Few v. Automobile Financing, Inc.

115 S.E.2d 196, 101 Ga. App. 783, 1960 Ga. App. LEXIS 1010

• Court: Court of Appeals of Georgia
• Decided: May 17, 1960
• Docket: 38036
• Status: Published

Opinions

Bell, Judge.

Where the petition alleges a contract for the sale of an automobile on an instalment basis; that the defendant finance company entered into an agreement with the plaintiff whereby the defendant undertook to finance the automobile; that there were false representations on the part of the defendant in this financing agreement; that the defendant wrongfully seized and repossessed the automobile; that the defendant thereupon rescinded the contract whereby the plaintiff was entitled to recover the instalments paid; and that the plaintiff rescinded the contract because of the fraudulent acts of the defendant, the action is not subject to nonsuit if the evidence establishes a prima facie case on the cause or causes established by the petition.

In the instant case there is evidence to show that there is a doubt as to whether the seizure of the automobile was wrongful, and thus a jury question is raised, and a nonsuit should not have been granted.

Whether the acceptance of payments after their due date results in a departure from the original contract under Code § 20-116 usually presents an issue for the determination of a jury (Mauldin v. Gainey, 15 Ga. App. 353, 83 S. E. 276), and does so in this case. Code, § 20-116 provides: “Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given the other of intention to rely on the exact terms of the agreement. Until such notice, the departure is a quasi new agreement.” Furthermore, the provision against waiver of contractual rights may itself be found by the jury to have been waived. Commercial Casualty Ins. Co. v. Campbell, 54 Ga. App. 530 (188 S.E. 362). The protection sought to be granted by Code § 20-116 should not be dissipated by compounding non-waiver provisions in a contract. Though the case of Sovereign Camp WOW v. Hart, 187 Ga. 304 (200 S.E. 296) indicates opposition to a rampant acceptance of waivers on insufficient proof, its decision is engrossed in the particular facts and the provisions of membership in a fraternal benefit association and does not control this case.

Although the petition and evidence do not narrow the problem down to a single cause of action, -where there is evidence to raise a prima facie case on, any cause stated in the petition, a nonsuit should not be granted. See Dawson v. Pennaman, 65 Ga. 698.

Under the rules for determining the propriety of a nonsuit, namely: (1) the requirement that'a nonsuit should not be granted if the evidence and inferences naturally and reasonably deduced therefrom authorize a finding for the plaintiff (Martin v. Waycross Coca-Cola Bottling Co., 18 Ga. App. 226, 229, 89 S. E. 495); (2) that only slight evidence to support a case is necessary to- prevent a nonsuit (Barrett & Co. v. Terry A Smith, 42 Ga. 283, 288); (3) that if there be any evidence whatever to sustain the action it must go to the jury and the court may not grant a nonsuit (Berger v. McNatt, 211 Ga. 546, 87 S. E. 2d 73), and (4) that the evidence must be construed most strongly in favor of the plaintiff’s right to recover as against a nonsuit (Henry v. Roberts, 140 Ga. 477, 79 S. E. 115; Hardin v. Nicholas, 90 Ga. App. 738, 84 S. E. 2d 110), the nonsuit here was unjustifiably granted.

The order of the Civil Court of Fulton County sustaining the motion for nonsuit is hereby reversed.

Judgment reversed.

Townsend, Carlisle, and Nichols, JJ., concur. Felton, C. J., Gardner, P. J., and Frankum, J., dissent.