature of a general demurrer. Farmers c. Bank of Manchester v. Gibson, 211 Ga. 270 (1) ( 85 S.E.2d 513).
In his brief the defendant contends that the failure of the grass to survive could have been the result of many things each of which was beyond his power to control or to prevent. These arguments, however, relate to matters concerning the evidence and thus are jury questions. Contentions of that sort do not establish legal grounds upon which the petition might be attacked on general demurrer unless the pleading's language is itself so definitive of those defenses as to make the petition vulnerable to them as matters of law. The petition here is not so definitive. See Western Soil Bacteria Co. v. O'Brien Bros., 49 Cal.App. 707 ( 194 P. 72) a case cited by the defendant.
The trial judge did not err in denying the defendant's oral motion to dismiss the petition.
Judgment affirmed. Jordan and Eberhardt, JJ., concur.