Opinion
35471.
DECIDED FEBRUARY 28, 1955. REHEARING DENIED MARCH 25, 1955.
Conditional-sale foreclosure. Before Judge Thomas. Jeff Davis Superior Court. September 28, 1954.
James L. Boatright, for plaintiff in error.
C. W. Health, contra.
1. The trial court did not err in disallowing the defendant's second amendment to his affidavit of illegality.
2. Where the contract has been reduced to writing, and no warranty either express or implied is made by the seller, the buyer will not be permitted, while affirming the contract, instead of rescinding it, to plead damages by failure of consideration; therefore, in the present case the trial court did not err in sustaining the plaintiff's demurrers to the defendant's amended affidavit of illegality for the reasons shown in the opinion.
DECIDED FEBRUARY 28, 1955 — REHEARING DENIED MARCH 25, 1955.
Jeff Davis Motors, Inc., brought an action in the Superior Court of Jeff Davis County against Henry Morris, to foreclose a conditional-sale contract.
The plaintiff filed his affidavit on August 28, 1954, and attached to it a copy of the conditional-sale contract. This contract, executed March 15, 1954, specified among other things that the total amount was due in one payment on August 15, 1954, that time was of the essence of the contract, that, until the total amount due was paid, title was to remain in the seller, and that the seller made no warranty, express or implied, and the purchaser accepted delivery under the warranty (if any) of the manufacturer only.
The defendant filed his affidavit of illegality on September 1, 1954, and posted his bond, which was approved by the sheriff. The affidavit as amended alleged: that he was not indebted to the plaintiff for any amount and that the conditional-sale contract was void; that the consideration on which the conditional-sale contract was based had partially failed, in that the pickup truck which is the foundation of the conditional-sale contract was represented by the seller as being mechanically sound and free from defects in material and workmanship; that the defendant relying on this representation, believing same to be true, bought this pickup truck as a new truck for the agreed price; that, at the time of the purchase of the truck, it had a defective motor due to a defect in the material and workmanship of said motor, and because of such defect it failed to perform as it should; that the motor uses a large quantity of oil, that it runs hot, and the truck is not worth more than $1,000; that the defendant is not justly indebted to the plaintiff in any amount; and that the plaintiff knowingly and wilfully misrepresented the condition of said pickup truck, and the defendant, believing such representations to be true, relied on them. The misrepresentations were alleged to be as follows: 1. That the oil was two quarts low at the time the truck was purchased by the defendant, and the plaintiff through its agents represented to the defendant that it was not due to any defect, but that it had not been put in the truck. 2. That the motor was represented as being new, but knowing that it had been driven with the speedometer disconnected and that the oil had been burned or thrown out. 3. That the plaintiff induced the defendant to sign the conditional-sale contract without reading it by representing to him that the truck was free from defects in material and workmanship, and that the company would make good any defect in material or workmanship for a period of 90 days or 4000 miles, whichever occurred first. 4. That the plaintiff induced the defendant to sign the conditional-sale contract without first reading it by the false representation that the company was back of its trucks, and that the contract was just a promise to pay which provided for collateral security. 5. That the defendant relied on the statements of the plaintiff and entered into the contract not knowing that the representations were false.
The plaintiff demurred to the defendant's affidavit, in that the conditional-sale contract shows that the seller made no warranty, express or implied, and that the only warranty to the purchaser, if any, was the manufacturer's warranty; that the pleadings of the defendant did not set forth any valid defense to the foreclosure proceedings. And the plaintiff specially demurred to the amended affidavit, in that it does not, as a whole, show any fraud on the part of the plaintiff; and the defenses stated by the defendant as to why he did not read the contract before entering into it do not excuse him from reading such contract.
On the trial, the defendant offered a second amendment to his affidavit in which he sought to set forth the warranty of the manufacturer and allege that such warranty had been breached, that it was executed contemporaneously with the purchase of the truck, and that the defects and necessity for parts to cure said defects had been brought to the attention of the plaintiff and the manufacturer who issued such warranty. A motion to disallow this amendment was sustained. The plaintiff's demurrers were sustained, striking the defendant's affidavit as amended. The defendant excepts to the orders disallowing the second amendment and sustaining the plaintiff's demurrers, thereby striking the affidavit of illegality as amended.
1. The defendant's second amendment to his affidavit of illegality sought to set up the warranty of the manufacturer as a part of the contract, and to allege that it had been breached. While there is no question that the manufacturer's warranty was a part of the conditional-sale contract here sought to be foreclosed, there are no pleadings that the manufacturer breached the terms of its warranty. The conditional-sale contract stated in part: "Seller makes no warranty express or implied, and purchaser accepts delivery under the warranty (if any) of the manufacturer only." The manufacturer's warranty states in part, "The Ford Motor Company warrants all such parts of new Ford automobiles, trucks and chassis, except tires, for a period of ninety (90) days from the date of original delivery to the purchaser of each new Ford vehicle or before such vehicle has been driven 4,000 miles, whichever event shall first occur, as shall under normal use and service, appear to it to have been defective in workmanship or material." (Emphasis ours.) On the reverse side of this warranty the selling dealer is bound by the following language: "Should the replacement of parts become necessary under the warranty, we, the selling dealer, will make the replacement without any charge for the parts or for the labor required to replace them." (Emphasis ours.) Nowhere in the defendant's affidavit does he allege that the plaintiff has breached his part of this warranty by refusing to install any parts furnished by the manufacturer under this warranty, nor under this express warranty is anyone other than the Ford Motor Company given any discretion in determining whether any parts are defective. There is no merit in the contention of the defendant that the trial court erred in disallowing this amendment.
2. The defendant in his affidavit as amended sets forth that the plaintiff's agents misrepresented the condition of the truck to him, in that at the time of the purchase the oil in the truck was two quarts low, and the plaintiff's agents told the defendant that the oil had never been put into the truck, knowing that the truck had been driven with the speedometer disconnected and that the oil had been burned or thrown out. The sale was made upon a conditional-sale contract, which stated that the seller made no warranty, either express or implied. Where the contract has been reduced to writing and no warranty either express or implied is made by the seller, the buyer will not be permitted, while affirming the contract, instead of rescinding it, to plead damages by failure of consideration by showing that the seller made false representations with reference to the subject matter of the sale. Purser v. Roundtree McAfee, 142 Ga. 836 ( 83 S.E. 958); Harrell v. Holman, 21 Ga. App. 159 ( 93 S.E. 1021). There is an exception to this general rule, where there are circumstances that the purchaser was fraudulently deceived or he is otherwise excused from reading the contract. See Purser v. Roundtree McAfee, page 839 (supra). The next question is whether or not the defendant according to his amended affidavit set forth sufficient circumstances to excuse him (as a matter of law) for not having read the conditional-sale contract before signing it. The defendant states in his amended affidavit that the plaintiff represented to the defendant that the truck was free from defects in material and workmanship, and that the company would make good any defects for a period of 90 days or 4,000 miles. The defendant further alleges that the plaintiff made the false representation to him that the contract was a promise to pay which provided for collateral security, and the company was back of its trucks. None of the reasons assigned appears to be such as would authorize the defendant to sign the contract without first reading it. The law does not afford relief to one who suffers by not using the ordinary means of information that may be at hand. Miller v. Roberts, 9 Ga. App. 511, 512 ( 71 S.E. 927); Love v. Nixon, 82 Ga. App. 445, 452 ( 61 S.E.2d 423); Lewis v. Foy, 189 Ga. 596, 601 ( 6 S.E.2d 788). It necessarily follows that the trial court did not err in disallowing the defendant's second amendment or in sustaining the plaintiff's demurrer to the affidavit as amended.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.