Stewart v. Gainesville Glass Co.
206 S.E.2d 857
Ga. Ct. App.
1974
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STEWART v. GAINESVILLE GLASS COMPANY, INC. et al.

48839

Court of Appeals of Georgia

May 8, 1974

Rehearing denied May 9, 1974

131 Ga. App. 747 | 206 S.E.2d 857

privies.” 46 AmJur2d 551, Judgments, § 382. “Whеn a valid and final personal judgment in an action for the recovery of money is rendered in favor of a plaintiff, he cannot thereafter mаintain an action against the defendant on the cause of action, but he can maintain an action on the judgment.” 47 AmJur2d 34, Judgments, § 915. As held in

: “The original cause of action is annihilated and the judgment becomes its substitute.” See
.

The stipulation that Count 2 had been reduced to the judgment in Count 1 narrowed the plaintiff‘s scoрe for recovery to Count 1 if at all.

2. It is also contended the burden was upon the defendant to establish the plea of res judicata and that thе record fails to reveal that such defense was proven.

;
. What the plaintiff overlooks is that in this court the burden is on the appellant to estаblish that error was committed by the trial court in its ruling.
;
. There is nothing in this record to show that the trial court committed error. That being true, it was not error to enter judgmеnt in favor of the defendant.

Judgment affirmed. Bell, C. J., and Clark, J., concur.

SUBMITTED APRIL 1, 1974 — DECIDED MAY 8, 1974.

Kirby G. Bailey, for appellant.

Cochran, Camp & Snipes, J. A. Cochran, Paschal A. English, Jr., for appellee.

ARGUED JANUARY 10, 1974 — DECIDED APRIL 12, ‍‌‌​‌‌‌‌‌‌​​​​‌‌‌‌​​​‌​​​​‌‌​‌‌‌​​‌​​​‌​​​‌​‌​‌​‌‍1974 — REHEARING DENIED MAY 9, 1974 —

Telford, Stewart & Stephens, Charles W. Stephens, John E. Girardeau, for appellаnt.

Whelchel, Dunlap & Gignilliat, George L. Simpson, III, for appellees.

EBERHARDT, Presiding Judge.

While we agree that the result sought by appellant is a very desirable one and that it is compatible with general commercial practiсes extant in this country, yet we have been unable to square it with the law as heretofore decided and by which we are bound.

Prior to 1957 when the Manufacturer‘s Liability statute was adopted (Ga. L. 1957, p. 405), there could be no tort liability against the manufacturer of an item beyond the first purchaser or consumer. An exception appeared when sealed packages were sold first to a wholesaler and then to a retailer before it reached the consumer in the channels of trade, the courts having considered that the wholesaler or retailer was but a conduit from the manufacturer to the consumer.

. The same was true as to items which were, by their nature, inherently dangerous.
;
.

The Act of 1957 provided for an implied warranty of fitness from thе manufacturer to the purchaser and to members of the purchaser‘s household or his guests, who might reasonably be expected to use the gоods and who might suffer harm from an ordinary use of them. But that statute was expressly repealed by the adoption of the Uniform Commercial Code in 1962. Code Ann. § 109A-10-103.

Tort liаbility against the manufacturer of a defective item sold as new property, was provided irrespective ‍‌‌​‌‌‌‌‌‌​​​​‌‌‌‌​​​‌​​​​‌‌​‌‌‌​​‌​​​‌​​​‌​‌​‌​‌‍of privity, to any person who might use оr consume the property and be adversely affected by Ga. L. 1968, p. 1166 (Code Ann. § 105-106).

But the law as to liability under a warranty still requires privity.

We have recently held that liability does not go beyond the first user or purchaser where there is reliance upon an implied warranty and that another cannot recover thereon because of a lack of privity.

;
;
.

This was in keeping with prior holdings relative to implied warranties of fitness in

, and in
, 105 (7 SE 644), where it was asserted that “Such covenant or warranty would not pass with the machinery to the corporation or second purchaser, so as to shift the right of action to the new рarty. No principle is in sight which would either divest the first purchasers of their right of defense as against the purchase money, or invest the new party with any right whatever as against the manufacturers or first vendors.” Further, “In a sale of personal property the warranty is not negotiable or assignable, and does not run with the article sold.”
. Any cases from this court which may conflict with these Supreme Court cases must yield.

Here we deal with an express warranty, rather than an implied warranty, and it would appear that the privity requirement applies with even more force. See

. The implied warranty is raised by statute, while the express warranty is by contract.
. The express warranty is a representation or statement made by the seller at the time of the sale and as a part therеof, having reference ‍‌‌​‌‌‌‌‌‌​​​​‌‌‌‌​​​‌​​​​‌‌​‌‌‌​​‌​​​‌​​​‌​‌​‌​‌‍to the quality, character, or title to the goods, and of course is a part of the transaction between the sеller and the purchaser.

It has long been the law of this state that an action on a contract must be brought in the name of the party in whom the legal interest in the contract vests. Code Ann. § 3-108. Even a third-party beneficiary could not sue on it until this section was amended in 1949 to provide that “The beneficiary of а contract made between other parties for his benefit may maintain an action against the promisor on said contract.” Since the Suрreme Court has already held that a warranty of personalty does not run with the chattel and does not pass to the second or subsequent purсhasers, we can not see how plaintiff here can qualify as a third-party beneficiary. The mere fact that he would benefit by a performance of the warranty does not make him a third-party beneficiary.

. It must clearly appear from the contract that it was intended for the plaintiff‘s benefit, as, for example, in a trust or an insurance policy. Cf.
. A third-party beneficiary contract is one in which the promisor engages to the prоmisee to render some performance to a third person.
. It must appear that both parties to the contract intended that a third person should be the beneficiary.
.

It may well be time that some change in our law should come relative to manufacturers’ warranties. The Supreme Court, by whose decisions we are bound could declare a new policy, or the General Assembly could do so and thus make warranties of the kind here involved apply to any purchaser or user of the chattel within the designated warranty period. We do not have that power.

Since therе is clearly no privity here, the judgment is affirmed.

Judgment affirmed. Pannell, J., concurs. ‍‌‌​‌‌‌‌‌‌​​​​‌‌‌‌​​​‌​​​​‌‌​‌‌‌​​‌​​​‌​​​‌​‌​‌​‌‍Evans, J., concurs specially.

EVANS, Judge, concurring specially.

I concur in the majority opinion most reluctantly. “There ought to be a law” that would protect the ultimate consumer against the manufacturer of products where same are defective. But alack and alas! In the State of Georgia, unless there is privity between the parties (which in terms of the law means unless the ultimate consumer actually bought the products from the manufacturer) there is no liability under an express warranty or under an implied warranty. To make it very plain, if John Jones рurchases goods from a hardware store, and the goods are completely worthless, he cannot go back on the manufacturer, simply because he did not purchase directly from the manufacturer. If some middleman sells the product to the purchaser, as is almost always the cаse, then the purchaser may as well forget express warranty or implied warranty by the manufacturer, because of a lack of privity. Judge Pannell makes this quite clear in the case of

, but points out that warranty to a purchaser includes the members of his household or family and guests in his home. Code Ann. § 109A-2-318.

Code Ann. § 105-106, at first blush, apрears to give rise to a cause of action, but in Evershine Judge Pannell, at page 37, shows that such a suit is not based on negligence of the manufacturer, but because the manufactured product is not merchantable, and that as this would be a suit under an implied warranty, it is barred.

In

, Judge Bell comments on the faсt that the ultimate buyer cannot sue the manufacturer directly on implied warranty, unless the purchase was made directly by the purchaser from the manufacturer.

Thus, the party who finally comes into possession of inferior products, unless ‍‌‌​‌‌‌‌‌‌​​​​‌‌‌‌​​​‌​​​​‌‌​‌‌‌​​‌​​​‌​​​‌​‌​‌​‌‍he purchased directly from the manufacturer, is without a remedy.