54 Ga. App. 873 | Ga. Ct. App. | 1936
Lead Opinion
Fred L. Ward brought trover against Capital Automobile Company for a certain Oldsmobile automobile. The jury found in favor of Ward, and the defendant’s motion for new trial was overruled. The writ of error presents exceptions to that judgment. Briefly summarized, the evidence discloses that sometime during March, 1935, the plaintiff had purchased a Ford automobile from Mrs. Cowan, who at that time was carrying on a garage business, dealing in new and used cars. On or about May 34, 1935, the plaintiff approached Mrs. Cowan with regard to the purchase of an Oldsmobile automobile. They reached an agreement whereby she was to allow the plaintiff $686 for his Ford, to be applied on the purchase-price of the Oldsmobile which was $868. It appears that Mrs. Cowan was not a regular authorized dealer in Oldsmobile automobiles, and did not have the type of ear desired by the plaintiff, and that she requested him to advise her in this regard. On the same day he informed Mrs. Cowan that
It is true that where an agreement is made to sell personal property for cash, and on delivery of the property a check is given for the purchase-price, as between vendor and vendee the title to the property does not pass, tinless it be expressly agreed between the parties that the check is taken as payment; and where the check-is presented to the bank by the vendor in the usual course of business, and is returned by the bank as worthless, the vendor may recover possession of the property from the vendee. Winton v. Butler, 53 Ga. App. 696 (186 S. E. 773). However, this principle is by its express terms applicable only as between vendor and vendee. “The general rule, applicable to property other than negotiable securities, that the seller can convey no greater right or title than he has, is only predicable of a simple transfer from one person to another where no other element intervenes.” 24 R. C. L. 378-9, § 665. “Where an owner has given to another such evidence of the right of selling his goods as, according to the custom of trade or the common understanding of the world, usually accompanies the authority of disposal, or has given the external indicia of the right of disposing of his property, a sale
Judgment affirmed.
Rehearing
ON MOTION FOR REHEARING.
The ruling of this court in its original opinion: was that where an owner of personal property agrees to sell it to another person for cash, and, on delivery of the property to the
Counsel further contends that because the invoice to the automobile from the Capital Automobile Company to Mrs. Cowan was marked “Paid by two checks,” which invoice was delivered to Ward on his purchase of the car, he was thereby put on notice of the law that checks are not payment until themselves paid, and that it was his duty to ascertain whether the checks had been paid before he purchased the car. . On the contrary, we have been inclined to hold that the entry of the Capital Automobile Company on the invoice of the words “Paid by two cheeks” was conclusive evidence, where third parties were involved, that the checks were accepted as payment. However, aside from this, Ward, the purchaser, had a right to rely on the fact that if the Capital Automobile Company had intended to retain title to the car for any length' of time and had not intended for Mrs. Cowan to treat the car as her own, it would have either (1) executed a retention-of-title contract as provided by law, or (2) would not have delivered possession of the ear under the contract of sale until the purchase-price was paid. We remain of the opinion that our original holding is correct.
Rehearing denied.