Opinion
44638, 44639.
ARGUED SEPTEMBER 11, 1969.
DECIDED OCTOBER 17, 1969. REHEARING DENIED NOVEMBER 7, 1969.
Action for damages. Fulton Superior Court. Before Judge Williams.
Lewis, Lewis, Spearman Bynum, Thomas J. Lewis, Jr., Eugene A. Deal, Joe H. Bynum, Jr., for appellant.
Levine Cohn, Morton P. Levine, for appellee.
The trial judge erred in granting a summary judgment for an amount as "reasonable hire" of an automobile since that issue could only be determined by the use of opinion evidence.
ARGUED SEPTEMBER 11, 1969 — DECIDED OCTOBER 17, 1969 — REHEARING DENIED NOVEMBER 7, 1969.
James A. Romines filed a complaint in the Superior Court of Fulton County against Wagstaff Motor Company, Inc. The plaintiff alleged: that defendant was indebted to him in the sum of $1,870.50 actual damages, said amount being comprised of a cash down payment on a 1966 Plymouth vehicle of $287.85, $1,370 being the value of a 1963 Pontiac automobile, personal effects of $64.65 and a deficiency judgment of $150; plus $250,000 as punitive damages; that on May 5, 1966 he entered into an oral agreement with defendant to purchase a new 1966 Plymouth automobile and in addition to making a cash down payment of $287.85, he traded in his 1963 vehicle of an alleged value of $1,370. "During his absence the defendant commenced to draw up numerous documents and, when plaintiff had completed the job of transferring his personal effects, as aforesaid, he again entered the office of defendant and, without being given an opportunity to read the documents, he was asked to initial and sign in many places on documents which he assumed complied with the oral agreement heretofore referred to."
It was further alleged that later the same day, defendant notified plaintiff that he owed $500 more than orally agreed upon and that he "at that time looked at the paper he had signed and realized that the figures were not the same as those orally agreed upon"; that some 21 days later while at the defendant's place of business, defendant took possession of the 1966 vehicle and refused to return it and certain personal property or the plaintiff's 1963 vehicle.
The defendant filed an answer in which it admitted it was indebted to the plaintiff in the amount of $67.85, this being the amount of the down payment the plaintiff paid less $220 claimed by the defendant as hire for the 22 days the plaintiff had the automobile prior to its repossession. Subsequently, the defendant filed a motion for summary judgment and a motion to dismiss. The pleading and documents filed in support of the motion for summary judgment revealed that: the plaintiff's signature was on a check for $500 given as a portion of the down payment on the automobile; the check was returned from the bank; as a result of the check being unpaid the defendant elected to rescind the sale contract and repossessed the 1966 automobile; the defendant had offered to return the plaintiff's personal property that was in the automobile but the defendant had failed to accept the offer; G.M.A.C. repossessed the plaintiff's 1963 Pontiac while it was on the defendant's lot because of the plaintiff's failure to keep the payments current.
The defendant's motion to dismiss was overruled and its motion for summary judgment was granted. The plaintiff appealed the granting of the summary judgment and the defendant filed a cross appeal to the overruling of its motion to dismiss.
1. The plaintiff argues that there was an issue of fact as to whether the written sale agreement reflected the same terms as those that had been agreed upon orally, however he admitted that it was his signature on the documents. While the petition alleged that he was asked to sign the papers without being given an opportunity to read them, there was no allegation that the plaintiff was prevented from reading the documents by any trick or fraud of the defendant. Therefore the plaintiff was bound by the terms of the written contract. B. E. Robuck, Inc. v. Walker, 212 Ga. 621, 623 ( 94 S.E.2d 696). Furthermore, parol evidence as to the terms of the agreement made prior to execution of the document is not effective to vary the terms of the written contract. Cleghorn v. Shields, 165 Ga. 362 ( 141 S.E. 55); Code Ann. § 109A-2-202 (Ga. L. 1962, pp. 156, 177).
2. The plaintiff further contends that there was an issue of fact whether he signed a check for $500 payable to the defendant. The plaintiff having admitted it was his signature on the check, his contention is without merit and is controlled by Division 1 of this opinion.
3. The plaintiff further states that the summary judgment should not have been granted because the defendant allowed G.M.A.C. to repossess his 1963 Pontiac. The record shows that the Pontiac was repossessed because of the plaintiff's failure to keep the payments current after the defendant had elected to rescind the sale contract due to the failure of the plaintiff's $500 check to clear the bank.
4. The appellant insists there was also an issue of fact because he asked to "call the deal off and he would redeliver the Plymouth to the appellee and for appellee to return his Pontiac and personal effects, together with his $287.85 down payment." This argument is without merit because the defendant did in fact rescind the sale contract and tender the plaintiff's personal effects to him. However in rescinding the contract the defendant only tendered the plaintiff $67.85 and retained $220 as reasonable hire for the 22 days the plaintiff had possession of the automobile.
There was a provision in the sale contract that if the defendant was unable to sell or assign the contract to financing institutions with which it did business the contract was annulled and the purchaser would be liable to the seller for any damages resulting therefrom. The record contains an uncontradicted affidavit that the defendant was unable to sell or discount the sale contract because of the plaintiff's credit report.
Assuming arguendo the value of the use of the 1966 automobile for the 22 days would constitute damages under the provision of the contract stated above, the granting of the summary judgment for the $220 as "reasonable hire" of the 1966 automobile was error, because that issue could only be determined by the use of opinion evidence. Harrison v. Tuggle, 225 Ga. 211 ( 167 S.E.2d 395); Ginn v. Morgan, 225 Ga. 192 ( 167 S.E.2d 393).
5. Under that which was held in Garrison v. Piatt, 113 Ga. App. 94 ( 147 S.E.2d 374) the cross appeal of the defendant is without merit.
Judgment reversed in Case No. 44638; affirmed in Case No. 44639. Pannell and Evans, JJ., concur.