Young v. Certainteed Products Corp.

133 S.E. 279, 35 Ga. App. 419, 1926 Ga. App. LEXIS 411

• Court: Court of Appeals of Georgia
• Decided: May 14, 1926
• Docket: 16867
• Status: Published

Opinion

Bell, J.

The plaintiffs in this ease bought roofing from a local dealer. It proved to be affected with latent defects. They sued, not the dealer, from whom they purchased, but the dealer’s vendor, the manufacturer. The court sustained a general demurrer to the petition, and the plaintiff excepted. We construe the petition as an action for breach of implied warranty. Counsel for the plaintiff in error contend for a different construction, but, from the language used, we are very clear that none other is possible. In Smith v. Williams, 117 Ga. 782 (45 S. E. 394, 97 Am. St. E. 220), the Supreme Court said: “Where personal property is sold, and there are defects latent and concealed, and unknown to the vendee, and a subsequent purchaser is injured by reason thereof, an action for damages sounding in tort may sometimes arise against the one negligently putting the thing in circulation. Longmeid v. Holliday, 30 L. J. Ex. 430; Lewis v. Terry, 111 Cal. 39 (53 Am. St. R. 146). Compare Civil Code, §§ 3864, 3865, as to sale of unwholesome provisions and drugs. But a warranty of soundness is not negotiable' (Dukes v. Nelson, 27 Ga. 463); and if so, there is no reason why a warranty of title in the sale of personal property should stand on any different footing. A warranty does not run with the article sold. If the title is not good, the vendee must look to him from whom he purchased, and to whom he paid the consideration. Central R. Co. v. Ward, 37 Ga. 531. The remedy of the subsequent purchaser is against his immediate seller, and not against the original owner.” The petition failed to set forth a cause of action, and the demurrer thereto was properly sustained. See also Civil Code (1910), § 5516.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.