28 S.E.2d 184 | Ga. Ct. App. | 1943
Lead Opinion
1. The motion to amend the brief of the evidence in the record in this court is denied.
2. It appearing conclusively from the evidence that the plaintiff traded for the automobile under the first contract, and there being no evidence that the first contract was procured by fraud, the plaintiff showed no right to recover, and the court erred in overruling the motion for a new trial.
3-5. The special grounds of the motion for a new trial are without merit.
On the second trial of the case the evidence as to the transaction was similar to that set out above. The plaintiff testified as to her education: "I was in the first grade when I quit. I can write my name. . . I know my A B C's I learned to count to a hundred. Yes, sir, I would say my education consists of writing my name, counting to a hundred, and knowing my A B C's. Yes, sir I know a figure when I see it. I don't know high figures but I know some figures. Well, I know figures in combinations up to a hundred — like that. I would know that. I don't know, if a combination of four figures was presented to me, that I, could read that. Yes, sir, I know figures in individual units." It is conceded by both sides that the note and contract she signed called for a 1936 model Packard automobile. The plaintiff testified that when she was asked to sign the contract the seller fraudulently represented the car to be a 1937 Packard, and "at the time he made the new notes the representation he made about the car he was describing in the note was a 1937. When he gave me the new note he said about the model that he had the new contract made and ready for me to sign for the 1937 Packard." Her husband testified that the salesman said: "I got your new notes fixed up for your 1937 Packard." The salesman testified that he never represented the car to be a 1937 model, but that he told her it was a 1936 model, saying, "You know this is a 1936? and that she answered, "Yes;" that no guarantee was made, and that he did not represent it to be a 1937 Packard, and that he said, "Here's your new contract, sign it." It further appeared from the evidence that the plaintiff, in a day or two after signing the new contract, sought to rescind the contract, offering the Packard car to the seller and demanding that *301 the seller return to her the Plymouth car; that the seller refused to deliver the Plymouth car unless she would pay for certain repairs which it said had been necessary to make. The plaintiff testified that she had not authorized the repairs to be made on the car and that she refused to pay for the same. Thereafter the present action was brought.
1. In this court the plaintiff in error filed a written motion to amend the brief of evidence, reciting that the second contract between the parties had been lost, but that it had been agreed between them that the first contract, which was introduced in evidence, was identical with the second except as to the amount of the deferred payment, which agreement was said to be of record in the trial court; and this court was requested to direct that the clerk of the trial court send to this court the said contract, or a brief of the warranty clause therein, and the alleged agreement between the parties, and that the brief of evidence be thereby amended. In dealing with a request to amend a brief of evidence appearing in the record before this court, it was said in National Life Accident Insurance Co. v. Carter,
2. It appears conclusively from the evidence that the plaintiff traded for and bought the automobile under the first contract. She has made no complaint as to any fraud inhering in the execution of the first contract, and there is no evidence tending to show that she was induced to buy the automobile, which she bought under the first contract, by any fraudulent representations made by the seller. Assuming for the sake of argument that the evidence was sufficient to show that the second contract was fraudulently induced and therefore void, the elimination of the second contract would place the parties in the position occupied immediately before the execution of the second contract, to wit, their position under the first contract. Since there was no evidence that the first contract was procured by fraud, the plaintiff showed no right to recover, and the court erred in overruling the motion for a new trial.
3. One special ground of the motion for a new trial refers to the contract of purchase having been introduced in evidence and quotes from its provisions, including one as to exclusion of warranties, and it is contended that under the terms of the contract the plaintiff was bound for the purchase price of the 1936 Packard, and because of the waiver of warranties she can not contend that the car was represented to her as a 1937 Packard. This ground can not be considered, even if the plaintiff could be said to be able to read, inasmuch as no copy of the contract appears in the record in this court.
4. The second special ground of the motion for a new trial complains that the court erred in stating to the jury that the court was of the opinion that no question of emergency was involved in the case in connection with the execution of the contract. The evidence demanded a finding that no emergency existed, and neither party contends that any emergency arose. Accordingly, the statement of the court was not harmful error.
5. The court did not err in refusing to give a requested written charge as follows: "If you believe from the preponderance of testimony that the plaintiff's husband was her agent for the reading and writing of her contracts and business matters, was present at *303 signing of contract, had an opportunity to read same but did not do so, then it will be your duty to find for defendant." There was no evidence whatever that the husband of the plaintiff was her agent for the purpose of reading the contract, or having it read to him on her behalf.
Judgment reversed. Stephens, P. J., and Felton, J., concur.
Dissenting Opinion
I think the judgment of the trial court should be affirmed, and therefore dissent from the ruling made in division 2 of the above decision, which reverses the judgment of the trial court. The jury was authorized to find from the evidence that at the time the first contract between the parties hereto was made, the salesman of the Southern Auto Company represented to Mrs. Fletcher that the automobile which he was trading to her was a 1937 Packard; that it had a sign pasted on the windshield saying it was a 1937 model Packard; and that the salesman of this automobile company told the lady employee in the office of the company to order a tag (license number) for a 1937 Packard that he was trading to Mrs. Fletcher; that within a day or two after the first trade was made, Mrs. Fletcher brought the car back to the company, complaining that it used too much oil, and after some negotiations the parties by agreement rescinded or canceled the first contract and entered into the second contract, which was in the form of a note and sales contract; and according to the evidence of the plaintiff, the salesman of the automobile company represented to her at that time that the written contract called for a 1937 Packard. The jury was authorized to find from the evidence that the plaintiff was not able to read the contract so as to understand that it called for a 1936 Packard, instead of a 1937 Packard. The second contract is the one here involved and in fact is the only one in existence, as the evidence of both parties shows that the first contract was canceled by agreement of the parties. The first contract was canceled and the sale of the automobile to the plaintiff was consummated by the second contract, and under the evidence, this second contract extinguished the first one. SeeFarmers Merchants Bank v. Rogers,
The plaintiff in error contends, however, that no artifice or fraud was practiced upon her in procuring her signature to the contract. This contention can not be upheld if the testimony on her behalf is to be accepted. The jury was authorized to find that the salesman said to her that the contract provided for a 1937 model Packard. His representation was, in my opinion, equivalent to stating to her: "Here is your contract. It calls for delivery to you of a 1937 Packard;" but even if ambiguous the jury would be warranted in so construing his remark. Accordingly, this amounted to a trick or device reasonably calculated to induce her to believe that she was to receive a 1937 Packard, and not a 1936 Packard which in fact the contract called for.
The evidence in behalf of the plaintiff on the second trial as to the misrepresentations made to her by the salesman of the defendant *305
with reference to the model of the car as described in the last contract, distinguishes the case as it now stands from the ruling made in
The plaintiff elected to take a money verdict. There was evidence that the reasonable value of the Plymouth car was about $510 at the time of the conversion, less the amount of expense in repairing it, which was shown to be from $60 to $100. The jury returned a verdict for $410, with interest from the date of the conversion, the correctness of the amount of which is not questioned. I think the verdict was authorized, and that the court did not err in overruling the motion for a new trial. I concur in divisions 1, 3, 4, and 5 of this decision, but dissent from the ruling in division 2 thereof.