16 Ga. App. 255 | Ga. Ct. App. | 1915
When this case was formerly here for review (9 Ga. App. 484, 71 S. E. 806), the judgment of the lower court was reversed because a verdict was directed in favor of the plaintiff for the full amount of the purchase-price of the buggy, as fixed in the original contract between him and Maddox, the original purchaser, although there was evidence that at the time the property was converted by the defendant (who purchased from Maddox), it was worth much less than that stun. This court said that where a seller retains title as security for his purchase-money, or where one otherwise holds title to personal property as security, and brings trover to recover the property, the amount of the indebtedness remaining due at the time of the trial fixes the maximum of his recovery;
The record of the trial now under review shows that the witness Wood was the only witness who gave any evidence whatever as to the value of any buggy, and he testified as follows on this point: “I suppose that the buggy was worth between $65 and $70. I say the buggy that Mr. Maddox had.” And also “I saw it [at Maddox’s father’s] in November. . . During the time from November up to Christmas that buggy was worth $65 or $70.” Confining ourselves, for the present, merely to the question as to proof of value, it appears that according to the “estimate” of this witness, the buggy he testified about was worth “between” $65 and $70, or was worth either $65 “or” $70; so that no definite and fixed estimate as to value was made by this witness; but, according to his testimony, the jury would not have been constrained to find that the buggy was worth the highest amount he estimated it to be worth, to wit, $70, but could have found that it was worth $65 only, or some amount between $65 and $70. Since more than one verdict could have been found in favor of the plaintiff under this testimony, the court erred in directing a verdict for the highest estimate placed on the property by the witness. If the verdict directed had been for the lowest amount shown by this (the sole) witness, the defendant would have had no cause for complaint on this point. If it were otherwise possible to sustain the verdict returned by direction of the court, we could remove all injurious consequences which may have resulted to the defendant from this error, by directing that the judgment be reduced from $70 to $65 principal, and that the proper amount be also written off from the amount of the interest recovered against the defendant; but for other causes, not in our power to remove, the verdict must be set aside.
It was insisted that the evidence failed to show that Elder, the
As stated above, the only witness who fixed any valuation whatever upon any buggy was the witness Wood, and his testimony did not identify the buggy which he asserted was worth “between $65 and $70,” or “$65 or $70,” as being the particular buggy sued for, as he simply testified that this was the value of “the buggy that Mr. Maddox had,” which he had seen at “Maddox’s father’s” in November. Wood further testified, that he saw a buggy with a hole in the back of the top at Maddox’s and “it was a black painted buggy as well as I remember, but whether there were stripes I don’t know, I can not tell the color of the running gear or wheels. . I saw a buggy in Mr. Elder’s possession that had the same kind of hole in the top.” The witness further testified,, that Maddox said he “let the buggy go between December and Christmas,” and some time after that he saw a buggy that “resembled” the Maddox buggy in the possession of Elder; that the Maddox buggy had a hole in • the top, and the one in the possession of Elder had the same kind of a hole; that he saw Elder “down here in Jefferson one day,” but could not swear it was .the same buggy that Elder then had; “all I go by is the hole in the back of it.” He could not tell the color of
It is possible that from this evidence a jury might have determined that the buggy which the witness Wood testified he had seen in the possession of Maddox, or at the house of Maddox’s father, and which he said was worth $65 or $70, was the identical buggy he afterwards saw Elder in possession of, but even them it would be impossible to say that the buggy referred to by Wood, or the buggy that Wood saw Elder in possession of in the town of Jefferson, was the buggy which Elder admitted to the witness Garner he had obtained from Maddox, or, in other words, was the “one red running-gear rubber-tire buggy” obtained by Elder from Maddox. From the testimony we may conclude that Elder, on December 23, 1909, was in possession of the particular buggy which he obtained from Maddox, and which the plaintiff sold to Maddox, but what the value of that buggy may have been on December 23, when, so far as the testimony discloses, the conversion was made by Elder, the evidence does not disclose. Wood testified that a certain buggy which Maddox once owned, and which in every particular resembled the buggy afterwards seen in the possession of Elder, was worth from $65 to $70, but whether this buggy was the buggy sued for and the buggy which Elder admitted he obtained from Maddox, it is impossible to say with certainty, though we may have a strong suspicion that the two were identical. So it will be seen that there was no proof from any source whatever as to the value of the buggy sued for, and which Elder admitted he disposed of on December 23 in Athens, since' the buggy shown to be worth- $65 or $70 was not, under the testimony, necessarily that buggy. The court therefore was not authorized to direct a verdict.
It is urged by the defendant in error that because each party in the court below moved the court to direct a verdict, the plaintiff in error is- estopped from complaining that the judge directed, the verdict against him, since he himself “volunteered to take the case from the jury, so to speak, and requested the court to direct a verdict.” While there have been decisions elsewhere which support that view (Sundling v. Willey, 19 S. D. 293, 103 N. W. 38, 9 Ann. Cas. 644; McComb v. Baskerville, 20 S. D. 353, 106 N. W. 300), it appears to be settled in Georgia that where both parties move the direction of a verdict, the party against whom the verdict