145 Ga. App. 167 | Ga. Ct. App. | 1978
First State Bank brought this action against Roger Budd Chevrolet Company in two counts alleging negligence and breach of warranty. Defendant answered, denying the material allegations and alleged that plaintiff was contributorily negligent. The evidence at trial showed that a third party Cupstid entered into a loan contract with plaintiff bank for the purchase of an automobile from the defendant. Plaintiff issued a draft in
1. Although it is undisputed that plaintiff has never received a certificate of title to this vehicle showing plaintiffs lien, the evidence does not demand the finding that no application for a Georgia certificate of title showing plaintiff as lienholder was ever made. The testimony of the president was hearsay as it was based on what his employee was told by someone in Atlanta. Code § 38-301; Maryfield Plantation v. Harris Gin Co., 116 Ga. App. 744 (159 SE2d 125). This hearsay was not competent and will not establish the breach of the express warranty. Thus, the evidence with all reasonable deductions therefrom, does not demand a verdict for plaintiff on the breach of warranty count of plaintiffs complaint. CPA § 50 (Code Ann. § 81A-150).
2. The evidence likewise does not demand a verdict for plaintiff with reference to plaintiffs allegation that defendant was negligent in not obtaining a Georgia certificate of title showing plaintiff as the first lienholder, nor does it demand a verdict for defendant on its asserted defense that plaintiffs negligence in not repossessing the vehicle was the cause of its loss. These are jury questions.
Judgment reversed.