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D'ENGLERE v. LANDER MOTORS, INC.
35278.
Complaint. Before Judge Vaughn. DeKalb Superior Court. April 29, 1954.
GARDNER, P. J.
1, 2. The general and special demurrers are without merit, and the court did not err in overruling them.
3. The special grounds of the motion for a new trial allege no reason for reversal on either, or all of them.
4. The general grounds are without merit.
Paragraph 3 alleges: "On June 22, 1951, defendant sold a 1948 Dodge 1/2 panel truck motor No. T142-40100, to plaintiff for five hundred forty ($540.00) dollars, and defendant expressly warranted that there were no liens or encumbrances against said truck, and that title to said truck was clear in defendant's name: a copy of said bill of sale is included as a part of this petition. being marked 'Exhibit A' and attached hereto."
Exhibit "A" is a bill of sale, which reads: "For value received ($540.50) receipt of which is hereby acknowledged, I sell, convey and assign to Lander Motors, Inc., a corporation, the following described automobile: Name of Car, 1948 Dodge 1/2 panel. Motor No. T142-40100. Serial No. --------, License No. A/P 60756. I guarantee that there are no liens or other encumbrances against said automobile and that title to same is clear in my name. Signed: Sanford M. D'Englere."
Paragraph 4 alleges: "Although unknown to plaintiff on the above date of sale, the title to said truck was not clear. On said date, the title to said truck was encumbered by a bill of sale to secure a debt of fifteen hundred and twenty-four ($1,524.00) dollars, held by the Bank of Albany, of Albany, Georgia, duly recorded in Contract Record Book 86, page 539, in the courthouse of Dougherty County, Georgia."
Paragraph 5 alleges: "At the time defendant sold the aforementioned truck to plaintiff, the title to said truck was also encumbered by a bill of sale to secure a debt of two thousand seven hundred ($2,700.00) dollars, held by the Bank of Albany, of Albany, Georgia, and recorded in Contract Record Book, 98, page 365, in the courthouse of Dougherty County, Georgia."
Paragraph 6 alleges: "Plaintiff made repairs to said truck which consisted of straightening the body metal, repainting and refinishing the outside and inside of said truck, at a cost to plaintiff of one hundred thirty-one dollars and twenty cents ($131.20)."
Paragraph 7 alleges: "On the 24th day of March, 1952, in case No. 6035, Dougherty County Superior Court, the style of said case being Bank of Albany v. Estate of Louis D'Englere, it was adjudged and ordered that the fi. fa. No. 2034 proceed against said truck and levy be made; that the claimant, Lander Motors, Inc., be assessed one hundred eighty-five ($185.00) dollars damages and eighteen dollars and fifty cents ($18.50) costs. Levy and assessment were thereby made."
Paragraph 8 alleges: "Plaintiff by virtue of the above mentioned action was deprived of said truck, and suffered a loss thereby of the purchase price of said truck in the amount of five hundred forty ($540.00) dollars."
Paragraph 9 alleges: "As a result of the title to said truck not being clear, plaintiff was deprived of the value of repairs to said truck in the amount of one hundred thirty-one dollars and twenty cents ($131.20)."
Paragraph 10 alleges: "In defending its interest in said truck, plaintiff suffered damages in the amount of one hundred eighty-five dollars and fifty cents ($185.50), and eighteen dollars and fifty cents ($18.50) costs and incurred attorneys' fees amounting to one hundred fifty ($150.00) dollars."
Paragraph 11 alleges: "All of the aforesaid losses, damages and costs to the plaintiff were caused by the breach of defendant's warranty as to the clear title of said vehicle."
Paragraph 12 alleges: "The defendant, upon demand, refuses to indemnify plaintiff for the above losses, damages and costs."
The defendant filed an answer subject to his general and special demurrers in which he admitted paragraph 1 and denied paragraph 2, and further alleged:
"3. Defendant admits that on June 22, 1951, he sold Lander Motors, Incorporated, a 1948 Dodge one-half ton panel truck, motor No. 40100 for $540.50, and signed a paper selling it to Lander Motors, the remainder of the paragraph for want of sufficient information can neither be admitted nor denied.
"4. Defendant denies paragraph four (4) of plaintiff's petition as pled, and states that he advised Lander Motors, Incorporated, of the loan he had on said auto with the Citizens & Southern National Bank of Atlanta, and that he was using a portion of the proceeds of the sale of the car to pay the loan off, and that the said Lander Motors, Incorporated, consummated the purchase of said car with such knowledge, as to the remainder of the said paragraph defendant, for want of sufficient information can neither admit nor deny same.
"5. In answer to paragraph five (5) of plaintiff's petition and the allegations contained therein, this defendant admits he sold a 1948 Dodge one-half ton panel truck to Lander Motors, Incorporated, which he owned and operated for approximately nine months, and he told this company that he still owed a balance to the Citizens & Southern National Bank of Atlanta, and that said company was then advised, and knew that he was using part of the proceeds of said sale to pay off said encumbrance to said bank, and that plaintiff consented and acquiesced thereto; the remainder of said paragraph is denied.
"6. In answer to plaintiff's paragraph six (6) defendant, for want of sufficient information can neither admit nor deny the allegations thereof, but denies that he either authorized, or consented to, or in any way approved the expenditure of the sum of money alleged to have been spent by the plaintiff, and that if it was so expended was not for or on behalf of this defendant.
"7. In answer to the allegations of paragraph seven (7) of plaintiff's petition, defendant for want of sufficient information can neither admit nor deny the allegations thereof, and says that if such did occur, that it was because of, proximately and solely because of the failure of the plaintiff to appear and defend its interest in such proceeding, or to permit this defendant to do so.
"8. In answer to the allegations of paragraph eight (8) of plaintiff's petition, defendant for want of sufficient information can neither admit nor deny the allegations thereof, and says that if plaintiff suffered any loss that it was caused proximately and solely by plaintiff's own fault and negligence and in no wise because of the defendant herein.
"9. In answer to the allegations of paragraph nine (9) of plaintiff's petition, defendant for want of sufficient information can neither admit nor deny the allegations thereof, and says further that if the plaintiff suffered any loss that it was caused proximately and solely by plaintiff's own fault and negligence, and in no wise because of the defendant herein, and that at no time did the defendant authorize, consent or approve said repairs and the expenditure of such sum, if it as so expended, was not for and on behalf of this defendant.
"10. In answer to the allegations of paragraph ten (10) of plaintiff's petition, defendant denies that plaintiff defended its interest in said vehicle, but on the contrary, that the plaintiff did not do so, and because of its failure to defend said interest incurred such damages or liability, but that such damage was proximately and solely caused by the plaintiff's failure to defend its interest.
"11. The allegations of plaintiff's paragraph eleven (11) are denied, and defendant says that if plaintiff has suffered any damages that they were caused solely and proximately by and through plaintiff's own negligence and fault."
Paragraph 12 is denied.
In paragraph 1 the defendant demurred generally to the petition as a whole on the ground that the petition did not set forth a cause of action.
Special demurrers: Subsequent paragraphs of the special demurrers read: "2. Defendant demurs specially to paragraph 4, and more particularly to the words 'although unknown to plaintiff on the above date of sale, the title to said truck was not clear' on the grounds:
"(a) Said words are a conclusion of the pleader with no facts alleged to support said conclusion, for the reason it is not shown why the title to said truck was not clear.
"(b) Said paragraph and words are contradictory and ambiguous, when compared with the allegation in said paragraph that a bill of sale to secure debt was on record on the date of the sale, it being presumed that plaintiff had constructive notice.
"3. Defendant demurs specially to paragraph 4 on the ground that a copy of the bill of sale referred to in said paragraph is not attached to the petition, nor are its contents set forth in said petition, and same is material to the issue, and should be set forth, to enable the defendant to adequately defend.
"4. Defendant demurs specially to paragraph 4 on the ground that the allegations of said paragraph are immaterial to the issue and show no loss or damages to the plaintiff.
"5. Defendant demurs specially to paragraph 5 on the ground that a copy of the bill of sale to secure debt referred to in said paragraph is not attached to the petition, nor are its contents set forth, nor is it shown when said bill of sale was executed nor is it shown who made said encumbrance, and same is material to the issue, and should be set forth, to enable the defendant to know what he has to defend against.
"6. Defendant demurs specially to paragraph 5 on the ground that the allegations of said paragraph are immaterial to the issue, and show no loss or damage to the plaintiff.
"7. Defendant demurs specially to paragraph 6 on the ground that the allegations of said paragraph are immaterial to the issue, for the reason it is not alleged or shown that repairs to the truck were contemplated in the contract between the parties, nor why the defendant should be charged with the repairs to said truck.
"8. Defendant further demurs specially to paragraph 6 on the ground that no itemized list of repairs, labor and material are set forth.
"9. Defendant demurs specially to paragraph 7 on the ground that said paragraph is immaterial to the issue, because it does not show any liability on the part of the defendant for the matters stated in said paragraph.
"10. Defendant further demurs specially to paragraph 7, on the ground that a copy of the pleadings and proceedings referred to as case No. 6035, Dougherty County Superior Court is not attached to the petition as an exhibit, and said copy is necessary to enable the defendant to defend, for the reason that said paragraph is vague and indefinite, concerns parties other than those in this suit, and shows no liability on the part of this defendant for the transactions set forth in said paragraph; said paragraph is also demurred to on the ground that it is not shown what duty this defendant owed in regard to said proceedings, and on the further ground it is not shown how the warranties of the defendant were involved in this suit mentioned in said paragraph, nor what opportunities were given to the defendant to defend his warranties.
"11. Defendant demurs further to the words, 'that the claimant, Lander Motors, Incorporated, be assessed one hundred eighty-five ($185.00) dollars damages and eighteen dollars and fifty cents ($18.50) costs' in paragraph 7 on the grounds: (a) Said language does not show any 'liability' on the part of the defendant for said assessment. (b) Said assessment is illegal and contrary to law. (c) It does not show why and how said assessment was made against the plaintiff.
"12. Defendant demurs to paragraph 8 on the grounds that said paragraph is vague, indefinite, and ambiguous, and a conclusion of the pleader, in that it does not show a legal loss of the plaintiff, nor does it show how said loss was incurred.
"13. Defendant demurs to paragraph 9, on the grounds that the value of the repairs as damages is too remote, speculative, and conjectural, for the reason that it is not shown that there were any warranties as to repair or condition, nor what those warranties were, nor if those warranties were violated or breached, nor is it shown that said repairs were in reasonable contemplation of the parties, and defendant demurs further to said paragraph on the ground that said paragraph is vague and indefinite and a conclusion in that it does not itemize said repairs, and said paragraph is further objected to on the ground that any repairs made, were made at the plaintiff's own risk, it having constructive notice of said liens.
"14. Defendant demurs to the words, 'In defending its interest in said truck, plaintiff suffered damages in the amount of one hundred eighty-five dollars and fifty cents ($185.50) and eighteen dollars and fifty cents ($18.50) costs' in paragraph 10 on the grounds: (a) That said words are vague and indefinite and a conclusion of the pleader for the reason it is not shown how said damages were incurred, for what reason, or that any loss was incurred at all. (b) Because it is not shown what liability if any the defendant has by reason of said damages. (c) Because it is not shown what duty the defendant owed to the plaintiff, to avoid said damages, or what opportunity the defendant was given to defend his warranties. (d) Because said damages are too remote, speculative, and conjectural and beyond the contemplation of the parties.
"15. Defendant demurs to the words, 'and incurred attorneys' fees amounting to one hundred fifty ($150.00) dollars,' in paragraph 10 on the ground that said words are too vague and indefinite, remote and conjectural, in that they do not show to whom said attorneys' fees were paid, the date of payment or indebtedness, the type and amount of services rendered, or whether said services were a necessary incident to defend the plaintiff's interest in said truck, nor is it shown how said attorney's fees were a necessary and normal expense incident to the defense of plaintiff's interest."
The court overruled the demurrers to the petition on all the grounds. The case went to trial and resulted in a verdict for the plaintiff. The defendant filed a motion for a new trial on the general grounds and thereafter added a number of special grounds, which motion the court denied. On this judgment the defendant assigns error.
The evidence introduced upon the trial is substantially as follows: Randall Smith testified for the plaintiff that he was secretary and treasurer of Lander Motors, Inc.; that, after the levy was made upon the truck, on several occasions he talked to Mr. D'Englere, who said that he was innocent of the matter, and that it was his opinion that, if the bank had those liens, he had no knowledge of them; that Sanford took possession of the truck from his father in good faith, and sold the truck, and that they were to pay him and the Citizens & Southern National Bank for a sum of money that he had borrowed from the bank that he said he felt that the claim of the Bank of Albany was not valid, and that a legal representative could establish that fact by filing a claim in the Superior Court of Dougherty County, which was done at Mr. D'Englere's request and insistence; that the levy of the truck was made by the Bank of Albany; that Lander Motors, Inc., paid some amount as damages on the suit in Albany; that the plaintiff made arrangements that they were to pay Fisher & Phillips, attorneys in Albany, $150 as attorney's fees for the defense of the title to the truck in Albany. On cross-examination, the witness stated that, on the date of the trial when this case came up in Albany, his attorneys were not there and neither was he.
Earl Phillips testifying for the plaintiff, testified that he was a lawyer for the plaintiff, and that he had been requested by Mr. Smith to contact Mr. D'Englere in regard to this truck; that he called Mr. D'Englere, who came by his office about a day or so after levy upon the truck by the Fulton County Sheriff in connection with a foreclosure proceeding that was pending in Albany, Georgia, that the defendant admitted he had sold his truck to Lander Motors, Inc., and when he asked the defendant what he could tell him about the foreclosure in Albany, the defendant stated that he just did not know anything about it, and he felt sure he had good title to the truck. The witness stated that he told the defendant that there had been a breach of warranty, and he wanted him to pay off, and the defendant insisted there were no valid liens against the truck and he would not pay; that subsequently the witness was in conversation with the defendant and Charlie Franco, the defendant's attorney, at which time the defendant continued to insist there was no lien against the truck, and that he had title to it. The witness stated that he repeated his position about the matter; that he advised Mr. Franco and the defendant that he had filed a claim in the Superior Court of Dougherty County, but that it would be Mr. D'Englere's responsibility to put up any defense he had in opposition to the foreclosure pending in that court; that he stated to Mr. D'Englere that he had filed the claim, but that Mr. D'Englere would have to be responsible for getting what evidence he had and appearing and defending it, and he said, that he would do that. The witness stated that he filed a claim in the Superior Court of Dougherty County, and that he also wrote to Mr. Watson, an attorney in Albany, and asked that he make a check of the records of the Superior Court of Dougherty County to determine whether in fact there were any liens of record pending against this particular truck; that in January 1952 it was the witness's belief there was no valid defense which could be interposed in the Superior Court of Dougherty County in connection with the foreclosure; that he notified Mr. D'Englere that the foreclosure could not be defended and demanded payment; that he told Mr. D'Englere and Mr. Franco that, if anything else was done, Mr. D'Englere would have to do it; that he had filed a claim bond because he had agreed to do that; that it was the defendant's responsibility to defend the action; that Mr. D'Englere answered by continuing to insist that it was not right and not so; that there was no lien against the truck, and Mr. Franco said that he would confer with his client and they would decide what to do; that, in order to defend the title to this truck, it was necessary for the witness to do some research to determine how Lander Motors could get into this action when it wasn't a party, and that he spent a day researching the law in regard to this case; that he had several conferences and prepared the claim bonds; that it was necessary to associate counsel in Albany, and $150 was a reasonable fee.
On cross-examination, the witness testified that he knew that, if there was a properly registered lien, the lien followed the automobile and under ordinary circumstances, if his client had bought an automobile upon which there was a valid lien prior to the purchase, his advice to his client would be to go against the person from whom the vehicle had been purchased; that, if he knew there was a valid lien, he would not file a claim affidavit, and he would either tell his client to pay the amount or surrender the automobile. In this case if his client had surrendered the automobile or had been willing to pay the amount of the lien upon receiving notice there was a valid lien, it would have cost him $540 plus repairs plus attorney's fees of probably $50; that the effect of filing the counter-affidavit was to deny that there was a valid lien. When questioned whether or not he had made investigation prior to making the affidavit to see whether there was a valid lien, the witness stated that his investigation at that time consisted of a conference with Mr. D'Englere, in which he protested there was nothing to the matter, and that it was all a false claim, and that he was being persecuted. The witness stated that he was influenced by the fact that Mr. D'Englere had just gone into business, and that he was fearful at that time that if he did not try to let him work out his problems, his client would not get any money at all; that it would be common practice in Fulton or DeKalb County if he lived here or had a claim to verify by checking the records thoroughly for the validity of the claim, but it was not his practice to chase three or four hundred miles to investigate a $500 matter; that his client filed the affidavit which said that this truck was his property and as far as they were concerned it was their property; that, at the time the affidavit was filed, he and his client Lander Motors had knowledge about a levy against it; that he knew that his client was engaged in litigation in Dougherty County, and had made an issue by his affidavit, and that it was a party to that litigation, but that it was not his duty to represent it as a party in that litigation because it was his opinion, prior to that time that this matter came on for hearing, that Mr. D'Englere had been mistaken as to the facts, and that two valid liens appeared against the property; that he filed a claim, and if Mr. D'Englere wanted to do the work and defend the case, he would not feel any obligation to make a trip to Albany
and incur further expenses to his client; that Mr. D'Englere was not a party to that case, and his client was the only party and the only defendant; that he did not notify Mr. Franco or Mr. D'Englere of the date of the hearing of the trial in Dougherty County because he had washed his hands of it and told them that it would be their responsibility; that he did not dismiss the claim, because the jury still had a right to assess damages; the damages he was referring to was filing the affidavit for the purpose of delay; that the damages would not have been assessed if the affidavit had not been filed; that his client could have made an appearance at the trial, but that neither he nor his attorney showed up; that he could have appeared and explained to the jury the circumstances under which he filed the affidavit. Q. That "appearance was solely upon you [the witness] and your client?" A. "That's right."
Evans Hall testified for the plaintiff that in June 1951 he was a used-car sales manager, and he did not see the truck before it was repaired, but that he recalled seeing the truck many times, and that it stayed on the lot a long time; that he saw the truck and knew that it had been painted; that he was present at the public auction in front of the Fulton County courthouse conducted by the sheriff; that the truck was bid in for $1,000.
Sanford M. D'Englere, testifying for himself, stated that he bought this truck from his father; that he paid $940 for it; that at the time he bought the truck he did not have any knowledge of any outstanding liens, and he sold it to Lander Motors, Inc., and at the time did not have any knowledge that there were any outstanding liens; that the first notice he had about the trouble was that Mr. Bob Lipshultz contacted him, and he told Mr. Lipshultz he had sold the truck to Lander Motors, Inc.; that on the request of Mr. Smith he brought the bill of sale and the canceled checks to Mr. Smith's house to show him that he had paid for the truck; that his father passed away on the last day of May; that he had talked to Mr. Phillips, and had never agreed to defend the action himself in Dougherty County; that Mr. Phillips said that they were going down there and he agreed to co-operate with them in any way he saw fit. On cross-examination, he testified that he had received $540, of which he had used $400 to pay off a loan with the Citizens & Southern National Bank on the said truck.
The plaintiff introduced a repair bill prepared by an auditor who used the accounting system of the plaintiff, which bill totaled $131.20. These repairs included straightening metal, refinishing the body by painting same, and refinishing the interior of the truck. There was also introduced during the course of the trial considerable documentary evidence concerning the trial in Dougherty County and the transaction in Fulton County. We will not set this out, but will discuss it as we deem necessary in the opinion.
1. Regarding the general demurrer: The plaintiff alleges a cause of action against the defendant because of damage allegedly suffered by the plaintiff through a defective title to a 1948 Dodge truck, which the defendant warranted to be clear and in himself. We have no difficulty in reaching the conclusion that the court did not err in overruling the general demurrer.
2. Since we have quoted the petition and the demurrers, we will not reiterate their allegations here.
Special demurrers: Paragraphs 2, 3, 4, 5, and 6, regarding the bill of sale, are without merit. Paragraphs 7, 8, 12, and 13, regarding repairs and improvements to the truck, are without merit. Paragraphs 9, 10, 11, and 14, regarding the fi. fa. and costs in the Superior Court of Dougherty County, are without merit. Paragraph 15 regarding counsel fees is not meritorious. We will not discuss these special demurrers in detail as to each of them, but will group them as above intimated and discuss each group generally.
(a) It was not necessary for the plaintiff to allege anything further regarding the bills of sale, since that was evidentiary matter and needed no further allegation concerning same.
(b) Regarding the allegations as to repairs and improvements to the truck, such elements of damage have never been passed upon in this State by our appellate courts under a breach of warranty by the seller. However, Riggs Motor Co. v. Archer, 240 S. W. 2d 75, a Kentucky case, held that repairs and improvements on a stolen automobile were a loss to an innocent purchaser directly and naturally resulting in the course of evidence and recoverable items of damage. Items somewhat analagous to some of those in this case will be found in Watkins v. Muse, 78 Ga. App. 17 (50 S. E. 2d 90). It must be kept in mind that the plaintiff purchased this truck from the defendant for the purpose of resale under a warranty that the title was in the defendant and was free of all liens. The burden was not on the purchaser, the plaintiff in this case, to search the records throughout the State of Georgia to determine whether or not the purchased vehicle was encumbered with liens prior to the purchase. State Mutual Ins. Co. v. McJenkins Ins. &c. Co., 86 Ga. App. 442, 444 (71 S. E. 2d 670) is cited by counsel for the defendant. That case deals with a suit for breach of warranty regarding title to land and is inapplicable to the present case, which deals with warranty as related to personalty. In this connection, see Smith v. Williams, 117 Ga. 782 (45 S. E. 394, 97 Am. St. R. 220), and also Cook v. Pollard, 50 Ga. App. 752 (179 S. E. 264).
(c) As to costs in Dougherty County and counsel fees, and in conclusion as to all these special demurrers not herein specifically mentioned, in view of the whole record it must be kept in mind that all those items were incurred in an effort on the part of the plaintiff to protect his warranty given him by the defendant, and such were proper items of damage.
3. Special ground 1 of the motion for new trial assigns error because, as contended, the verdict of $949 is excessive. Counsel attacks these items of recovery set out in the petition on demurrer, which the court overruled and which ruling we have sustained. As to the allegations, the proof substantiated the recovery except that the plaintiff lacked approximately $75 recovering the amount for which suit was brought. We have considered the reason the jury did not return a verdict for the full amount, and have reached the conclusion that, since the defendant and the plaintiff collaborated on the proposition of filing a claim in Dougherty County where the truck in question was under levy--the evidence authorized the jury to find that the defendant required the plaintiff to send its attorneys to Dougherty County to contest the claim, and that, after examining the prior bills of sale of record in Dougherty County, against the vehicle in question, the attorneys for neither the defendant nor the plaintiff appeared; and that, as to the expense of $150, which the plaintiff alleges as an item of damage against the defendant in the proceedings, perhaps the jury decided that this item was too much and therefore reduced the amount of the verdict to $949. Under this whole record, the verdict of the jury is not excessive.
Special ground 2 complains that the item of repairs as set out in the petition was not properly proven. We disagree with that contention. The evidence shows that the repair bill was submitted by the auditors of the plaintiff as true and correct, and the defendant made no attack as to this item. This ground is without merit.
Special grounds 3, 4, 5, 6, and 7 are in regard to the receipt of the Sheriff of Dougherty County for the truck in question. A property exemplification of the record of the proceeding in Dougherty County appears in the documentary evidence. These grounds are without merit.
Special grounds 8, 9, 10, and 11 complain of certain excerpts from the charge of the court. When we consider the full charge in view of the petition and the answer and the complete evidence in this case, we find that these special grounds are without merit.
4. Regarding the general grounds, the jury were authorized under the evidence to return the verdict rendered. These grounds are without merit.
The court did not err in denying the motion for new trial for any of the reasons assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
T. Charles Allen, Fisher & Phillips, contra.
Saul Blau, Charlie Franco, for plaintiff in error.
DECIDED OCTOBER 1, 1954 -- REHEARING DENIED OCTOBER 25, 1954.
Saturday May 23 03:30 EDT


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