Neal Ellis purchased a new 1969 Oldsmobile (General Motors product) from a franchised dealer and received with it a standard new car warranty which applied to the entire car (except tires) for 12 months or 12,000 miles, whichever occurred first after delivery, and thereafter to the power train components (specified) for 5 years or 50,000 miles, whichever occurred first. It provided on the face thereof and in heavy type that "This warranty is the only warranty applicable to this vehicle and is expressly in lieu of all other warranties, expressed or implied, including any implied warranty of merchantability or fitness for a particular purpose." It carried the vehicle identification number and specified on the outside, as folded, "Important . . . This folder, along with the Protect-O-Plate, must be kept with the vehicle at all times and made available to an authorized Oldsmobile dealer if warranty work becomes necessary. The folder must remain with the vehicle at time of resale . . ."
On the warranty was a "Notice to Second Purchaser. The second retail purchaser of the vehicle identified by the identification number shown above may apply for a Protect-O-Plate entitling him to any unexpired portion of the warranty coverage for a fee of $25 through an authorized Oldsmobile dealer. Application must be made within 30 days or 1000 miles of vehicle usage, whichever first occurs following the date of purchase, and the dealer must inspect the vehicle and advise Oldsmobile that it has received the required maintenance. The second purchaser, upon issuance of the Protect-O-Plate, will be required to pay the first $25 on each repair or replacement of warranted power train components made during the period between the expiration of the 12 months/12,000 coverage and the 5 years/50,000 miles coverage."
In May, 1969, appellant, Halco Instruments, Inc., purchased the Oldsmobile from Neal Ellis for the personal use of its president and general counsel, Glenville Haldi, paying $4,500 therefor. At that time the speedometer disclosed that it had been driven approximately 13,000 miles.
On July 7, 1969, when the car had been driven 14,911 miles, Halco Instruments applied through Callaway Motors, an authorized Oldsmobile dealer, for a transfer of the warranty and the issuance to it of a Protect-O-Plate. The fee of $25 was paid along with the application, and it was submitted to Oldsmobile Division of General Motors, which accepted it and issued to Halco a Protect-O-Plate which it might use in securing repairs or replacements by an authorized dealer under terms of the warranty.
In August, 1969, Mr. Haldi complained that the car was not driving properly, that he was not satisfied with the ride and that it had squeaks and rattles in the door, noise from windrush about the door windows, and that the front-end alignment was improper.
At the request of the dealer a representative of General Motors inspected the vehicle, finding that there was a harsh ride which could be corrected by the installation of new springs, rear arm controls and new rubber bumpers about the hood. These items were not among the "power train" components specified in the warranty, and since the vehicle had been driven more than 12,000 miles were not covered. Nevertheless, the representative offered to have the items sent to the dealer, who would install them without charge to Halco, but Halco failed or refused to make the car available for that purpose.
On November 18, 1969, Halco filed suit against General Motors seeking to recover for the entire purchase price which it had paid for the car, "plus all monies expended by petitioner for repairs and the purchase of a warranty," or for a replacement of the vehicle with another free from defects and with a comparable warranty.
General Motors answered, generally denying that the vehicle was defective other than in the respects to which it had offered to make repairs and replacements without charge and which Halco had not permitted it to make.
Requests to the plaintiff for admissions were filed and answers made; the deposition of Glenville Haldi was taken; interrogatories were addressed to defendant and answered; affidavits were obtained from the dealer through whom Halco had sought and obtained transfer of the warranty and Protect-O-Plate, and to whom complaints had been made concerning the performance of the car, and who had obtained the examination of the car by a representative of General Motors; and affidavits were also obtained from the representative who made the examination.
Plaintiff moved for summary judgment, submitting the affidavit of Mr. Haldi in which he asserted that neither he nor the plaintiff had ever received the warranty, that all that was received was the "Protect-O-Plate" to be carried with the car and presented for warranty work, that had he known that the warranty was so limited in scope he would not have submitted the application for its transfer or paid the $25 fee there for. Also submitted were the pleadings, all interrogatories and answers to and by either party, affidavits and depositions on file.
Defendant likewise moved for summary judgment, and except for Mr. Haldi's affidavit, submitted the same evidence, which was on file, and in addition a verified copy of the warranty, with an affidavit from an authorized representative of General Motors that is was a standard warranty used for delivery with the retail sale of all Oldsmobile cars.
Both motions for summary judgment were denied, and General Motors, obtaining a certificate for review, appeals. There is no cross appeal.
1. It is obvious that there is no coverage under the terms of the express warranty which was issued to the original purchaser, Mr. Ellis, and which was subsequently transferred to appellant. By its own terms it excludes coverage as to all items complained about after the vehicle was driven 12,000 miles.
2. When appellant applied for a transfer of the warranty, and subsequently received and accepted the Protect-O-Plate for use in obtaining warranty work, it became bound by the warranty terms and provisions. That it did not have or receive a copy of the warranty does not alter this conclusion. We must assume that when application for transfer was made the applicant knew what it was applying for. If it did not, it was incumbent upon it to seek and obtain a copy of it from General Motors, or from the dealer through whom the application for transfer was handled. When the application was accepted by General Motors and the Protect-OPlate issued and delivered, Halco got exactly what it had applied for; it became substituted for Mr. Ellis as the party to whom the warranty had been issued when the car was sold, and entitled to the service and repairs or replacements which the warranty provides to a second purchaser.
The undisputed testimony is that there is only one form of warranty issued by General Motors to the purchasers of its cars, and that the warranty issued to Ellis and subsequently transferred to Halco was on that form.
The application itself provided: "Your application for transfer of warranty will be reviewed by Oldsmobile Division and, if in order, you will receive a Protect-O-Plate bearing your name. If transfer of warranty is denied, you will be informed by your dealer." Thus Halco cannot contend that it sought other than a transfer of the Ellis warranty. It admits having received the Protect-O-Plate. Since the warranty provided that it should be kept in the car at all times and provided information to a second purchaser as to what his rights thereunder might be and how to obtain a transfer, it was reasonable to assume that Halco received the original of the warranty when it purchased the car. If that were not the case, it should have asked for another when arranging for the transfer. Cf. Security Life Ins. &c. Co. v. Gober, 50 Ga. 404; Hart v. Waldo, 117 Ga. 590, 595 (43 SE 995).
The application for transfer did not contemplate and did not constitute an application for the issuance of a new or different warranty.
3. By its terms the express warranty excluded all implied warranties. It fully complies with the requirements of the Uniform Commercial Code, as found in Code Ann. 109A-2--316 (2). Brown v. Chrysler Corp., 112 Ga. App. 22 (143 SE2d 575)
. See also Christie v. Thomasville Sales Co., 98 Ga. App. 151 (105 SE2d 254)
. The transferee under it could receive no higher or greater rights than were held by the party to whom it was originally issued. Cf. Algernon Blair, Inc. v. National Surety Corp., 222 Ga. 672 (151 SE2d 724)
. Consequently, plaintiff was in no position to urge breach of an implied warranty or to seek recovery there for.
4. Even if an implied warranty were not excluded by the terms of the express warranty there could be no recovery by Halco because of a lack of privity between it and General Motors. Wood v. Hub Motor Co., 110 Ga. App. 101 (137 SE2d 674)
; R. H. Macy & Co. v. Vest, 111 Ga. App. 85 (140 SE2d 491)
; Whitaker v. Harvell-Kilgore Corp., 424 F2d 549 (5 Cir.); Brooks v. Eastern Air Lines, Inc., 253 FSupp. 119 (N.D. Ga.). Since neither General Motors nor its authorized dealer sold the car to Halco, it is not a party to whom an implied warranty is extended by the terms of Code Ann. 109A-2--318. See Whitaker v. Harvell-Kilgore Corp., 418 F2d 1010 (5 Cir.), s.c. 424 F2d 549.
5. When goods are sold by an original purchaser to a third party as used or second-hand goods, there is, of course, no implied warranty with respect to the manufacturer or original seller. Even with respect to the original purchaser or second seller, absent special circumstances, "the rule is that there is no implied warranty as to the condition, fitness or quality of the article." Keating v. DeArment, 193 S. 2d 694, 696 (Fla. App.). Accord: Smith v. Mooers, 206 Va. 307 (142 SE2d 473); Yanish v. Fernandez, 156 Colo. 225 (397 P2d 881); Norvell-Wilder Supply Co. v. Richardson, 300 S. W. 2d 773 (Tex. Civ. App.); Driver v. Snow, 245 N. C. 223 (95 SE2d 519); Kilborn v. Henderson, 37 Ala. App. 173 (65 S2d 533).
6. If there were an applicable express or implied warranty as to the matters about which complaint was made and as to which General Motors offered to make correction without charge to Halco, its right to recover therefor is defeated by Halco's failure or refusal to make the car available for the work to be done. Ford Motor Co. v. Gunn, 123 Ga. App. 550 (1) (181 SE2d 694)
; International Harvester Co. v. Dillon, 126 Ga. 672 (55 SE 1034)
; Mayes v. McCormich Harvesting Machine Co., 110 Ga. 545 (35 SE 714)
; Christie v. Thomasville Sales Co., 98 Ga. App. 151
, supra; Davis v. Pontiac Motors Div. GMC., 120 Ga. App. 443 (170 SE2d 872)
; Lilley v. Manning Motor Co., 262 N. C. 468 (137 SE2d 847
Defendant has clearly demonstrated that plaintiff is not entitled to recover under either an express or an implied warranty, and it was error to deny its motion for summary judgment.