Opinion
34090.
DECIDED JUNE 17, 1952. REHEARING DENIED JULY 1, 1952.
Complaint; from Fulton Civil Court — Judge Lowe. March 21, 1952.
Johnson, Hatcher, Rhudy Meyerson, for plaintiff in error.
Dunaway, Howard Embry, contra.
1. Where suit is brought on an express warranty, but the defendant contends that the words used go no further than and are the substantial equivalent of an implied warranty, he has a right to plead facts showing that he would not be liable under an implied warranty because the goods retailed by him came directly from the manufacturer in sealed containers.
2. A statement by the retailer that he promised the purchaser to stand behind the products, coupled with his admission that he knew that the plaintiff would look to him rather than the manufacturer to make good any defect amounts to such express warranty of the product as will bind the retailer, regardless of his lack of knowledge of defects in the goods sold.
DECIDED JUNE 17, 1952 — REHEARING DENIED JULY 1, 1952.
J. A. Postell filed suit in the Civil Court of Fulton County against Boykin Tool Supply Co. Inc., for a breach of an express warranty on the sale of a quantity of paint, alleging that the plaintiff, in purchasing the paint, relied upon the express warranty of its fitness; that the paint, when applied, refused to adhere to the walls, and in consequence the plaintiff had to spend further sums to remove the defective paint in order to apply new paint. The defendant denied the material portions of the petition, including the allegation that he had expressly warranted the paint, and alleged as follows: "Defendant admits that it sold paint to plaintiff in original cans as offered for sale to the public by the manufacturer thereof, said cans being sealed by the manufacturer and defendant being unable to inspect the contents thereof." A demurrer to this paragraph of the answer on the ground that it was immaterial was overruled, and the defendant preserved his exceptions.
The testimony on the trial of the case was to the effect that the plaintiff consulted with the defendant about the type of paint to be used on the job he desired done, which contained a variety of surfaces including new woodwork, old woodwork, new plaster, old plaster, sheet rock, and beaverboard. Either the defendant personally or one of his employees examined the surfaces to be painted. The defendant was not an expert in paints and so informed the plaintiff. Valon paints were recommended, and the defendant showed the plaintiff the manufacturer's literature which stated that the paints would cover any surface whatever. The plaintiff then testified to the following conversation with the defendant: "Well, again, I know nothing about the paint but we would like to buy it from you just on a personal basis and if we will put it on and you will stand behind it, we'll go ahead. . . He said he would. . . If we buy it and put it on according to the directions, are you going to stand behind it, and he said he would. I said, okay, that's all I want to know."
The defendant testified in part as follows: "I went out to the building and saw this peeling off. I did not consider that a good job had been obtained in the painting of these walls with Valon paints. . . I saw where the walls were peeling off. . . possibly a month after the job was done, where I remember the main room, the plaster, it was coming off in sheets. . . You ask if I meant when I told him I would stand behind it that he could have recourse on me if the paints were not satisfactory, I meant he could have recourse on Valentine, the manufacturer. . . I felt that the reputation of Valentine was such that they could stand behind me and I could stand behind him and I did everything I could to make them make it good, too. You ask if I meant that if anything went wrong I would protect Mr. Postell in using my paints, insofar as I could, yes, sir. . . You ask if I knew that Mr. Postell was looking to me to stand behind the paint rather than the manufacturer, yes, sir, I guess I did in a way, but they would have made it good." The undisputed evidence was to the effect that the paint was applied in accordance with directions (except that small additions of turpentine purchased from the defendant were made when it was too thick) by an experienced painter whose work had always given satisfaction; that both old and new surfaces peeled off; and that when the old paint was removed and another paint was used it proved to be satisfactory.
The judge, sitting without a jury, found for the defendant. The plaintiff filed a motion for a new trial on the general grounds only, and the overruling of this motion is assigned as error.
1. The defendant contended that the statements used amounted to nothing more than an implied warranty. Where goods are sold in the manufacturer's original sealed containers, and there is nothing to put the retailer on notice that they are not as represented to be, he is not liable on an implied warranty. Davis v. Williams, 58 Ga. App. 274 ( 198 S.E. 357). It is only in the absence of an express warranty that resort can be had to an implied warranty. Johnson v. Latimer, 71 Ga. 470; Malsby v. Young, 104 Ga. 205 ( 30 S.E. 854). Where the words used go no farther than and are the substantial equivalent of an implied warranty, the law relating to the latter will control. Turner Bros. v. Clarke, 143 Ga. 44 (2) ( 84 S.E. 116). The defendant denied that there was an express warranty, or that he intended an express warranty, and he therefore had a right to show that the goods came to him in their original packages. The overruling of the special demurrer to that part of the answer setting up these facts was without error.
2. A warranty, whether express or implied, necessarily enters into the consideration of the article sold. Pryor v. Ludden Bates, 134 Ga. 288, 292 ( 67 S.E. 654); Commercial Credit Co. v. Lewis, 59 Ga. App. 144 (2) ( 200 S.E. 566). No particular form of words is necessary to constitute a warranty, but the question is what the parties intended. Turner Bros. v. Clark, supra. To recover for an express warranty it is necessary to show that the dealer intended the statement to be an express warranty and knew that the purchaser was relying on it as such; mere words of recommendation are not sufficient to constitute such a warranty. Bel v. Adler, 63 Ga. App. 473, 477 ( 11 S.E.2d 495); Meyer v. Rich's Inc., 63 Ga. App. 896 ( 12 S.E.2d 123).
Here, however, the defendant recommended the product on the basis of the manufacturer's representations and his experience with it, but he also went farther, and, as testified, told the plaintiff, "I will stand behind it." He admitted that he knew at the time of this statement that the plaintiff was looking to him rather than to the manufacturer to stand behind the paint. The words, "I will stand behind it," may and usually do amount to an express warranty. Mosby v. LaRue, 143 Ky. 433 ( 136 S.W. 887). Indeed, we can hardly imagine a different implication for these words as here used. The defendant admitted in effect that he knew this was the construction placed upon them by the plaintiff. A warranty being a part of the consideration of a contract, the rule stated in Code § 20-703 that, where the intentions of the parties may differ among themselves, the meaning placed on the contract by one party and known to be thus understood by the other shall be held to be the true meaning, is applicable here. See C. V. Hill Co. Weinberg, 67 Ga. App. 44, 46 ( 19 S.E.2d 430). Where an express warranty is made, it is immaterial whether or not the seller bases the same upon his own knowledge. Terhune v. Dever, 36 Ga. 648; Williamson v. Walker, 24 Ga. 257 (71 Am. D. 119).
It follows, therefore, that the evidence demanded a finding that the seller, in stating that he would stand behind the paint, knew that the plaintiff would look to him rather than to the manufacturer to make good any defect, and sold the paint subject to this condition; that the paint was defective, and that the amount sued for represented the paints originally purchased plus the labor of putting them on and subsequently removing them, and that this labor was necessary in order that the new paint would adhere to the surfaces. The evidence therefore demanded a finding in favor of the plaintiff, and the judge erred in denying the motion for a new trial.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.