117 Ga. App. 707 | Ga. Ct. App. | 1968
In the first enumeration Americana complains of the refusal to admit in evidence a letter purportedly written by a representative of Guaranteed to a representative of Sika, dated June 4, 1963, containing a narration of past events and statements made by various persons with respect to the problem and how to resolve it. The letter is replete with hearsay and self-serving declarations which the writer uses as a basis to blame Sika and exonerate Guaranteed, and to in
In the second enumeration Americana complains of the refusal to admit in evidence a letter dated October 19, 1962, purportedly from a representative of Sika to Guaranteed stating that the coating, when mixed with certain sand, had nearly the same coefficient of expansion as concrete, but somewhat greater, and suggesting that due to the brittle nature of the product flaking could occur under conditions of changing temperature. The writer informed Guaranteed that Sika recommended another product of greater elasticity for use in coating defective areas where flaking had occurred, which Sika had in production and was shipping to arrive in Atlanta during the week of October 29, 1962. Although it was brought out in the trial that Sika furnished this product to Guaranteed free of charge, there is nothing in the letter, even if the statements therein were made by authority of Sika, which constitutes an admission by Sika of the breach of any implied warranty in the product originally supplied. In essence, the letter merely shows an effort on the part of Sika to assist Guaranteed in correcting any deficiency in the original application, whatever the cause, by suggesting the use of another product, and a speculative opinion, not shown to be that of an expert, as to the possible cause of the failure of the original coating to adhere to the concrete in some places, an event which had long since taken place. It in no way discloses that the product originally furnished was defective and not precisely what it purported to be, Sika Surface Kote, having certain known characteristics, as manufactured and marketed for certain uses by Sika, or that it was not the product which Americana had specified for use in its prime contract. Accordingly-, we consider the letter without probative value in establishing any liability of Sika for breach of an implied warranty in supplying the coating originally used by Guaranteed. The trial judge also properly excluded this letter.
In the seventh enumeration Americana complains of the refusal of the court to allow it to call a witness, a former employee of Sika, for the purposes of cross examination, thus restricting Americana to direct examination of this witness. The witness was district sales manager of the Southeastern District for Sika from January of 1958 until May of 1964, and had represented Sika in the transaction here involved, including efforts to assist Guaranteed in eliminating the defective condition of the original application of Sika Surface Kote. Code Ann. § 38-1801 allows a party to call for cross examination “the opposite party, or any one for whose immediate benefit such suit is prosecuted or defended, or any agent of said party, or agent of any person for whose immediate benefit such suit is prosecuted or defended, or officer or agent of a corporation when a corporation is such party, or for whose benefit such
The eighth and ninth enumerations are directed to the instructions of the court defining “use intended” in reference to an implied warranty. The case arose before the effective date of the Uniform Commercial Code and the court instructed the jury, after quoting former Code Ann. § 96-307 through Subdivision 1, as follows:
“I charge you that this section requires the manufacturer to warrant that the article manufactured and sold is reasonably fit for the purpose anticipated for the article, or materials, or goods; and that the warranty extends from the manufacturer to the ultimate consumer.
“Now, in connection with that code section and in connection with that charge that I have just given you, I also charge you that the warranty implied by law, that an article or articles sold are reasonably suited to the use intended, refers not to any particular intended use by the purchaser, even if such intended use is made known to the seller, but to any use for which the article or articles sold are commonly intended. There is no implied warranty that the thing sold will be suited to the purposes of the buyer.
“I likewise charge you that to recover damages on account of the alleged breach of an implied warranty of merchantability and suitability to the use intended of the Sika Surface Note alleged to have been manufactured by the defendant, the use intended means not the particular use intended by the purchaser, even though known to the seller, but means only such uses as the article may have been manufactured for by the Sika Chemical Corporation.”
Unlike the situation ruled upon in Division 3 of this opinion, counsel for the plaintiff did note a renewal of objections after the court had instructed the jury with respect to the defendant’s requested instructions, Nos. 2 and 3, which are in substance the content of the second and third paragraphs of the foregoing excerpt, and when viewed with the objections previously made, we consider the action sufficient to preserve as an issue the definition of “use intended" in reference to an implied warranty.
The remaining enumerations are without merit. The court did not err in directing a verdict for Sika on the first count in the absence of any proof of an express warranty; the jury was authorized under the evidence to find for Sika on the second count with respect to the breach of an implied warranty; no basis appears for any reason assigned for holding that the judgment is contrary to law, and the court did not err in overruling the motion for new trial.
Judgment affirmed.