56 Ga. App. 544 | Ga. Ct. App. | 1937
Lead Opinion
This was a trover suit by the C. I. T. Corporation against W. 0. Smith, for recovery of a certain Plymouth automobile'. The plaintiff claimed title to the automobile, and alleged that its value was $350 on September 24, 1936, when the suit was hied, and that under ordinary conditions of use it would have been worth $550 at that time, but that it liad been involved in two or more wrecks. The defendant in his answer admitted possession, and denied that the plaintiff was entitled to possession of tire automobile, and set up that the right of possession was solely in the defendant. After introduction of evidence by the plaintiff, the court granted a nonsuit, and the plaintiff excepted. Substantially the following facts appear from the evidence: On June 10, 1936, the defendant purchased the automobile involved in the case from Andrews Motor Company, Rome, Georgia, at a price of $837, paying at the time $100 in cash and being allowed $125 for a truck traded in on the purchase, leaving a balance of $612 which was to become due and payable in eighteen equal monthly installments of $34 each. The defendant executed to the Andrews Motor Company a retention-title contract covering this automobile, which was transferred to the C. I. T. Corporation and which, among other things, provided: “Said property will he kept at the following address 500 Charlton Road, Rome, Ga. . . If any installment is not paid in full when due, or if purchaser fails to perform any of his obligations or to comply with any condition of this contract, or if the holder hereof shall deem itself insecure, the full amount unpaid hereunder, including any- note given, shall without notice become due and payable forthwith. . . Purchaser agrees in any such case to deliver the property to
“Where a defendant in an action of trover admits in his plea or answer his possession of the property at the time of the
The retention-title contract provided: “Said property will be kept at the following address, 500 Charlton Road, Rome, Ga. . . If any installment is not paid in full when due, or if purchaser fails to perform any of his obligations or to comply with any condition of this contract, or if the holder hereof shall deem itself insecure, the full amount unpaid hereunder, including any note given, shall without notice become due and payable forthwith.” The insecurity provision in this contract is valid and enforceable. 55 C. J. 1286, § 1311 (3). Under the facts and circumstances of this case the jury would have been authorized to find that the plaintiff acted in good faith in deeming itself insecure and in bringing its trover action under the insecurity clause of the contract,
Judgment reversed.
Rehearing
ON MOTIONS EOR REHEARING.
1. On the issue whether the plaintiff acted in good faith in deeming itself insecure, the testimony of certain witnesses to the effect that they would consider the defendant good for certain amounts was properly admitted in evidence over objection of counsel for the plaintiff. On the same issue the court erred in not permitting the local manager of the plaintiff corporation to testify that before filing the trover action, and after learning that the automobile was being used by the defendant’s brother-in-law, Forrest Davis, who had the reputation of handling and transporting liquor and had wrecked the automobile, he requested the
2. The contention that the plaintiff is not entitled to recover, because on the trial of the case it was shown that the plaintiff had divested itself of title to the automobile, is without merit, it appearing without dispute that the plaintiff had title at the time the suit was instituted. Willis v. Burch, 116 Ga. 374 (42 S. E. 718); McElmurray v. Harris, 117 Ga. 919 (43 S. E. 987).
3. The failure of the plaintiff to surrender to the defendant, on the trial of the case, the retain-title note given to the seller for the balance due on the automobile would not bar the plaintiff from recovery, inasmuch as bringing the trover action rescinded the sale contract, and thereafter neither the plaintiff nor the original seller could enforce the note or the sale contract against the defendant. General Motors &c. Cor. v. Coggins, 178 Ga. 643 (173 S. E. 841).
The motions for rehearing are
Denied.
Dissenting Opinion
dissenting. A plaintiff can never be entitled to recover in a trover suit in the absence of proof of a conversion or something equivalent thereto. The Code, § 107-101, declares: “In actions to recover the possession of chattels, it shall not be necessary to prove any conversion of the property where the defendant is in possession when the action is brought.” If this section applies to trover suits, it has never been construed to mean literally what it says. It is construed to mean that proof of conversion may be dispensed with in eases where the defendant is in possession claiming the property as his own, in which event proof of conversion, as such, is unnecessary, because the claim of the defendant itself amounts to a conversion. The violation of the insecurity clause in the contract in this case does not constitute a conversion. It simply accelerates the maturity of the contract, and gives the holder whatever right he would have had if the contract matured in due course. We should therefore treat the case as if the contract had so matured. Under a retention-of-title contract the buyer has the right of possession of the property. The seller, or transferee, has the title. The seller is not entitled to possession unless there has been a conversion. There was no evidence of conversion in this case. There was no demand and refusal, or anything else amounting to a conversion, and under the authority of Barbour v. Day Co., 37 Ga. App. 267 (139 S. E. 909) a nonsuit was demanded.