113 Ga. 1157 | Ga. | 1901
An action of bail-trover was instituted against Burch,, in the superior court of Lincoln county, to recover possession of two mules. The plaintiffs were Pedigo & Lyons, suing for the use of B. H. Willis, and it appears from an admission of the parties that Burch gave to Pedigo & Lyons a promissory note for the purchase-price of the mules, which note contained a reservation of title in Pedigo & Lyons as security for the purchase-money of the mules, said reservation being to Pedigo & Lyons or order, until said note was paid. Defendant by his plea set up, that Willis was not a bona fide holder of the note for value before it became due, but that he held the same for the payees, and toot the same after due with full notice; and that the note was given as abalance due on two mules> but that the payees had previously sold to the defendant a horse which failed to come up to a warranty which was made as to her soundness, and hence there was a failure of consideration in the ■purchase of said horse of $165; that the payees had agreed to refund him that sum, but had never done so; and he pleaded it as a set-off to this action. The note which was given for the mules was dated February 17, 1897, and due March 15, 1897. The transfer to Willis was written on the note in the following language: “For value received, we hereby transfer to B. H. Willis, or order, all our right and title to the within note, without any recourse on us. This the 14th day of March, 1899. [Signed] Pedigo & Lyons.” It was admitted by the defendant that he was in possession of the property sued for. With this admission the plaintiff, having introduced the note referred to, closed. The defendant testified, in substance and in detail, to the facts set up in his plea, which evidence was, on motion of plaintiff's counsel, ruled out as irrelevant. There was no further evidence in the case; except that Willis, who is described as the usee, testified that the note did not belong to Pedigo & Lyons,
It must be borne in mind that the.action instituted was that of trover. We think that it is somewhat inconsistent, under the rules governing actions of this character, that one man should sue for the use of another, inasmuch as no one can recover as plaintiff unless he shows three things: right of possession of the property in himself. wrongful conversion by the defendant, and the value. This court ruled, in the case of Mitchell v. G. & A. Ry., 111 Ga. 760, that “While . . 'mere possession of a chattel . . will give a right of action for any interference therewith,’ such possession must be in the plaintiff’s own right, and not as agent of another.” And, in the same case, that “A petition brought in the name of a person who had not such possession, to recover personal property taken from him, can not be so amended as to proceed in the name of the plaintiff for the use of the real owner.” In delivering the opinion in that case, in which very many of the principles applicable to the action of trover are contained, Mr. Justice Cobb said: “When, therefore, it appears that the legal right of action is not in the plaintiff, he has no right of action at all, either in his own. name or
But the controlling issue which compels a reversal in this case is that neither the plaintiff in the case nor his usee showed title to the property, to recover which the suit was instituted, to be in either; and this is easily determined from certain undisputed facts which appear in the record. These were: Pedigo & Lyons were the payees of the note given for the balance of the purchase-money of the mules; in that note title to the mules was reserved to Pedigo & Lyons, or order, until said note was paid. Pedigo & Lyons, for value received, transferred all their right and title to the note, without recourse on them, to Willis, or order. The effect of the reservation was, of course, to keep the title in Pedigo & Lyons until the