Findley v. Downing Motors Inc. , 79 Ga. App. 682 ( 1949 )

The term, "Sold ``as is,'" when contained in a contract for the sale of personalty, means that the buyer takes the article in its then present state or condition without any implied warranty as to soundness of condition or suitability for the use or purposes intended.

(a) A petition setting out that the plaintiff purchased an automobile from the defendant upon certain prior oral representations as to its condition, and showing that the plaintiff accepted a written bill of sale describing the automobile and containing the words "Sold ``as is,'" and showing a material failure of the car to be as represented, did not state a cause of action based on a breach of warranty.

DECIDED JULY 15, 1949. J. P. Findley sued Downing Motors Incorporated, for damages. The allegations of the petition were substantially as follows: that the defendant is engaged in the used automobile business; that the plaintiff came to the defendant's place of business to look at automobiles for the purpose of purchasing one; that the defendant's agent, Tom Downing, showed the plaintiff a 1941 model Oldsmobile automobile and stated a price for the car, which the plaintiff considered too high; that the defendant then stated that the engine of the automobile was reconditioned and in new condition, having new rings, inserts, and bearings; and that the automobile had a new transmission, and was in the very best condition; that the plaintiff purchased the automobile in reliance on said statement of warranty; that, in less than two weeks, and before the automobile had been driven seven hundred miles, the engine and transmission developed serious trouble, as set out in detail in the petition and exhibits attached thereto; that as a result the plaintiff was damaged in the amount sued for, said amount being the fair market value of the repairs necessary to place the automobile in the condition set out in said warranties; that said damage was occasioned because the condition of said automobile was not as represented by the defendant; that upon the closing of the sale the defendant's agent handed to the petitioner a paper, a copy of which was attached to the petition as Exhibit "D," and made a part thereof by reference. It appears that said Exhibit "D" is a bill of sale bearing the name, "Downing Motors, Inc.," and it recites the receipt of $1195 and the transfer of a described 1941 Oldsmobile automobile to the plaintiff. Immediately following the license number written on the bill of sale appear the words, "Sold ``as is.'" The paper also contains the usual statements of warranty of title in the seller. The defendant filed a general demurrer to the petition, which was sustained by the trial judge, and the exception here is to that ruling. The petition here attempts to make a cause of action based solely on an alleged breach of warranty, and the cause set out is not predicated on the reliance by the plaintiff upon false and fraudulent representations, made to deceive, and to induce the execution of the contract, and acted on by the plaintiff. Under this state of the record, then, the only questions for determination in this case are: In the sale of personalty, are all representations or warranties, made before the consummation of the contract, binding on the seller after the contract of sale is reduced to writing, and the only statement contained in such writing relating to such warranties is the statement, "Sold ``as is'"? Or, to restate the question in a different form: Where the seller and buyer of personalty orally strike a bargain after the seller has made certain affirmative and oral representations, is the effect of the representations as a part of the contract of sale obliterated by the seller handing to the buyer a paper entitled "Bill of Sale" in which are the words, "Sold ``as is'"? Are such words an express limitation as to warranties?

We first come to consider the meaning of the term "Sold ``as is.'" So far as we have been able to determine, the term has not been defined in Georgia, but the courts of other States have inquired into its meaning in similar cases. The Court of Appeals of Louisiana, in considering the question in Roby Motors Co. v. Cade (La.App.) 158 So. 840, quoted approvingly from Berry in his work on Automobiles, vol. 2, p. 1412, in part as follows: "Its use implies that the buyer takes a chance in making the purchase. It seems to imply the thought that the buyer is taking delivery of goods in some way defective, and upon the express condition that he must trust to his own examination. The very words, ``as is,' taking this contract as a whole would cause a person to know that the seller meant to say to the buyer, ``You look the article over, and, if you buy it, you do so at your risk.' It means much the same as saying, ``If you buy you take the article with all its faults.'" See Williams v. McLean, 180 Miss. 6 (176 So. 717); Regula v. Gerber (Ohio), 70 N.E.2d, 662. We think that this interpretation of the term is correct, and that the words, "as is," when contained in a contract for the sale of personalty amount to an express limitation of warranties, and that unless the written contract itself contains express warranties, the article is sold unwarranted.

"Written evidence is considered of higher proof than oral; and in all cases where the parties have reduced their contract, agreement, or stipulation to writing, and assented thereto, it is the best evidence of the same." Code, § 38-205. "Parol contemporaneous evidence is inadmissible generally to contradict or vary the terms of a valid written instrument." § 38-501.

"Previous negotiations are merged in a subsequent written contract, and additional obligations cannot be grafted thereon by parol testimony, unless made subsequently to the contract and upon a valuable consideration." Champion Mfg. Co. v. W. W.Crandall Co., 16 Ga. App. 536 (85 S.E. 673).

"``The rule which denies effect to an oral agreement which contradicts a written contract entered into at the same time or later is not one merely of evidence, but is one of positive or substantive law founded upon the substantive rights of the parties.' 20 Am. Jur., 963, § 1100. It is settled by numerous decisions of this court that, where parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements can not be allowed to add to, take from, or vary the written instrument.' Albany Federal c. Assn. v. Henderson, 198 Ga. 116, 142 (31 S.E.2d 20); Bullard v. Brewer, 118 Ga. 918 (45 S.E. 711).

The petition in this case alleges that certain oral warranties were made prior to the consummation of the sale, at which time the contract or bill of sale was executed. The written bill of sale shows that as a part of the contract the plaintiff took the automobile "as is," and, as we have shown, this means without any warranty as to physical or mechanical condition or soundness. It is obvious, therefore, viewing the petition and exhibits as a whole and under the rules of law set forth, that the plaintiff, in order to prevail, would have to rely upon parol evidence, which he could not introduce in the face of the written contract exhibited with his petition. Therefore, the plaintiff's petition does not state a cause of action, and the court properly dismissed it on general demurrer.

Judgment affirmed. Sutton, C. J., and Felton, J., concur.