138 Ga. 651 | Ga. | 1912
The T. L. Smith Company, a non-resident corporation, filed a trover suit against the W. E. Austin Company, for the recovery of two machines known as “Smith concrete mixers,” and of the alleged value of $1,805. Demand for the machines and refusal to deliver were alleged. The plaintiff elected to take a money verdict. The defendant denied the plaintiff’s right to recover the machines, and set up a cross-action against the plaintiff, on an account alleged to be due by the Contractors Supply and Equipment Company, the predecessor in title of the T. L. Smith Company, for commissions claimed to be due on “concrete mixers” sold by the Contractors Supply and Equipment Company in the exclusive territory named in the contract between the W. E. Austin Company and the Contractors Supply and Equipment Company, said sales running through a certain period of time and amounting to $6,113.75, besides interest. An itemized statement of said account was attached to the petition. It was alleged in the cross-action that the T. L. Smith Company (hereinafter called the plaintiff) had purchased the Contractors Supply and Equipment Company, an Illinois corporation, and was liable to the W. E. Austin Company (hereinafter called the defendant) on said account. No charge of fraud was alleged as to the purchase of the assets of the Contractors Supply and Equipment Company, but the petition seeking to fix the liability on the plaintiff alleged that “the plaintiff, in taking over the assets, contracts, property, liabilities, etc., of the Contractors Supply and Equipment Company, and having, in its own interest and to serve its own ends, caused said company to cease doing business, became, was, and is liable in its place and stead to this defendant for said commissions and said sums.” It was also alleged that the plaintiff “took over the business and assets of said Contractors Supply and Equipment Company. . . The contract then of force, and which had been entered into with the supply company, was and became binding and obligatory in all of its terms and conditions upon the Smith Company and this defendant.” At the conclusion of the evidence, each side moved the court to direct a ver
In addition to other evidence offered by the plaintiff was a letter addressed to the plaintiff by the defendant under date of October 19th, 1908, as follows: “We, as previously stated, are perfectly willing to carry the two concrete mixers referred to on consignment account here for you, although they have cost us a great deal more money now for warehouse charges and insurance than we will ever get out of them; or we will accept your proposition to return the mixers to you to Milwaukee, and if you desire us to do so we will, as per our proposition made you recently, prepay the freight on them to Milwaukee. If you desire to have them shipped back rather than carry them here on consignment account, advise us, and we will ship them immediately,” The letters of the defendant to the plaintiff recognize the title to the machinery to be in the plaintiff, one of these referring to the mixers as being “here on consign^ ment, for your account.” And, “If 3ou desire to have them shipped back rather than carry them here on consignment account, advise us, and we will ship them immediately.” Pending negotiations as to a written form of assignment (about which the parties could not agree) of the mixers to the defendant, the latter
The one question, therefore, is, was the title to the property in the plaintiff or in the defendant at the time of the sale by the latter. We think when the supply company failed and sold part of its assets back to the plaintiff, including the machines in controversy, and the defendant then took. up the paper given to the supply company for the property, and recognized by its letters to the plaintiff that the property was held on consignment, that was a novation of the original contract, which vested the title to the machines in the plaintiff, and made the defendant liable fo the plaintiff as the owner of the property in controversy. The contract executed between the defendant and the supply company made the defendant the sales agent of the latter, and did not vest the title to the machines in the defendant. The evidence and all the reasonable deductions therefrom demanded the verdict, and therefore the court did not err in directing a verdict for the plaintiff for the value of the property sued for.
Judgment affirmed on the bill of exceptions of Austin Company, and reversed on the bill of exceptions of Smith Company.