37 S.E.2d 636 | Ga. Ct. App. | 1946
Lead Opinion
1. Where printed forms, a note and a bill of sale to secure it, with blanks thereon for the insertion by the grantee of the amount of the transaction and the time when the payments were to be made, were signed with none of such blanks filled in, and the blanks into which were to be inserted the name of the grantee and the time the payments were to be made were filled in, contrary to the instructions of the grantor and to his injury, with the name of a person not intended by the grantor to be the grantee and with the time the payments were to be made not intended by the grantor to his injury, as between the original parties such papers are void.
2."Where the vendor of personal property to which title is retained until it is paid for in full wrongfully deprives the vendee of possession, the vendor is guilty of conversion, and the vendee may maintain an action of trover against the vendor for the property."
3. "When the plaintiff elects to demand a verdict for damages alone, as [he] did in the present case, and the evidence shows that the interest of the plaintiff in the property at the time of the conversion is less than that of absolute ownership, the measure of damages will be the value of the plaintiff's interest therein, whatever it may be."
4. "Where the plaintiff in a trover action elects to take a money verdict, he may recover the value of the property at the date of the conversion . . with a reasonable hire from that date to the date of the trial, if the property is of a character that hire may be recovered."
5. The amount of the verdict here was within the range of the evidence as it related to the plaintiff's interest in the property, and in addition the reasonable hire of the truck and trailer from the date of the conversion to the date of the trial. The evidence authorized the verdict.
Apparent authority is power which results from acts thatappear to third persons to be authorized by the principal. Restatement of the Law of Agency, 440, § 194 (a). The jury were authorized to find under the evidence that there was no third party involved in the instant case, as the whole controversy was between the original parties to the transaction. Restatement of the Law of Agency, 332, § 125; 126, § 51.
The fact that an agent is intrusted with an instrument and is authorized to do something with reference to the instrument does not give him power to deal with the instrument in an unauthorized *536
way. Restatement of the Law of Agency, 421, § 177; see especially p. 400, § 164, and p. 418, § 175. In 41 C. J. 420, § 276, it is said: "When a mortgage is duly and properly executed, but contains blank spaces for the name of the mortgagee, the description of the property to be covered, or the amount and conditions of the debt to be secured, and the blanks are afterward filled up in accordance with the directions of the mortgagor and binding upon him, at least in equity; but it is otherwise if the blanks are filled up without his authority or consent, or contrary to his direction. So if a mortgage left blank as to the mortgagee's name is filled up in accordance with the mortgagor's instructions and comes into the hands of an innocent and bona fide holder for value, it will be a valid security, without reference to whether such instructions were oral or in writing, or whether the name was inserted before or after delivery, or in the presence or absence of the mortgagor. But if the instrument is filled up contrary to the directions of the mortgagor, and to his injury, with knowledge on the part of the person who takes and holds under it, it is null and void as to him. An agent may have implied authority to fill in the name of the mortgagee." We think that this same rule, which is applicable to a mortgage, would be applicable to a conditional bill of sale in this State. In State v. Matthews,
Gisi, the manager of the Loan Company, claimed and testified that the blanks were filled out in the papers before Baker signed them and delivered them to the Loan Company. It is contended that the undisputed evidence disclosed that the printing on the conditional-sale contract which Baker admitted signing was the usual printed form for such a contract, and not the usual printed form for a loan contract. If Gisi — after having requested astraight bill of sale to Baker from the Sales Company with the statement therein that the purchase-money had been paid in full by Baker to the Sales Company — had merely had Baker fill out a straight bill of sale to the Loan Company, and had then filled out the blanks in the printed forms as directed by Baker, his papers would have been in the usual form.
The defendant in error contends that he tendered the two monthly payments which the Loan Company claimed were in default, within the 60-day period in question. He contends that the Loan Company was attempting — by the manner in which they filled in the blanks in the printed forms, which he had signed, contrary to his direction — to avoid responsibility for the usurious interest, in which Gisi thought he would be protected. Hence we think that the parol evidence in question was admissible to show that the alleged written contract had never had any inception, and to deny the existence of the alleged valid written contract, and not to contradict it. Bray v. Comer Mercantile Company,
It might be noted that the plaintiff in effect paid $650 in cash, $1180 in repairs and improvements, and $300 for tires for the truck in question, and $212.25 in cash as the first monthly installment, making a total of $2342.25. The defendant claims *540
that he paid an insurance premium of $345 for one year. Thus, the interest on the loan, and the insurance on the property in question, on which the Loan Company had made the loan to the plaintiff of $1600, was $947 plus $345, or $1292 "carrying charges." It might be further noted that the judge charged the jury that, "if you find for the plaintiff you would, gentlemen, of course, take into consideration any amount that defendant might have advanced for plaintiff's benefit in financing the purchase of the truck and trailer." Be that as it may, in a trover suit, such as the one here, in which a recovery is sought for the value of the property on the date of conversion, and hire, it has been said: "Where the vendor of personal property to which title is retained until it is paid for in full wrongfully deprives the vendee may maintain an action of trover against the vendor for the property. White v. Dotson,
In the instant case, there was testimony that on the date of the conversion the truck and trailer was of the value of $2300, and that the defendant, the vendor, had advanced on it $1600 to the buyer. This left the interest of the plaintiff in the truck at $700. In addition to this, there was evidence that the reasonable hire for the truck and trailer was $200 per month, and that the date *541
of the conversion was March 17, 1944, and the date of the verdict was April 19, 1945, a period of 13 months and 2 days — which, if accepted by the jury, would make a total of $700 plus $2600, or $3300. Douglas Motor Co. v. Watson, supra; Roper WholesaleGrocery Co. v. Faver,
There being a dissent in the division of this court to which this case was originally assigned, the case was considered and decided by the court as a whole, pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. Laws, 1945, p. 232).
Judgment affirmed. Sutton, P. J., Felton, Gardner, andParker, JJ., concur.
Dissenting Opinion
The evidence disclosed the following facts: Baker bought the property from P. G. Sales and Service, and signed a note promising to pay the purchase-price in 12 monthly installments of $212.25 each. The conditional-sale contract entered into by Baker and the seller provided that the installment payments were secured by a retention of title to the property sold, with the right reserved to the seller to retake possession of it at any time after a default in the payment of any of the monthly payments and to sell the property without any process. The note and the conditional-sale contract were indorsed over to the defendant by P. G. Sales and Service, "Without recourse," the defendant paying $1600 therefor. The undisputed oral testimony showed that Baker had paid only one installment and was in default for several installments when the property was taken possession of by the defendant. Baker was allowed to testify that he had signed the note, the conditional bill of sale, and the other papers, when they were blank and contained no writing upon them, but had only printed words thereon, leaving blank spaces to be filled in later. He further testified: that he bought the property on a cash transaction from P. G. Sales and Service, and needed $1600 to pay the purchase-price thereof; *542
that he procured that amount from the defendant as a loan, and that he signed the note, the conditional bill of sale, and the other papers in the defendant's office when they were blank, except for some printed words thereon; and that he and the defendant's agent entered into a verbal agreement, at or before he signed the blank papers, that the name "P. G. Sales and Service" should not appear in the note or contract as the payee, and that, in the event he should be away from Atlanta when any installment payment became due, he would not be required to pay it until he returned to the city, provided he returned within 30 or 60 days. The undisputed evidence disclosed that the printing on the conditional-sale contract, which Baker testified that he could read and did see the printed words on the paper that he signed. The above-stated testimony was objected to on the ground that it varied, contradicted, and added to the terms of the written contract between the parties. In the absence of fraud, accident or mistake, a contemporaneous parol conditional stipulation at variance with or inconsistent with the writings will not be annexed. Probasco v. Shaw,
Furthermore, it is obvious that, if the blank spaces had been filled out in accordance with the alleged oral agreement, the filled-in matter would have been incompatible with the printed forms on the papers, which were the usual printed forms for a conditional-sale contract. Moreover, the alleged oral agreement that Baker was to have 30 or 60 days of grace in which to pay past-due installments, if incorporated into the writtencontract, would have been in direct conflict with the terms andspirit of that contract. "Parol evidence is admissible to prove portions of an agreement not inconsistent with the writing, where the written instrument does not purport to contain all the stipulations of the agreement; but *543
before parol evidence can be received to show a collateral agreement, it must appear that the contract is incomplete and that what is sought to be shown by parol in no way conflicts with what is contained in the writing. The provision of law which permits parol proof in cases of apparent incompleteness in the statement of the obligations of the parties denies any such proof which may vary the written terms or impose any terms dependent upon oral agreements prior to the contract." Renfroe v.Alden,
Furthermore, Baker was not entitled to recover the property sued for unless he had paid the defendant company the amount of money, or tendered payment thereof, which he owed it on the purchase-price of the automobile. The undisputed evidence was that Baker still owed the defendant a substantial amount of the purchase-price of the car when he filed this trover suit, and he could not in good conscience recover the car or its value without making restitution of the amount which he owed the defendant on the purchase-price of the car. Williams v. Fouche,
The petition in the instant case contained no allegation that the amount still due the defendant had been paid, or that it had been tendered; and the evidence is silent on that subject.