Trailmobile Division of Pullman, Inc. v. Jones
Trailmobile Division of Pullman, Inc. v. Jones
Concurring Opinion
concurring specially. I concur in the judgment of affirmance, but do not think it necessary that the question upon which the majority based the affirmance be decided; this for the reason that a preliminary question will also dispose of the case. The evidence was sufficient to authorize a finding that the defendant appellee returned the truck to the appellant for the purpose of having the same repaired, or if the appellant was unable to repair it the appellant could keep it in payment of the debt. The evidence was further sufficient to authorize a finding that a reasonable notification of the time and place of sale, as required by Par. 3 of Sec. 109A-9 — 504 of the Ga. U. C. C., was not given, which would preclude a recovery of a deficiency judgment. As to the accord and satisfaction, see Gibson
Opinion of the Court
Insisting that its motion for directed verdict was erroneously overruled, the plaintiff contends that a showing of regular payments by the defendant over a 12-month period, plus evidence that the trailers had been used for a total of over 50,000 miles, demands the conclusion that any defense of breach of warranty or failure of consideration on the part of the buyer was waived when he continued to use the vehicles with notice of their defects, within the meaning of Code Ann. § 109A-2 — 602 (1) which provides: “Rejection of goods must be made within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller,” and of Code Ann. § 109A-2- — -606 (1) providing: “Acceptance of goods occurs when the buyer (a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their noncomformity.” There was uncontradicted testimony in 1964 when the purchase was made that the seller had shifted to construction of aluminum trailers, and that changes had subsequently been made in the model purchased by the defendant by adding additional cross-hatch supports to the frame. The defendant’s testimony was that these vehicles were in exchange for two which were also of experimental construction and which had “broken in two”; that within two months and about 10,000- miles of travel the vans here involved began sagging in the middle when loaded and the doors could not be opened; that plaintiff had to use a forklift to close the door after loading; that plaintiff, who had dealt with the defendant before, was aware of the type load for which he used the trailers, which was loads of soft drinks within legal load carrying limits, and that these vehicles were never overloaded or loaded with other, heavier materials;
The remaining enumeration of error presents nothing for consideration. ' We are cited to no order or judgment of the court ruling on objections to the defendant’s amendment, and, with the amendment in the record evidence in support of its propositions was allowable. Other enumerations of error are abandoned, and no page reference is made to Exhibit 4 which appellant contends was erroneously excluded from evidence.
Judgment affirmed.
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