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CONSUMERS FINANCING CORPORATION v. LAMB, Administratrix.
21335.
Equitable petition. Emanuel Superior Court. Before Judge Humphrey.
QUILLIAN, Justice.
1. Where the plaintiff might not obtain complete relief without joining all the parties involved in a transaction, resort may be had to equity in order to prevent a multiplicity of actions.
2. Where, under the averments of the petition, the defendant had knowledge of the agreement and by its acts was a party to such agreement, it owed the plaintiff the duty to procure credit life insurance.
3. Acceptance of the benefits and part performance of the contract by the plaintiff would preclude the defendant from attacking the alleged oral portion of a contract which appeared to be an explanation of the entire contract rather than conflicting with the written portion.
Ida T. Lamb, temporary administratrix of the estate of Walter M. Lamb, deceased, filed a petition in the Superior Court of Emanuel County, seeking injunctive relief and damages for violation of a contract to procure credit life insurance against Consumers Financing Corporation (hereinafter referred to as Consumers), Franklin-Overstreet & Company (hereinafter referred to as Franklin), and J. L. Lewis, Jr., Sheriff of Emanuel County. The petition as amended alleged: that Franklin as the regular Ford dealer for Emanuel County handled the financing of automobiles sold by it under a reserve and retail protection agreement with Consumers; that Franklin had a continuing interest in each transaction, contract and automobile handled with Consumers; that it was the established custom and agreed procedure for Franklin to prepare notes and conditional-sale contracts upon forms provided by Consumers, and such contracts, initially made payable at Consumers, were immediately transferred and assigned by Franklin to Consumers and forwarded to it for further handling; that it was part of the regular procedure for Franklin to arrange for various types of insurance, including credit life insurance, the premiums of which were included in the various finance charges; that such insurance would be actually procured by Consumers, and in such transaction both defendants were agreed agents of the purchaser-obligor to procure and obtain such insurance.
The further averments of the petition were: that the deceased, Walter M. Lamb, purchased a 1960 Ford automobile from Franklin with credit life insurance included in the transaction and under the above described procedure; that said automobile was damaged in a collision, and deceased agreed with the president of Franklin to trade this automobile in on a new car upon certain necessary conditions, which were oral covenants entered into by the parties supplementing the written note and conditional-sale contract, one of which was that the same credit life insurance coverage as was had on deceased's existing automobile would be procured by Franklin and Consumers acting as agents in his behalf; that there was a regular form, described as a "Purchaser's Statement," prepared and signed by deceased and the president of Franklin on forms furnished by Consumers which contained an authorization by the deceased for Franklin and/or Consumers to purchase and place fire and theft insurance for their mutual protection and such other insurance as might be required to cover their respective interest and to execute applications for such insurance if and when required; that deceased insisted upon such coverage being obtained; that deceased executed and delivered the note and conditional-sale contract in the sum of $3,513.87, of which amount $77.49 provided for the credit life premium; that the note and contract were transferred to Consumers in the usual manner and procedure, and that deceased continued to make regular payments to Consumers for some four months until his death on December 26, 1960.
The petition alleged: that Consumers accepted the credit life insurance premium and retained the same without notification to the deceased of any failure to obtain insurance; that the deceased would never have purchased the new automobile except for the assurance that credit life insurance would be obtained, this promise having induced him to purchase the automobile; that no notification was given to the deceased that the insurance was not legally in force, nor was there any return of premium; that, following the death of Walter M. Lamb, the plaintiff was informed by the president of Franklin that credit life insurance had not been obtained and that Consumers had informed him, but he had failed to advise the deceased of this fact; that Consumers, with the advice and consent of Franklin, had sued out a personalty foreclosure proceeding which had resulted in a fi. fa. being levied upon the automobile; that, under the contract to procure the insurance, the defendants owed deceased the duty to obtain such insurance or to notify him of their failure to do so; that plaintiff's right to file a counter-affidavit in the foreclosure proceedings would not be a complete and adequate remedy, for Franklin is not a party and can not be made a party and, therefore, equity is sought in order that complete justice be done; that the violation of the agreement by the defendants has resulted in damages of $3,136.38, the alleged balance due upon the note and conditional-sale contract.
The plaintiff prayed for a temporary injunction to restrain the sale of the automobile and continuance of the foreclosure proceedings, and that damages be recovered in the sum of $3,136.38.
Consumers demurred to the original petition, contending that it did not state a cause of action; that the petition alleged matters so disjunctively that it could not be ascertained upon what the pleader intended to rely. The petition was specially demurred to in that the allegations pertaining to the supposed oral agreements made by the deceased and the president of Franklin sought to add to and vary the terms of the written contract by prior oral agreements; and the petition was specially demurred to on the grounds that there was a misjoinder of causes of action, and that there was duplicity since the plaintiff sought both injunction and damages.
The trial court overruled all the grounds except those of duplicity, allowing the plaintiff to amend. The defendant Consumers renewed all grounds of its demurrer, and the trial court entered an order overruling each and every ground of the renewed demurrers to the amended petition. To this judgment Consumers excepted, saying that the trial judge erred and that all of the rulings complained of were contrary to law. Consumers brings to this court its bill of exceptions in order that the alleged errors may be considered.
1. Plaintiff in error, defendant below, argues strenuously that the plaintiff had an adequate remedy at law without invoking the aid of equity and seeking injunctive relief. It is well settled, however, that equity will assume jurisdiction where one's remedy at law is not as complete or would be more difficult (Goolsby v. Board of Drainage Commissioners, 156 Ga. 213, 214 (6), 119 SE 644; and City of Macon v. Ries, 179 Ga. 320, 327, 176 SE 21); and that the remedy at law must be as effective and efficient to the ends of justice as the equitable remedy. Atlantic Coast Line R. Co. v. Gunn, 185 Ga. 108, 111 (194 SE 365). Equity will intervene, and injunction is proper, to prevent a multiplicity of actions. Blaisdell v. Bohr, 68 Ga. 56; Harris v. Rowe, 200 Ga. 265, 272 (4) (36 SE2d 787); City of Atlanta v. Aycock, 205 Ga. 441 (53 SE2d 744).
Here the allegations of the petition show that there was a nexus between the parties in that they were all concerned and involved with a single transaction. Brumby v. Board of Lights & Waterworks, 147 Ga. 592, 597 (95 SE 7); Abernathy v. Rylee, 209 Ga. 317, 321 (72 SE2d 300). Further, plaintiff might not obtain complete relief in one action without joining all the parties to the transaction. Hence, this is a case where resort may be had to equity. McLaren v. Steapp, 1 Ga. 376; East Atlanta Land Co. v. Mower, 138 Ga. 380 (75 SE 418); First National Bank of Sparta v. Wiley, 150 Ga. 759 (105. SE 308).
2. The defendant's contention that it was a holder in due course is not relevant to this action. The defendant had knowledge of the agreement to procure the insurance, and, by its acts, was a party to such agreement. The defendant, under the allegations of the petition, owed the plaintiff the duty to procure credit life insurance. Home Building & Loan Assn. v. Hester, 213 Ga. 393 (99 SE2d 87); Atlas Auto Finance Co. v. Atkins, 79 Ga. App. 91 (53 SE2d 171); Bell v. Fitz, 84 Ga. App. 220 (66 SE2d 108); Farmers & Merchants Bank v. Winfrey, 89 Ga. App. 122 (78 SE2d 818).
Further, the plaintiff clearly was seeking recovery against Consumers and Franklin as his agents to procure the policy. It would place an unwarranted construction on the obvious and unambiguous language of the petition to say that it was alleged that Consumers was an agent of Prudential Life Insurance Company.
3. The alleged acts of Consumers regarding its normal business practice and, in particular, this transaction, and their acceptance of the benefits in the form of the note, conditionalsale contract, payments on the note and the insurance premium, indicate a ratification of the agreement made by the president of Franklin (Code 4-302 and 4-303), and show such part performance on the part of the deceased as to estop Consumers from attacking the agreement as oral and in conflict with any written provisions. Finney v. Cadwallader, 55 Ga. 75; McLeod v. Hendry, 126 Ga. 167 (54 SE 949). In this case there appears to be no conflict present, bhut rather an explanation of any ambiguity and a showing as to what constituted the entire contract. Code 38-502, 38-504.
Judgment affirmed. All the Justices concur.
Spivey & Carlton, contra.
Homer S. Durden, Jr., Myrick, Myrick & Richardson, for plaintiff in error.
ARGUED SEPTEMBER 11, 1961 -- DECIDED OCTOBER 11, 1961 -- REHEARING DENIED OCTOBER 24, 1961.
Friday May 22 23:24 EDT


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