Summary
holding that because the finance company failed to notify the decedent that no insurance was obtained, equity and good conscience would not allow the finance company to "take advantage of the changed condition" of the plaintiff
Summary of this case from Keller v. First Nat. BankOpinion
21765.
ARGUED SEPTEMBER 11, 1962.
DECIDED OCTOBER 1, 1962.
Equitable petition. Emanuel Superior Court. Before Judge Humphrey.
Homer S. Durden, Jr., for plaintiff in error.
Spivey Carlton, contra.
There being no substantial issue remaining as to any material fact, the lower court did not err in applying the appropriate legal principles and defining the legal rights of the parties without a trial to establish the already undisputed facts and rendering a summary judgment.
ARGUED SEPTEMBER 11, 1962 — DECIDED OCTOBER 1, 1962.
This is the second appearance of this case in this court. On the former appearance ( Consumers Financing Corp. v. Lamb, 217 Ga. 359, 122 S.E.2d 101), this court affirmed the lower court in overruling the demurrers and held that the petition of the administratrix alleged a cause of action against the defendants as joint tortfeasors and for equitable relief in that the allegations showed that the defendant Consumers Financing Corporation had knowledge of the oral agreement between the other defendant and the petitioner's deceased husband and "by its acts was a party to such agreement, it owed the plaintiff the duty to procure credit life insurance." From the admissions of the pleadings the credit life insurance was never obtained, the purchaser of the automobile was never notified that the life insurance was not obtained before he died, the premium for the credit life insurance was included in the sum of money borrowed in the transaction, the note, conditional-sale contract, and payments on the note and the insurance premium were admittedly received, and the contractual relationship between the defendants and between the petitioner's deceased husband and the defendants was shown by exhibits to the answer, and the present plaintiff in error sought to foreclose its retention-title contract when this equitable action was brought seeking an injunction, damages and other relief. The defendant, Franklin-Overstreet Company, by its answer admitted that the deceased would not have purchased the new car had it not agreed to obtain the credit life insurance for him at the time of making the new sale and loan, and the credit life insurance which the purchaser then had on the wrecked automobile would have remained in force and effect, but both it and the plaintiff in error deny that they were "agreed agents of the purchaser-obligor to procure and obtain such credit life insurance covering the new transaction and the life of the purchaser-obligor." But both admitted that credit life insurance was included in the sum of money borrowed and the receipt of the note, conditional-sale contract and payments thereon. It was also admitted that an attempt was made to get the credit life insurance but same could not be obtained.
A motion for summary judgment was filed by the plaintiff alleging there exists no genuine issue as to any material fact and the plaintiff is entitled to judgment as a matter of law and equity. This the plaintiff in error denied. After a hearing the court found against the defendants the amount of damages sought, further directing that the same be applied "toward the cancellation of the note and conditional-sale contract . . . and permanently enjoined and restrained [the defendants] from seeking to enforce payment of the note and conditional-sale contract and/or from seeking to foreclose upon the same." The plaintiff in error, Consumers Financing Corporation, excepts to this final judgment.
In ruling upon the special demurrers on the former appearance ( Consumers Financing Corp. v. Lamb, 217 Ga. 359, 122 S.E.2d 101), this court ruled and thereby fixed the law of the case to the effect that acceptance of the conditional-sale contract with the knowledge that a stated amount was for the premium on the credit life insurance, receipt and retention of a number of the payments on the premium and note thus fixed, estopped the Consumers Financing Corporation from now attacking the oral portion of the contract or to contend that it conflicted with the writing. As applied to the case when summary judgment was entered, that ruling precluded Consumers from denying that it was as a matter of law bound by the terms, including the verbal part of the contract. Also, this defendant admitted receipt and retention of a number of payments by Lamb on the note and the premium for the insurance, and its failure to notify him that it had not and could not get the insurance, thus admitting a breach of the contract and thereby rendering further proof of such breach unnecessary.
Thus summary judgment would be in order, but it is contended by this defendant that the admitted breach resulted in no damage to the buyer since his physical condition was such that no company would give him insurance. This contention would raise an issue of fact if the defendant is permitted to make it. Plaintiff's reply to this contention is that the defendant is estopped to make it because of the following facts: Mr. Lamb was never notified during his life that no insurance could be obtained. (The pleadings admit this.) He was led to believe that it had been obtained by the conduct of the defendants in repeatedly accepting his payments on the premium therefor without advising him that the insurance could not be obtained (the pleadings admit acceptance of the payments and the failure to notify him that the insurance could not be obtained), and thereby enable him to secure it elsewhere; that now after his death which renders it impossible to undertake to get insurance elsewhere, this defendant, because of its laches in not notifying him while he could make the effort to get it elsewhere, can not in equity and good conscience take advantage of the changed condition which renders the plaintiff unable to do what could have been done had the defendant promptly notified him and questioned his ability while in life to secure the insurance. Since the above facts are true this issue is thus barred by law. Code §§ 37-119, 38-116; Miller v. Everett, 192 Ga. 26, 34 ( 14 S.E.2d 449); Hadaway v. Hadaway, 192 Ga. 265, 270 ( 14 S.E.2d 874); Manry v. Manry, 196 Ga. 365, 366 (4) ( 26 S.E.2d 706).
Hence, with this issue barred by law, no issue of material fact remains in the case and summary judgment was properly entered. Code Ann. § 110-1203 (Ga. L. 1959, p. 234).
Judgment affirmed. All the Justices concur.