1. The court erred in overruling the defendant's demurrer to the alleged damages incurred because of the trading of the plaintiff's automobile.
2. Items of expense incurred by the plaintiff in good faith in trying to locate the cause of the trouble with the automobile were properly pleadable, and it was for the jury to say whether or not any particular item so pleaded was a reasonable expense.
3. The court erred in overruling the demurrer and in refusing a new trial.
DECIDED DECEMBER 5, 1945. This is an action by E. W. Griffin against Speed Oil Company of Atlanta for $285, alleged to be the damages sustained by the plaintiff on account of the wrongful conduct of the defendant in selling him an inferior grade of gasoline for use in his automobile. The plaintiff is a mail carrier and uses an automobile in transporting the mails. On January 20, 1943, he purchased a tank of gasoline from the defendant at its place of business in Dublin, Georgia, one of the towns on the plaintiff's mail route, which begins at Cochran. Although his automobile was in perfect mechanical condition, he found after the purchase of the gasoline from the defendant that it would not run satisfactorily, that is, without continually jumping, stopping, spitting, and back-firing. The automobile was taken to three different mechanics, experts in their line, all of whom failed to find the trouble, although they went to the extent of changing the motor oil twice, putting new wires on and installing a new battery and a new carburetor, at an expense to the plaintiff of $35. It was alleged that after the plaintiff had exhausted every means, and had used all the diligence at his command, and finding himself about four hours late on his schedule, he was forced in the emergency to expend $250 cash in trading the automobile, which would not run (because of the inferior gasoline), for another car of no greater value; and when it was finally discovered that the faulty gasoline was the trouble, and it was withdrawn from the tank of the car he had traded and other gasoline put in, it cranked immediately and ran perfectly and smoothly. The $250 paid by the plaintiff in exchanging automobiles, under the circumstances set out, and the $35 paid to mechanics before the car was traded, made up the $285 claimed as damages.
The defendant demurred generally to the petition on the grounds: *Page 243 because it stated no cause of action; because it appeared that no damage for which the defendant was liable resulted from the acts alleged; because the damages sought to be recovered were too vague, indefinite, and speculative; and because the damages complained of were not contemplated at the time of the transaction referred to. Special demurrers were filed to specific paragraphs of the petition, on grounds substantially the same as those contained in the general demurrers. All of the demurrers were overruled, and there was a verdict in favor of the plaintiff for $125. Error is assigned in this court on the overruling of the demurrers and on the denial of the defendant's motion for a new trial. 1. There is an implied warranty in all cases that "the article sold is merchantable, and reasonably suited to the use intended." Code, § 96-301 (2). This is an action excontractu based on a breach of the implied warranty of the seller that the gasoline was merchantable and reasonably suited to the use intended. "Damages are given as compensation for the injury sustained." § 20-1402. "Remote or consequential damages are not allowed whenever they cannot be traced solely to the breach of the contract." § 20-1406. "Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach, and such as the parties contemplated, when the contract was made, as the probable result of its breach." § 20-1407. "Where by a breach of contract one is injured, he is bound to lessen the damages as far as is practicable by the use of ordinary care and diligence." § 20-1410. These principles of statutory law relate to actions based upon contracts, and we think that they are applicable to and control the instant case.
The demurrers of the defendant to the allegations of the petition respecting the $250 paid out by the plaintiff in trading automobiles should have been sustained. It cannot reasonably be said that this item of alleged damages can be traced solely to the breach of the contract. Nor can it reasonably be said that these alleged damages are such as arose naturally and according to the usual course of things from the breach of the contract, or that the parties contemplated such as the probable result of the breach. We think *Page 244 that it may be said that the plaintiff, who was bound to lessen the damages as far as practicable by the use of ordinary care and diligence, did not do so in disposing of the car, in which the inferior gasoline had been put by the defendant, at a loss of $250. It is more reasonable to say that the plaintiff should have discovered that the trouble with the car was the defective gasoline. The very nature of the trouble would have indicated to the ordinary person, with average experience in the driving of automobiles, that it was either in the gasoline itself or in the gas feeds and connections. It seems that the plaintiff did almost everything except the right thing, and the thing that most drivers would likely have done first, in trying to locate the trouble. We think that the $250 item of damages should have been stricken from the case, and since the demurrer was improperly overruled, and proper exceptions taken thereto, all that took place in the trial thereafter was nugatory.
2. As to the allegations of the petition that $35 was paid by the plaintiff to mechanics for endeavoring to find the trouble, changing the oil, wires, battery, and carburetor, no demurrer was filed by the defendant. We think that any reasonable amount expended by the plaintiff on mechanics, in an effort to locate the trouble with the automobile, including any reasonable amounts paid out in good faith by the plaintiff, on the advice of such mechanics for any parts or appurtenances to the motor, would be recoverable by the plaintiff in the case. Under this ruling, it is a question for the jury whether or not any particular item or items of expense were reasonable under the circumstances in the case.
The plaintiff cites Lawrence v. Atlanta Gas Light Co.,49 Ga. App. 444 (176 S.E. 75), and Elwell v. Atlanta Gas LightCo., 51 Ga. App. 919 (181 S.E. 599), as authority that an action ex delicto may be based upon the violation of a duty imposed by law because of a contractual relationship between the parties. Those cases are unlike the case at bar, in that an element of malice or bad faith was involved, or at least charged in the plaintiff's allegations, whereas in the instant case no bad faith is claimed. We recognize the rule that an action in tort may grow out of the violation of a contract, but that principle is not applicable to this case under our construction of the pleadings. *Page 245
3. The court erred in overruling the defendant's demurrer, as indicated in division 1, and in denying its motion for new trial.
Judgment reversed. Sutton, P. J., and Felton, J., concur.