54 S.E.2d 650 | Ga. Ct. App. | 1949
Lead Opinion
1. (a) Where the owner of an automobile, under an agreement of sale, sells the automobile and it is unconditionally delivered to such purchaser, together with an unconditional written bill of sale, and the seller accepts a check for the purchase-price, and such purchaser sells the automobile for a valuable consideration to a third person, who has no notice of the giving of the check, the title of the original owner is divested or he is estopped from asserting his title against the innocent third party, although the check is unpaid and returned as worthless. Blount v. Bainbridge,
(b) Where in such a case the innocent purchaser resells the automobile to the original purchaser (from whom the innocent purchaser purchased) under a conditional-sale contract, and delivers possession of the automobile under such contract, or where the automobile is delivered to the original purchaser under a lease agreement between him and the innocent purchaser, and thereafter the original seller takes possession of the car and resells it, the original seller is, among other actions, subject to an action of trover for conversion of the automobile, and the innocent purchaser is entitled to recover the automobile or damages as he may elect. Haas Howell v. Godby,
(c) "Where a petition alleges ownership of property in the plaintiff, a conversion of it by the defendant . . and a measure of damages peculiarly appropriate to a trover case, the case will be construed as an action of trover." Alexander v. Dean,
2. The instrument attached to and made a part of the petition, and referred to in count 1 as a conditional-sale contract and in count 2 as a lease agreement, shows upon its face that it is a lease agreement, the automobile reverting to the plaintiff at the end of the term; and *796 the court did not err in striking upon special demurrer the references to it in count 1 as a conditional-sale contract.
(b, c) Subdivisions b and c of headnote 1 require no further discussion than to say that the pleader here stated a cause of action in trover (White v. Dalton,
2. Headnote 2 is self-explanatory.
For the foregoing reasons, the court erred in sustaining the general demurrers to counts 1 and 2 and in dismissing the petition, though it was not error to sustain the special demurrers to count 1, as pointed out in headnote 2.
Judgment reversed. Gardner and Townsend, JJ., concur.
Addendum
The second contention of the defendants in such motion is that the petition is subject to general demurrer, in that it is fatally defective because it nowhere alleges the value of the automobile at the time of the conversion or at any other time.
"The pleader does not characterize his action. He simply sets forth facts upon which he relies for a recovery; and if these facts are such as in law entitle the plaintiff to recover, it is not necessary that the action should be . . classified by any name." McNorrill v. Daniel,
Denied. Gardner and Townsend, JJ., concur.