14 S.E.2d 153 | Ga. Ct. App. | 1941
A written offer to buy personal property in which it appears that the title thereto is to be reserved in the seller until the purchase-price is paid, which is executed and signed by the purchaser and witnessed as provided by law for the execution of bills of sale to personalty and authorizing their record, is not a bill of sale and does not become one until acceptance of the offer by the seller; and where, after such written offer has been accepted by the seller, there is no such execution of the contract in the manner prescribed by law as would authorize its record, the contract formed by the acceptance of the seller is not entitled to record; and where it has been placed on record, it serves as constructive notice to no person undertaking to assert a lien on the property.
"To sustain its claim, the National Cash Register Company relies upon two certain instruments, copies of which are attached hereto designated, respectively, exhibits A and B. The register was sold by claimant to defendant on a deferred payment plan, and there remains due the sum of eight hundred eighty-five ($885) dollars as the balance of the purchase-price. Both of said instruments, exhibits A and B, were procured upon the solicitation of a representative of the National Cash Register Company, and the company relied on these instruments when it delivered possession of the cash register to Harold W. Brown. At the time of the signing of the instruments Harold W. Brown paid in cash to the representative of the National Cash Register Company the sum of seventy ($70) dollars as part of the purchase-price of the register. At the time the instrument designated exhibit A was signed and witnessed and the affidavit of J. R. Morehead was made, the serial number of the cash register, 3734444, was not inserted, the machine at that time not having been manufactured. Subsequently, on or about November 2, 1938, after the machine had been manufactured, the serial number was, by an agent of the National Cash Register Company, inserted in said instrument in a blank which had been left for that purpose, and in the place where it now appears as shown in the copy of said instrument attached hereto as exhibit A. The said agent had no specific authority from the National Cash Register Company to insert said serial number in said contract, but did so in the course of the regular and usual duties of such employee in the business of said National Cash Register Company as regularly conducted. The style number, 6084 (7) 5C, was inserted in the instrument at the time of its being signed on September 7, 1938. At the same time the serial number was inserted in the instrument designated exhibit A the serial number likewise was inserted *741 in a blank left for that purpose in the instrument designated as exhibit B. At the time the instrument, exhibit A, was signed on September 7, 1938, there was also left blank a line underneath the name `The National Cash Register Company' and also a blank opposite the word `accepted.' On September 14, 1938, these blanks were filled in with the date now shown thereon opposite the word `accepted' and M. J. Levy, a duly-authorized representative of the National Cash Register Company, signed his name in the position now shown on exhibit A. After September 14, 1938, the National Cash Register Company manufactured and delivered to Harold W. Brown the cash register in question, delivery having been made on or about November 15, 1938. On that date the instrument designated exhibit B was, by a representative of the National Cash Register Company, dated `11-15-1938.' On November 17, 1938, the instrument exhibit A was filed for record in the office of the clerk of the superior court of Muscogee County, Georgia, and the instrument was recorded in mortgage book 111, page 358. The public record discloses the serial number, 3734444, in the position indicated in exhibit A. Likewise, the public record shows the acceptance by the National Cash Register Company, by M. J. Levy, on September 14, 1938."
The pertinent and material portions of the instrument referred to in the foregoing stipulation of facts as exhibit A are as follows: "City Columbus, County Muscogee, Georgia. The National Cash Register Company, Dayton, Ohio: Date Sept. 7, 1938. Please manufacture and ship freight prepaid to 1026 Broadway, City Same County Same, Georgia or to the nearest railroad station (residence address same), one cash register style 6084 (7) 5C, denomination of keys, special ____, accounting machine style ____, to be used for ____ Numbers 3734444 ____. Kind of business, Restaurant; finish Black and Chromium; for which undersigned agrees to pay you. . . This order subject to acceptance by the company at Dayton, Ohio. . . You are authorized to insert here the numbers of the chattels assigned to this order and to date the note provided for herein. The chattles shall remain your property until the price, or any judgment for the same, is paid in full. . . Metropolitan Cafe, by Harold W. Brown. J. R. Morehead, Witness. Accepted, September 14, 1938. The National Cash Register Co. by M. J. Levy. . . In person came J. R. *742 Morehead who, being duly sworn, deposes and says that he saw Harold W. Brown sign and deliver the within deed for the purpose therein mentioned, and that affiant signed the same as witness thereto. J. R. Morehead. Sworn to and subscribed before me this 7th day of September, 1938, Gales A. Craig, Notary Public, Muscogee Co., Ga. . . State of Georgia, Muscogee County, clerk's office, Superior Court. Left for record this the 17th day of November, 1938, at 8:40 o'clock a. m. Recorded in book 111, page 358, this 17 day of Nov., 1938. N. Allie Jones, Deputy Clerk." The instrument appears in the record as recorded, November 17, 1938, in the office of the clerk of Muscogee superior court. The judge sustained the claim of the National Cash Register Company, and the plaintiff excepted.
The paper executed by the defendant is not a bill of sale. It is merely an offer to purchase the cash register. In National Cash Register Co. v. Lipka,
It follows that the judge erred in rendering judgment in favor of the claimant.
Judgment reversed. Sutton and Felton, JJ., concur.