Payne v. Chal-Max Motor Co. , 25 Ga. App. 677 ( 1920 )

Bloodworth, J.

1. Mrs. Lois Payne bought an automobile, signed a contract of purchase, and gave a series of notes. On default of the payment of a portion of the notes an attachment for the balance of the purchase-price was issued and levied, and a declaration was filed. Pleas ^tting up that the automobile was defective and not suited to the purpose intended were amended so as to show that the defendant elected “to rely on the statements in her answer of implied warranty” only. The contract contained the following: “The vendor does not warrant said property except that the title to same is in the vendor and free from incumbrance.” This is a definite and complete contract between the parties, and amounts to an express refusal to make any warranty except as to the title to the property and that it was not incumbered, and this refusal to warrant is so broad that it extended to and covered any implied warranty, and no defect in the automobile for which the notes were given could be pleaded by way of defense. The court properly sustained the motion to strike the plea. Harrell v. Holman, 21 Ga. App. 159 (93 S. E. 1021), and cases cited. See, in this connection, Mansor v. Zemurray, 22 Ga. App. 441 (96 S. E. 233).

2. The defendant having appeared and made defense, the court properly overruled the motion to dismiss the declaration in attachment. “It is well settled that in a suit by attachment for purchase-money, where the defendant has voluntarily appeared and pleaded to the merits of the case, the plaintiff is entitled to proceed for a verdict and general judgment, even though the attachment be subject to dismissal.” Flagg v. Hitchcock, 143 Ga. 380 (3) (85 S. E. 125). See also Civil Code 1910), § 5121; McDonald v. Rimes, 137 Ga. 732 (1) (74 S. E. 266).

Judgment affirmed.

Broyles, C, J., and Luke, J. concur.