38 Ga. App. 788 | Ga. Ct. App. | 1928
Ellis Motor Company brought suit against E. J. Hancock in the municipal court of Macon. After judgment in favor of the defendant, the plaintiff carried the case by certiorari to the superior court. The exceptions in this court are to a judgment of the superior court overruling the certiorari.
The following were the facts: Ellis Motor Company sold an automobile to one Green and retained the title until payment of
While the vendor of personalty who has retained the title thereto to secure the payment of the purchase-money has a right, in the event of injury to the property, to maintain an action for the tort, provided the damages claimed do not exceed the balance of the purchase-price, the conditional vendee, where he is in legal possession of the property under the conditional-sale contract, may sue for the entire damage to the property, holding the recovery, if there be any, for the use and benefit of himself' and of the holder of the legal title, according to their respective interests in the property. Since, under the facts as they appear in this case, Green, in the absence of a settlement, could have sued for the entire damage to the property, he necessarily had the power to make a fair settlement of the claim with the tort-feasor. It follows, that the settlement between him and the defendant Hancock was a good defense as against the suit of Ellis Motor Company, the conditional vendor. See, in this connection, Louisville & Nashville R. Co. v. Dickson, 158 Ga. 303 (123 S. E. 12); Staten v. General Exchange Ins. Corp., 38 Ga. App. 415 (144 S. E. 53); Hinson
There might arise some question of abatement if both the vendor and the vendee in a conditional sale should attempt to sue, but no such question is presented in the present case.
Judgment, affirmed.