Opinion
33311.
DECIDED DECEMBER 5, 1950.
Complaint; from Emanuel Superior Court — Judge Humphrey. August 19, 1950.
Randall Evans Jr., for plaintiff.
Smith, Kilpatrick, Cody, Rogers McClatchey, Price Spivey, D. N. Brown, for defendants.
An action brought against an automobile manufacturer and its sales agent, in which the plaintiff seeks to recover on an alleged violation by the defendants of the implied warranty provided for in Code § 96-301 (2), because the vehicle purchased by him was not reasonably suitable for the uses intended, and in which it was set up that by reason of such breach of the implied warranty the plaintiff had been injured and damaged by the defendants in the sum of $1000, being the difference between the value of the vehicle purchased by reason of the breach and the purchase-price therefor paid by him to the defendants, is ex contractu, and cannot be maintained against both the principal and the agent jointly.
DECIDED DECEMBER 5, 1950.
Jack Hardy filed suit in Emanuel Superior Court against P. D. Leonard and the Studebaker Corporation, alleging substantially: that he purchased a 1949 Studebaker truck from the defendants on October 30, 1949, trading in his 1948 Dodge truck for $1019.94, and paying the difference of $800 in cash; that this truck was bought under a warranty; that it was merchantable and reasonably suited for the use intended, which was use in the business of hauling for commercial purposes; that the truck was not merchantable and not reasonably suited for the use intended, and was not worth more than $819.94 at the time the plaintiff purchased it; that it did not have the capacity to haul heavy loads, nor the capacity to attain the speed that was warranted under the contract, and did not have the capacity to pull reasonable loads at a reasonable speed; that the plaintiff notified the defendants of the defective condition of the truck and asked for a return of his money and instructions as to whether to store the truck for the defendants, but the defendants have not responded; that the plaintiff has been damaged in the sum of $1000, the difference between the purchase-price paid for the truck and its actual value; that said truck was manufactured by the Studebaker Corporation and placed in the hands of Leonard for purpose of sale, and that Leonard was acting as agent of the corporation at the time of making said sale and is liable individually and as such agent and the corporation is liable by reason of the sale of the truck when same did not comply with the warranty. This petition was filed April 8, 1950. The defendant Leonard was served April 15, 1950.
On May 8, 1950, the defendant Leonard demurred specially to the petition on the ground "that there is no allegation showing that the alleged warranty was in writing and if so no copy of same is attached and that if the same was verbal it is not sufficiently set forth so as to put this defendant upon notice of what he is required to meet, and "upon the ground that no sufficient allegations were made as to the alleged warranty, that is, if the same was in writing no copy is attached and if oral not sufficiently set forth so as to put this defendant upon notice of what he is required to meet." On May 6, 1950, the defendant corporation demurred specially to the petition (1, 2) because it is not alleged whether or not said warranty was oral or in writing and if written a copy is not attached and if oral the terms are not set out, and (3) also because there is a misjoinder of parties defendant, and (4) also because the action is brought against the corporation and against Leonard as agent and it appears that an action like this one can not be brought against the principal and agent, and the plaintiff must elect the one against whom he will proceed.
On June 2, 1950, the plaintiff amended his petition and alleged that the warranty referred to in the petition is the implied warranty provided for in Code § 96-301 (2), and there was no express covenant of warranty, and that the defects in the truck were latent and the purchaser could not by the exercise of caution detect the same for the reason that the truck, at the time it was new, could not be driven at a high rate of speed, nor subjected to the pulling of heavy loads, inasmuch as it had to be used or "broken in" before it could have been fully utilized and before it would appear that it was in a defective condition. The plaintiff further set up that upon taking delivery of the truck he exercised care and caution to determine whether or not the truck was reasonably suited to the use intended and was merchantable, and within less than thirty days after he discovered that the truck was defective and would not pull a heavy load nor attain a reasonable speed he thereupon immediately notified the defendant and has continued to endeavor to have the defendants adjust such defects, but they have failed to do so.
On June 10, 1950, the court passed an order that this demurrer be heard at the next July term of said court, July 10, 1950. This was by agreement of counsel for all parties. All pleadings in the case were delivered to the court, and counsel were notified that the court would hear further argument on August 19, 1950. Counsel for the plaintiff waived his right to be present and agreed for the court to pass on the demurrers.
On the back of the special demurrer of the defendant corporation the following appears: "The regular July 1950 term of Emanuel Superior Court not having been adjourned, and before the within demurrer is passed upon by the judge of said court, the same is hereby renewed to plaintiff's petition, as amended. This August 19, 1950."
On said date, the court rendered the following order: "A hearing upon the within demurrer coming on and defendant, the Studebaker Corporation, having renewed its demurrer to the petition as amended and after consideration, briefs and arguments submitted by all parties, grounds 3 and 4 of this within demurrer are sustained, and said petition dismissed subject to the right of further amendment by the plaintiff, if desired, within a reasonable time. Other grounds of the demurrer not passed on at this time." To this judgment the plaintiff excepted, without offering to amend.
The court passed upon grounds 3 and 4 of the defendant corporation's special demurrers, which were that there was a misjoinder of parties defendant, and because the action is brought against the corporation and its agent and that an action such as the one set out in the petition can not be brought against the principal and agent, but the plaintiff must elect the one against whom he will proceed. This defendant had also demurred specially to the plaintiff's petition on the ground that it did not appear whether the alleged warranty sued upon was written or oral, and if written, no copy was attached, and if oral, the grounds thereof were not set out, and to meet this ground of special demurrer, the plaintiff amended his petition and set up that the warranty relied and sued upon was the implied warranty, set out in Code § 96-301 (2), and that the alleged defects were latent. In these circumstances, there is no merit in the contention of the plaintiff that this defendant did not properly renew its demurrers to the petition. The court has not passed upon any of the grounds of the special demurrers of this defendant. The plaintiff met the first two grounds thereof and cured the defects pointed out, but the amendment did not relate to grounds 3 and 4 and the defects pointed out and attacked thereby. It was not necessary that the defendant endorse on the back of the original demurrer that it was renewing same to the petition as amended. The grounds of special demurrer that there was a misjoinder of parties defendant and that the action was not properly one against the principal and the agent and that the plaintiff should be required to elect against which one of the defendants he desired to proceed had not been passed upon by the court and had not been before the court until August 19, 1950. While it is true that the plaintiff materially amended his petition, he did so upon his own volition and the grounds of special demurrer sustained by the court and now complained of were not met by this amendment, but other grounds of special demurrer (1 and 2) were met by the amendment. The case of Mauldin v. Lexington Roller Mills, 195 Ga. 122 ( 23 S.E.2d, 429), and similar authorities, to the effect that after a petition has been amended in a material respect a demurrer to the petition must be renewed as to the petition as amended in order to be considered, have no application.
There is no merit in the contention that the grounds of special demurrers 3 and 4 were general and were not complete and understandable. In ground 3 of the demurrer, the defendant demurred on the ground 4 that there is a misjoinder of parties defendant and in ground 4 it demurs to the petition because the action is one against principal and agent and it appears that the same is not such an action as can be brought against the principal and agent and that the plaintiff must elect whether he shall proceed against the principal or against the agent. These two grounds of demurrer are special and are complete and understandable. In fact they could have been incorporated as one ground. There were only two defendants, the principal and the agent. The petition could only be demurred to because the two defendants were improperly joined, that is, the defendant principal was improperly joined with the defendant agent. Grounds 3 and 4 of the special demurrer were sufficiently in compliance with the principle of the cases cited by plaintiff in error of Peoples Loan Co. v. Allen, 199 Ga. 557 ( 34 S.E.2d 811), Alford v. Davis, 21 Ga. App. 820 (4-a) ( 95 S.E. 313), and Shingler v. Shingler, 184 Ga. 672 ( 191 S.E. 824). But it is insisted by the plaintiff in error that the action is properly one against the principal and the agent in that the action is in tort and not in contract. It is contended that the case is one where the action is in tort for the violation of a right or breach of a duty growing out of a contract, and is properly brought against the defendants, principal and agent, in the same action (citing Wilkinson v. Rich's Inc., 77 Ga. App. 239 (2), 244, 48 S.E.2d 552; Fain v. Wilkerson, 22 Ga. App. 193 (2), 95 S.E. 752; Commercial City Bank v. Mitchell, 25 Ga. App. 837 (2), 105 S.E. 57; Byrd v. Freeman, 32 Ga. App. 112, 122 S.E. 630). It is true that an action ex delicto may arise from a breach of duty arising out of a contract. However, here the action is not one sounding in tort, but is ex contractu. The plaintiff is seeking damages caused by a breach of the contract, that is, the breach by the defendants of the alleged implied warranty. The damages sought are such as flow directly from the contract between the parties, wherein the defendants are charged with breaching the implied warranty that the truck was suitable for the uses intended, and that as a result of this breach, the plaintiff has been damaged in the sum of $1000, said truck not being worth, by reason of the breach, the price paid under the contract of $1819.94, but worth only $819.94. Learned counsel for the plaintiff concedes that "if our suit can be denominated as one on contract, then we have no right to sue the principal and agent in the same action." See Davis v. Menefee, 34 Ga. App. 813 ( 131 S.E. 527). The damages sought here were ex contractu damages. See Howard v. Central of Ga. Ry. Co., 9 Ga. App. 617 ( 71 S.E. 1017). It will be assumed that the truck purchased, if it had been suited to the uses intended, was worth $1819.94, the amount which was paid to the defendants for same, but that by reason of the breach by the defendants of their warranty, implied by law as set out in Code § 96-301 (2), the truck was worth only $819.94, and that therefore the defendants damaged the plaintiff in the amount of $1000. The defendants contracted that the truck was worth $1819.94 and the plaintiff paid this sum for it, and by reason of the breach by them of the contract, there being embodied in the contract this implied warranty that the truck was reasonably suited to the uses intended by the purchaser, the truck was worth only $819.94, to the plaintiff's injury in the sum of $1000. Code § 105-101 defines a tort as the unlawful violation of a private legal right, other than a mere breach of contract, express or implied. While it is true that a tort may arise by reason of an obligation created by contract, there must result from the breach by the defendant of the duty imposed some injury to the plaintiff's person or property. In the cases cited by the plaintiff there was an injury sustained by the plaintiff to his property, not a partial failure of the consideration due to the breach by the defendants of their implied warranty. In the case of Wilkinson v. Rich's Inc., supra, personal injuries were involved. In the case of Fain v. Wilkerson, supra, the action was for conversion of the property. Surely this was a tort. The case of Lightfoot v. King, 25 Ga. App. 80 (2) ( 102 S.E. 468), has no similarity to the case at bar, under the rulings and facts.
It is our opinion that the action was one ex contractu and that the trial judge did not err in sustaining the special demurrers 3 and 4 thereto that there was a misjoinder of parties defendant and that the plaintiff having elected not to amend to meet the demurrer, the petition was properly dismissed.
Judgment affirmed. MacIntyre, P.J., and Townsend, J., concur.