Boyd v. McArthur

| Ga. | Aug 12, 1904

Cobb, J.

The piano was purchased by Boyd .in his own name. He gave his note for the deferred payment. The instrument was delivered to Boyd pending negotiations in reference to the cash payment. The sale was, therefore, not complete, and the seller voluntarily gave possession pending the negotiations. While Boyd was acting in the matter as the representative of Taylor, who was to be the beneficiary of the contract and the ultimate owner of the piano, he was entitled to the possession of the instrument, as against the defendants, until he should be deprived thereof in a lawful manner. When the defendants concluded to refuse to accept as cash their own due-bill, before they were authorized to forcibly retake the piano without the consent of Boyd it was necessary that they should notify him of their intention to decline to accept the due-bill, and demand possession of tbe piano, and, upon the refusal of Boyd to deliver possession, proceed to acquire possession, not by forcibly entering the house of Boyd and taking possession of the piano without lawful warrant or authority, but by a proper proceeding in a court having jurisdiction of the matter. It is immaterial, under this view of the matter, whether Boyd was purchasing for himself or for Taylor. If he was purchasing for himself, of course he was entitled to possession of the piano until notified that the due-bill tendered would not be accepted as a cash payment. If he was purchasing for Taylor, he was entitled to possession until he should receive a similar notice; for, under the contract between’ Taylor and himself, he was to hold the piano, not as a mere servant or agent for Taylor, but as one having an interest in the property, that is, the right to use it for his own benefit; the agreement between Taylor and himself, as set out in the petition, creating the relation of bailor and bailee between them, and his possession being thus coupled with an interest in the property. In the case of Mitchell v. Railway, 111 Ga. 760, the plaintiff was a mere servant, having no interest whatever in the property in his possession. As against a general demurrer, the petition set forth a cause of action. Judgment reversed.

All the Justices concur.