22 Ga. App. 608 | Ga. Ct. App. | 1918
A majority of the court is of the opinion that since the suit is not against the original purchaser but against a third -party, and
4. This suit is one in trover for an automobile, brought by J. S. Shingler Jr. and J. R. Brown, doing business under the firm name of Shingler Auto Company, against Dave Gamble. The plaintiffs’ claim of title, as set up in the petition, is based on a purchase-money note retaining title to the automobile, given by W. R. Fisk and Jesse Fisk to the Shingler Auto Company, a copy of the note, being attached to the petition. The plaintiffs offered in evidence a note signed by W. R. Fisk and Jesse Fish, payable to “Shingler & McKenzie Hardware Co., a corporation under Georgia laws.” The note otherwise was substantially the same as that attached to the petition. The court, over the objection of the defendant,' admitted the note in evidence. This we think was error. There was no evidence of any transfer or assignment in writing of the note from the “Shingler & McKenzie Hardware Co., a corporation,” to the Shingler Auto Company, and no evidence that it was, by a .clerical mistake, inadvertently made to the Hardware Company. The only evidence on this point is testimony simply that “the
Since there is to be another trial, it is not necessary to pass upon the . special -ground of the motion, that there was no evidence to identify the property described as being in the possession of the defendant. Neither is it necessary to pass upon the alleged error in the admission of testimony as set out in the 4th special ground of the motion, as, if erroneous, it will not likely occur on the next trial; See, in this connection, Swann Davis Co. v. Stanton, supra.
Judgment reversed.