*1 (1988). 777) Brooks, Morris v. holding upon any reliance questing, I note that begging Without further two-judge deci- was a misplaced, since that case Morris v. Brooks is sound and control- precedential value. Jones thus has no sion and here, than buried. ling praised and should be rather 17, 1988 Daughterty, Schroder, McGhee, H. Donald F. Michael
Glover Gilliland, Jay Riordan, Ingram, Cullen Conley G. T. Robert P. Bennett, appellees. D. KEY CAPITAL CORPORATION AVERY v. 75317. cases).
(two (368 SE2d Presiding McMurray, damages for Avery’s complaint sought plaintiff
In Case No. 57317 Key Capital Corpora- fraud and breach of contract from defendants Avery’s complaint al- Leasing, (Spreen). Inc. (Key) Spreen tion Mercedes Benz leased to her a 1983 leges Spreen jointly a 1984 model. represented the automobile was having falsely action filed personal property Case a foreclosure make to certain predicated on failure payments rental on the automobile. summary appeals
These from the of a motion arise The judgment in each case. party court defendant also ordered that be removed Held: 75317. The parties the lease contract. lease Spreen were to Spreen by provided contract was embodied in a form which was Key. Key. The the lease lease contract authorized Key, as the Key. Spreen assigned its interest the contract same assignee of non-negotiable chose takes at the time and the debtor existing Mutual Investment (1 (b)) (64 Security Van Lines Amoco Oil upon to sustain the state provisions relies two contractual of these is con- summary its favor. One judgment was as-
tained within the which the automobile explicitly antici- signed by agreement While the lease pates assignment by Spreen Key, assignment contract,
irrelevant. was not a nor incorporated agreement. its terms into the lease remaining provision contractual issue is the em- phasized followingexcerpt agreement: from the lease “Warran- ties. The Vehicle shall have the benefit of the manufacturer’s new car *2 guarantees apply warranties or that to the Vehicle or its accessories. [Key] express implied, Dealer and warranties, make no other re- garding including Vehicle, warranties of MERCHANTABILITY [Avery] OR FITNESS FOR A I PARTICULAR PURPOSE. under- complaints regarding stand and that all or claims that I have operation Vehicle, accessories, its the or its bewill asserted me only against (Emphasis or its authorized dealers.” manufacturer supplied.) Key argues emphasized language precludes any that the by Avery. Undoubtedly may permit a lease a lessor provide the lease and take free from all might defenses or claims which the lessee have. See Short v. Gen. (148 App. 450); Elec. Credit 113 Ga. SE2d and Dalton (222 App. American Co., Truck v. ADBE Distrib. 136 Ga. Holdings App. SE2d Marshall, Chattahoochee 658, v. 146 Ga. judice 660 not issue However, in the cases sub such does appear language language to be the intent of the at issue. The plainly relating addresses matters to the “Vehicle” Avery’s complaint “regard- in identified the lease. and claims are not ing possession Vehicle,” but that she never received of the 1984 “Vehicle” identified and in described the lease. Key subject equities existing Therefore, Avery and at the time of the Mut. Investment (1 App. (b)), supra; Security supra.
Van Lines v. Amoco Oil Genuine concerning issues of material fact remain the relative merits of the Avery claims and counterclaims of The state court in erred granting summary judgments in favor of removing Key in as a defendant in Case No. 75317. complains fifth enumeration of error that Rule 3.2 misapplied. Avery the Uniform Rules for the State Court was moved pursuant to Rules 4.7 and 4.8 of the Uniform Rules to reschedule proper judge. these cases before state court the record any ruling upon fails to reveal this motion nor does the record conclu- sively support Avery’s position on this matter. This enumeration of error is without merit.
Judgments Pope, Beasley, Banke, J., reversed. P. Benham and Birdsong, Carley Sognier, JJ., J., Deen, concur. J., C. JJ., P. part part. concur in and dissent in part. part, dissenting Judge, concurring
Sognier, reversal of the trial respectfully I dissent in favor of a Avery for fraud and breach sought damages which in this case does against Key Capital. The record result of Avery fraud in support for actual not claim affi- Avery Capital’s adduce rebut failed to evidence to testimony davit it believed the car leased from representation Knowledge be a 1984 Benz. that a Mercedes Eckerd’s Columbia being an element a fraud see essential Moore, (1980), summary judgment Key Capital was as matter of law insofar as favor of demanded Key Capital’s participation any wrongdo- involving issue own Paper Co. v. Dillard generally See U-Haul ing is concerned. Key Capital can held affirm disagree basis its status as atively Spreen’s asserting eq
expressly making so liable. (namely, represen Spreen’s alleged uities of tations) situation thereby distinguishes as a which *3 by cited majority. the cases the are asserted as a against Capital’s foreclosure holding reversing completely concur with the the since, summary judgment of of that case favor limiting the absence claims of the itself lessee’s damages lessor, Short v. Gen. Elec. compare the transferor 450) (1966); Ameri Credit Ga. Dalton 113 476 can Truck v. ADBE Distrib. 606 61) (1975), fraud Avery’s claims of breach contract and of viable defenses the In against foreclosure action.
however, Avery affirmatively seeks to hold liable the Key Capital’s assignor, thereby making activities of Spreen’s liability of of Capital. assignee “An a conditional sale is personally liable to vendee for the the conditional by such or sustained vendee because of breach of representations by the conditional vendor. A counter [Cits.] claim or offset an the as against assignee against based on a claim affirmatively. signor only defensively; can be used cannot be used (N.D. Kennedy, First Acceptance Corp. FSupp. [Cit.]” 1951). Iowa bar,
A very discussing case like the the Minnesota much case rights brought of a club who suit buying members consumer contracts, membership Meyers the of the Postal (SCt. case, Supreme Fin. 287 NW2d 614 Minn. In that “Generally, rights are as- Court noted: when contract of Minnesota from the ac- signed, under the contract assignee’s right to collect set-offs, (here, defenses, plaintiffs) count debtor to those assert which the debtor could counter-claims account Thus, case, . . assignor. assignor’s] alleged . the instant [Cits.] [the practices probably fraud and a valid defense deceptive would by assignee]. further under collections [the . . plaintiffs . assignee] seek to hold affirma- [the [account debtors] tively money liable on these con- paid plaintiffs for the return of Minnesota, past damages. tracts and for money The law in most jurisdictions, holds of a contract does not impose upon imposed or liabilities the con- duties specific assump- tract on the of the assignee’s Here, tion of plaintiffs such have introduced liabilities. no evi- [Cits.] assumption by dence of an assignee] assignor’s] [the [the obligations Therefore, al- plaintiffs or liabilities to on these contracts. though may assignor] perform have failed contracts [the made misrepresentations plaintiffs, assignee] is not conse- [the quently assignee.” because of status as its an Id. at 617. plead a cardinal rule of that one law cannot
“[I]t A B because advantage has misled or taken of him.” Johnson v. Dur- rence, In the absence of evidence Capital contractually or otherwise assumed Spreen’s liabilities, I cannot Capital is liable Avery solely on the basis that was as- signee of Spreen. Accordingly, contract with I would affirm the trial court’s Capital in Case No. 75317.
I am authorized Deen Presiding Judge Judge Carley join in this dissent. McLeod,
G. Kennedy Jr., *4 Carmichael, Hunt, William Timothy Hewett, K. John R. W. appellee. v. TANNER et GREEN al.
Carley, his Following employment termination of with Coastal Land