Opinion
No. 39827.
December 12, 1955.
1. Judgments — non obstante veredicto — proper.
In suit by seller to recover a deficiency judgment against buyer under conditional sales contract for an automobile, where buyer offered no competent evidence to sustain his defense, Trial Court should have granted seller's motion for a directed verdict, and subsequent granting of seller's motion for judgment notwithstanding the verdict was nothing more than a correction of Court's error in refusing first motion, and was proper even though there is no statute in Mississippi which authorizes the rendition of judgment notwithstanding the verdict.
Headnote as approved by McGehee, C.J.
APPEAL from the Circuit Court of Lee County; RAYMOND T. JARVIS, Judge.
Cason Rankin, Tupelo, for appellant.
I. The representation that the appellee did guarantee the motor block of said automobile to be sound was a material representation, and Palmer had the right to rely on Hendrix's representation. He had no means at the time of determining that it was false. Mayfield Motor Co. v. Parker, 222 Miss. 152, 75 So.2d 435.
II. A misrepresentation by a seller of a material fact, inducing the purchase, is a fraud in law although the seller may be ignorant of the truth of the statements. Fay Egan Co. v. Louis Cohn Bros., 158 Miss. 733, 130 So. 290; Lizana v. Edwards Motor Sales Co., 163 Miss. 266, 141 So. 295; Touchstone v. Bond, 223 Miss. 487, 78 So.2d 463.
III. The Court erred in sustaining the motion for a judgment notwithstanding the verdict. 49 C.J.S., Sec. 60 (A) pp. 148-49.
Claude F. Clayton, Tupelo, for appellee.
I. Appellant pleaded an oral warranty of condition of the used automobile involved in this transaction and offered proof to show that the vehicle was in a condition contrary to said oral warranty. Upon timely objection to this proof, the Circuit Court properly excluded this evidence from the jury.
II. The conditional sale contract signed by appellant among other things provided as follows: "No agreement, promise, representation, statement or warranty, whether oral or written, express or implied, shall be binding on the holder unless expressly contained herein." No contention is made that there is any warranty contained in the contract which, of course, speaks for itself.
III. It is established law that prior oral representations are marged in a written contract. There are numerous authorities to sustain this view. Dowling v. Smyley, 150 Miss. 272, 116 So. 294; J.I. Case Threshing Machine Co. v. McCoy, 111 Miss. 715, 72 So. 138; McInnis v. Manning, 131 Miss. 119, 95 So. 250.
IV. It is also settled law in this State that parol evidence is not admissible to vary the terms of a written contract. Edrington v. Stephens, 148 Miss. 538, 114 So. 387; Grenada Auto Co. v. Waldrop, 188 Miss. 468, 195 So. 491; Stirling v. Logue, 154 Miss. 812, 123 So. 825; Taylor v. C.I.T. Corp., 187 Miss. 581, 191 So. 60.
V. Equally as well settled in this State is that there is no implied warranty in a present executed sale of an automobile by a dealer. Bellville Supply Co. v. Dacey, 141 Miss. 569, 106 So. 818; Gerard Motor Co. v. McEachern, 150 Miss. 437, 116 So. 816; Industrial Finance Corp. v. Wheat, 142 Miss. 536, 107 So. 382; Watts v. Adair, 211 Miss. 777, 52 So.2d 649.
VI. Hence, since any oral representations made were merged into the written conditional sale contract, and since parol testimony cannot be offered to vary the terms of an unambiguous written contract, and since there is no implied warranty with respect to a used automobile, the action of the Circuit Judge in excluding the evidence offered by appellant with respect to a claimed oral warranty and with respect to the condition of the vehicle was eminently proper.
VII. When the jury erroneously returned a verdict for the appellant, the Circuit Judge, realizing his error, in allowing the case to go to the jury, upon proper motion therefor and relying upon the case of Boyle Gin Co. v. Moody, 188 Miss. 44, 193 So. 917, very properly entered a judgment for appellee notwithstanding the erroneous verdict of the jury.
This is a case wherein the appellee, William R. Gardner, doing business as Gardner Motors, sued the appellant, A.T. Palmer, to recover a deficiency judgment under a conditional sales contract of a 1946 Ford automobile. The car was nearly seven years old at the time of its sale. The defendant relied upon an express oral warranty allegedly made to him by the sales agent of the plaintiff as to the condition of the automobile at the time of the sale, and particularly to the effect that the seller would guarantee that the motor-head was not burst. However, the written contract of sale contained a recital that the purchaser "has examined, accepted in its present condition, and received delivery from the seller of the motor vehicle described above", and it further recited: "No agreement, promise, representation, statement or warranty, whether oral or written, express or implied, shall be binding on the holder (of the contract) unless expressly contained herein".
After meeting the first two monthly installments of the deferred time price of the automobile, the purchaser claims to have discovered the alleged defect in the motor-head and thereafter failed to pay any further installment on the purchase price. The car was repossessed and offered at private sale as authorized by the contract. The appellee obtained three bids therefor from other automobile dealers, and then allowed credit to the appellant on the balance due of approximately twice the amount of either of the three bids, and thereafter sued to obtain the deficiency judgment.
(Hn 1) No competent evidence was offered to sustain a defense to the suit. But the court refused to direct a verdict in favor of the plaintiff, and the jury rendered a verdict in favor of the defendant. Thereafter, on motion of the plaintiff for a judgment notwithstanding the verdict, the court entered a judgment in favor of the plaintiff for the balance shown to be due on the automobile in question, and which action of the court we think was correct.
The appellant contends, however, that we have no statute in this state which authorizes the rendition of a judgment notwithstanding the verdict, and that therefore the action of the trial court constitutes reversible error. We think that where a trial court should give a directed verdict in favor of the plaintiff, the subsequent sustaining of a motion for a judgment notwithstanding the verdict amounts to nothing more than a correction of the court's error in refusing a requested peremptory instruction. The judgment appealed from must therefore be affirmed.
Affirmed.
Hall, Kyle, Arrington and Gillespie, JJ., Concur.