43 Ga. App. 536 | Ga. Ct. App. | 1931
On August 15, 1929, Georgia Power Company brought a bail-trover action against Dugas Corporation to recover “a certain one hundred horse-power Fairbanks-Morse Diesel engine direct connected to a 75 KW, 2300 volts, three phase, 60 cycle generator with exciter and all accessories, of the value of $3,000 or other large sum.” The.trial resulted in a money verdict and judgment for the plaintiff, and the exception here is to the overruling of the defendant’s motion for a new trial.
The petition substantially alleges: 1. Defendant is a corporation having its principal office, an agent and place of business in Lumpkin County, Ga. 2. Possession of the property in the defendant. 3. Title to the property in petitioner. 4. “The yearly value for the use of said property is $300 or other large sum.” 5. “Petitioner has demanded and the defendant has refused to deliver to petitioner said property, or to pay petitioner the profits thereof.”
The original answer to the petition is substantially as follows:
The original answer was amended substantially as follows: 1. “Defendant holds property involved . . under lease with privilege of buying same within three years after date of contract.” 2. “Defendant's time of lease not having expired, plaintiff can not hold him liable for conversion for holding possession under bond, nor take money judgment or judgment for damages. Plaintiff's action is premature and should abate.” 3. “Defendant says that the agents of plaintiff who palmed off the engine on defendant were C. S. Hammond and Charles A. Collier. Said plaintiff's agents represented that said engine was merchantable and would perform efficiently the work for which it was made. Relying on said statements, and as a result, defendant was induced to take said property, and was thereby damaged in the amount of $800.” 4. “Plaintiff is not entitled to elect money or damage judgment because not first offering before said election or tendering to defendant said contract under which defendant became possessed of said engine, nor offered to rescind.” At the close of the evidence, the defendant further amended its answer by pleading total failure of consideration.
Plaintiff introduced in evidence the written agreement between Georgia Power Company, party of the first part, and Dugas Corporation, party of the second part. This agreement, executed in duplicate on December 23, 1927, recited that the party of the first part “has this day leased to party of the second part for use in its plant at Dahlonega the property sued for, now installed in the plant of the party of the first part at Metter, Ga., upon the following terms, rental, and conditions, to wit.” We now state the substance of the parts of the contract material to the questions involved: 1. Party of second part accepts delivery of said prop
C. S. Hammond, sworn for the plaintiff, testified in substance that as an employee of the plaintiff companjr he -was instrumental in having said contract drawn up, and that at that time he told Mr. Dugas that he, witness, had never seen the engine, and that he
Mr. McDonald, sworn for the plaintiff, testified substantially as follows: '“I am an employee of the company at Metter, Ga., and was with Mr. Dugas when he inspected this engine there. At the time . . it was operating and pulling the entire load of the town of Metter, and had been pulling and lighting the entire town. It had been running in Metter for months before he took it, and stayed in operating condition. . . Mr. Dugas came and inspected the engine himself, and was thoroughly satisfied with it, and made arrangements for a man to load the equipment. I saw the engine last time when it was dismantled and on the freight-car to be shipped to Mr. Dugas, and at that time and the time he inspected it it was worth $3500 at least.” W. B. Harris, sworn for the plaintiff, testified: that he was assistant treasurer of the Georgia Power Company; that Dugas Corporation had only paid Georgia Power Company $75 during the entire time it had said machine^, and that the last payment of $25 was made July 2, 1928; that after Dxrgas Corporation defaulted in its payments for rentals, witness made demand upon it for the property, and this demand was refused; that said demand was made in May, 1929, before suit was brought; and that G. C. Dugas told us that we would never get the engine.” Graham Dugas, sworn for the defendant, testified: that he was president of the Dugas Corporation and negotiated with the power company through its representative, Mr. Hammond, for the purchase of said machinery; that the engine was not serviceable until Dugas Corporation had spent about $900 on it—that not till then could it be used for the purposes intended, and that even then it would run only inter
There being evidence in this case to show: (1) title to the property in the plaintiff; (2-) a conversion by the defendant; and (3) the value of the property, the case was made out so far as the general grounds of the motion for a new trial are concerned, unless there be merit in some one or more of the defenses interposed by the defendant. See Pryor v. Brady, 115 Ga. 848, 850 (42 S. E. 222); Hudson v. Gunn, 20 Ga. App. 95 (1 b) (92 S. E. 546). In the first place, in our opinion, the jury were clearly warranted in finding against the plea of fraud. In the second place, we are of the opinion that the jury were warranted in finding that the defendant had defaulted in the payment of the rentals stipulated for in the contract. Therefore we hold that the action was not prematurely brought. Neither do we think that there is merit in the contention (see paragraph 4 of the first amendment to the answer) that the plaintiff was not entitled to elect to take a money judg
The first special ground of the motion for a new trial is this: “Because, during the argument of the case by the plaintiffs counsel in conclusion, the defendant’s attorney tendered back to plaintiff the property involved in this case for the purpose of mitigating the damages, and plaintiff refused the tender, and the verdict for damages is excessive.” We think the tender was too late, and hold that this ground is without merit. See, in this connection, Civil Code (1910), § 4494, which has reference to tender.
The gist of the second special ground is that the court erred in charging the jury that if the value of the property in question was expressed in a contract between the parties, that would prima facie be the value of the property. The charge gave the jury a rule of law that has been thoroughly accredited by the appellate courts of this State. See Securities Trust Co. v. Marshall, supra.
The evidence supports the verdict, except as herein indicated. Plaintiff elected to take a damage verdict for the value of the property, with interest thereon. The jury rendered the following verdict: '“We, the jury, find a verdict for plaintiff in the sum of $2,000 principal, with interest of $128.26.” The court entered a judgment thereon for the lump sum'of $2,128.26, with costs of court. Under numerous decisions of the appellate courts of this State, the verdict should have been for a lump sum, and not for “principal” and interest separately. Therefore, under the decision of Drury v. Holmes, 145 Ga. 558, “it is adjudged that tlie verdict and judgment be set aside and a new trial be granted, unless within twenty days after the remittitur from this court shall be made the judgment of the court below the plaintiff shall write off from the verdict the amoiint allowed as interest. Should the plain
Judgment reversed, with direction.