Opinion
52772.
SUBMITTED OCTOBER 4, 1976.
DECIDED NOVEMBER 17, 1976.
Breach of warranty. Clayton Superior Court. Before Judge Kemp.
Albert B. Wallace, William R. L. Latson, for appellant.
Glaze Glaze, George E. Glaze, for appellee.
Clayton Electric Company brought a three-count complaint against the appellant, the second count of which was eliminated during trial. Count 1, which sought damages resulting from plaintiff's purchase of a pickup truck based on breach of an implied warranty, resulted in a verdict for the defendant, and this appeal concerns a verdict for the plaintiff on the fraud count, in the sum of $180 actual and $5,000 punitive damages, plus $2,000 attorney fees.
Count 3 is based on actual fraud and alleges that plaintiff rescinded the contract and returned the vehicle but, four months later "defendant refused to accept return... and ordered the vehicle removed from his premises." The evidence on this count, construed in favor of the plaintiff, is that plaintiff's president, Jim Brown, went to one of the defendant's salesmen from whom he had purchased several cars, and was told that the truck in question had just been taken in on a trade. He tried it out and reported back that something was wrong with its gear shift mechanism. The salesman tried it out and said it just needed adjusting and would be fixed, and further suggested they sign the papers that day (Friday) and he bring in the truck the following Monday when it would be taken care of. Brown brought it in on Monday and picked it up a day or two later. This return was repeated three times, on none of which was the vehicle fixed. The plaintiff then testified that finally he gave them the truck back, told them he didn't want it, couldn't use it, it was their truck. After it had remained for some time on the seller's premises "I went back in to see Mr. Burks and he told me that if I didn't get the truck out from there that he was going to haul it off, and he wouldn't be responsible for what happened to it." The plaintiff then parked the car on his own premises where it remained unused until the time of the trial. There was additional testimony that Brown had had this vehicle 100% financed through a local bank and he eventually paid off this debt. Further, within a short time after the purchase he purchased another vehicle, a van, from the defendant and there was a discussion about returning the truck for credit on the van, but he was immediately informed this could not be done, but the defendant would attempt to sell the truck for him, thus making a jury question as to whether the trade was actually rescinded or the truck left on the premises for resale.
It does appear, however, that both plaintiff and defendant were aware of a defect in the motor which seriously affected the operation of the vehicle prior to the signing of the sale papers, and that the papers were signed only after the plaintiff was assured that he would use the truck over the weekend and bring it in on Monday for the adjustment. The defect turned out to be in the transmission; the defendant refused to correct it unless a further payment of $187.20 was made, and the plaintiff refused to make the additional payment.
The jury returned a verdict of $180 actual damages, $5,000 punitive damages, and $2,000 attorney fees, from which the defendant appeals.
SUBMITTED OCTOBER 4, 1976 — DECIDED NOVEMBER 17, 1976.
1. We disagree with the appellant's contention that the jury verdict necessarily implied a finding that they rejected the plaintiff's theory of rescission of the contract. The plaintiff testified positively that he did rescind the contract and return the truck; the defendant refused to accept it and ordered it removed from the premises, and he then stored it on his own. The jury therefore apparently reached the conclusion that since the vehicle was in plaintiff's possession he was entitled as actual damages to recover only the difference between the price at which he bought it and the amount necessary to make it functional; in other words, the $180 necessary to install a new transmission. The award of punitive damages and attorney fees bears a necessary conclusion that the defendant was guilty of actual fraud on which the plaintiff relied to his injury.
The sale contract here contained the language: "Seller Makes no Express or Implied Warranties, of Merchantability, Fitness or otherwise, which extend beyond the description of the property on the face hereof." That this is a waiver of after-discovered defects, see Rogers-Farmer Metro Chrysler-Plymouth, Inc. v. Barnett, 125 Ga. App. 494 ( 188 S.E.2d 122). If the buyer seeks damages, he must disaffirm the contract, return the merchandise, and prove actual fraud. Brown v. Ragsdale Motor Co., 65 Ga. App. 727 ( 16 S.E.2d 176). We find the plaintiff's evidence sufficient to support a jury verdict based on this premise. We point out, additionally, that this case differs from those typified by Brown, in that here there was an agreement prior to the sale relating to an acknowledged defect, that it would be adjusted, so that at least under the plaintiff's evidence the actual subject matter of the sale was the vehicle with the defect eliminated. In the ordinary fraud case, the defect leading to rejection of the merchandise is discovered after the sale is completed, and after the waiver of warranties has been made, as in Clayton County Bd. of Ed. v. Hooper, 128 Ga. App. 817 ( 198 S.E.2d 373).
2. It is further contended that there is no evidence to support a verdict for actual damages in the sum of $180. In ordinary negligence cases it is well settled that cost of repair may be relied upon as the measure of damages provided it does not exceed the value of the automobile before injury. Leggett v. Brewton, 104 Ga. App. 580, 583 ( 122 S.E.2d 469). In the present case the jury may well have found that the plaintiff, had he chosen to do so, could have put the truck into operable condition for the cost of a new transmission (the approximate amount of the verdict) and elected, since in fact he had possession of it after the seller demanded it be removed from the lot, to award only such sum as actual damages. This being the minimum to which the plaintiff would have been entitled in such circumstances, the appellant has no reason to complain of the amount.
Judgment affirmed. Webb, J., concurs. Smith, J., concurs specially.
I concur in the result reached by the majority, that is affirmance of the verdict and judgment, but not in all that is said in the opinion. Count 3, after being amended, proceeded on the ground of fraud, in part claiming rescission, and in part affirming the contract and seeking damages occasioned by the fraud in inducing the execution thereof. The sale price of the truck which had been paid by the plaintiff was $3,126.50. The cost of repairs was fixed at $187.50 by one witness and $145 by another. The jury found actual damages of $180 plus attorney fees and punitive damages.
(a) The majority opinion holds that the jury verdict did not necessarily imply a finding they rejected the plaintiff's theory of recovery based on rescission; it appears to the writer that is exactly what the jury did do, inasmuch as they found as damages the cost of repairs rather than a return of the purchase price under a recovery based upon rescission.
(b) The finding of $180 damages was well within the range of evidence as to the cost of repairs fraudulently promised by the defendant in order to make the sale of the truck, and the verdict is thus authorized by the evidence.