403 S.E.2d 891 | Ga. Ct. App. | 1991
On January 27, 1984, appellee entered into an agreement with appellant for the lease of a 1984 Mercedes-Benz, imported, sold and warranted by Mercedes-Benz of North America, Inc. (“MBNA”). The evidence is undisputed that over the course of the lease, appellee developed an inconsistent payment history, repeatedly falling behind and having to catch up past due payments months at a time, each missed payment constituting a default under the lease. Moreover, for a time, appellee’s insurance was cancelled for non-payment, also a default under the lease. In a modification letter, appellee declared that the car would be primarily used for personal, family or household purposes. However, Ralph McClure (“McClure”), a real estate agent in appellee’s employ, admitted using the car “95% of the time” to show properties and in performance of his duties as “office manager” of appellee’s real estate business. In March 1985, while driving the car, McClure detected the smell of gasoline. He opened the trunk and discovered gasoline floating in the trunk, one quarter of an inch deep. The car was returned to the original dealership, in accordance with the lease, where repair technicians discovered that the underside was thickly covered with a large amount of mud and dirt, in a quantity never before seen on a car and so thick it could be chiseled away in luge chunks with a screwdriver. Cakes of mud were also in the engine compartment. The car had to be cleaned before the source of the iroblem could be determined. The charcoal canister located under ;he hood, which ventilated the gas tank, was clogged with mud result-ng in a build up o.f pressure in the tank causing the tank to rupture. The canister and the gas tank were replaced under the warranty at no cost to appellee. Two weeks later, the car was brought back, heavily ¡ncrusted with mud, with the same problem. The car was cleaned, md the tank and canister were again replaced at no cost to appellee, ^fter another two weeks the car was again returned for repair, the ventilation system blocked with mud. The car was repaired; however, ppellee never returned for the car and did not make the April pay-nent on the lease. Appellee made no further payments on the lease. Appellant repossessed the car from the dealership. It was sold at an uto auction, and the proceeds of the sale were applied to appellee’s Balance due under the lease. Subsequently, appellant brought this ac-Bion to recover the deficiency. Appellee answered the complaint and Brought a third-party action against MBNA for failure to repair the Bar. The third-party complaint was dismissed before the trial com-Bienced. At the close of appellee’s case, appellant moved for a directed verdict, and the motion was denied. The jury returned a ver-
The evidence is undisputed that the lease signed by appellee listed appellant as lessor of the vehicle, that the vehicle was provided to appellee, and that contrary to the lease agreement, appellee stopped making payments to appellant.- “Therefore, the issue presented for resolution is whether [appellee] produced sufficient evidence to create a jury question as to the existence of any viable de fense to [his] obligation to appellant under the lease agreement. If [he] did, the trial court did not err in denying appellant’s motion for a directed verdict. If [appellee] did not produce such evidence, the trial court erred in failing to grant a directed verdict in favor of appellant.” Citicorp Industrial Credit v. Rountree, 185 Ga. App. 417 (1) (364 SE2d 65) (1987).
Appellee relied on OCGA § 44-12-63 (3), as a defense to his suspension of payments on the lease, which requires a bailor, such as appellant, “[t]o warrant the right of possession and that the thin£ bailed is free from any secret fault rendering it unfit for the purposes for which it is hired.” Appellee contended that the “flooding of gaso line in the trunk area” was a secret fault and that a representation bj a mechanic that the car could not be repaired justified his action However, the lease agreement provided that appellee acknowledges that appellant “[made] no express warranties regarding the vehicle a,' to its condition, merchantability or fitness for use, that [appellant disclaim [ed] any implied warranties, and that [appellee was] leasinj [the vehicle] from [appellant] ‘as is.’ ” The agreement also stated tha “[t]he monthly rent shall be paid for the full term of the lease with out notice or demand and without setoff, counterclaim, reduction abatement, suspension, deferment or any other defense because of th disappearance, theft, destruction, levy, judicial seizure or unsatisfac tory performance of the vehicle or for any other reason whatever, un less this lease is terminated under an express provision of this agree ment.” (Emphasis supplied.) “ ‘[P]arties are free to contract and ma by express agreement enlarge, abridge, qualify, or supersede obliga tions that otherwise would arise from the bailment by implication c law — so long as the contract does not violate statutory law or contra vene public policy — and, so long as such restrictions are expressed ifl clear and unambiguous language.’ [Cit.]” Id. at 422. “A contract car* not be said to be contrary to public policy unless the General Assert! bly has declared it to be so, or unless the consideration of the contra! is entered into for the purpose of effecting an illegal or immorJj agreement or doing something which is in violation of law. [Cits.]!
Judgment reversed.
