188 Ga. 639 | Ga. | 1939
Mrs. Marie Johnson brought suit seeking to enjoin J. B. Hinson from exercising a power of sale contained in a security deed executed by her in his favor. She alleged two grounds: first, that she executed the deed as security for the debt of her husband, John Johnson, and for that reason the deed was void under the Code, § 53-503; and second, that the note to secure which the deed was given had been paid in full. She sought also to recover alleged overpayments. The defendant answered, denying the material allegations of the petition, and by way of cross-action sought to recover an alleged balance due on the indebtedness. On the evidence submitted at the trial the jury rendered a verdict in favor of the defendant for the amount that was claimed to be due on the indebtedness, thus finding against the plaintiff on both issues. She complains of the overruling of her motion for new trial. By cross-bill of exceptions Hinson assigns error on the overruling of his demurrers to the petition.
It appears from the evidence that in March and June, 1935, John Johnson, husband of the plaintiff, purchased from the defendant a tractor and certain other farm implements to be used by him in cultivating land belonging to Mrs. Johnson, which is the land covered by the security deed. By written agreement the defendant retained title to the property until full payment of the purchase-price. Johnson defaulted in the payment of the notes, and on September 18, 1935, he executed what is denominated a “repossession agreement” whereby he relinquished all right, title, and interest in and to said property, in consideration of a credit for the balance due thereon under the conditional-sale agreement. On the same date Mrs. Johnson executed an instrument reciting her purchase of the same-'property, and purchase-money notes wherein she
The court charged the jury, in part, as follows: “Upon the other hand, gentlemen of the jury, if you find that she bought this property, this property was surrendered to the International Harvester Company by Mr. Johnson, and then she afterwards purchased this property from Mr. Hinson or the International Harvester Company, and gave her note therefor, then, gentlemen, and it was an original undertaking by her, then, gentlemen of the jury, she would be liable, and whatever amount you find to be due upon the note you should render a verdict against her for that amount.” Exception is taken to this charge, on the ground that the judge should have instructed the jury that before they could render a verdict against Mrs. Johnson they should find that Mrs. Johnson actually surrendered the property to the defendant, and that the defendant actually delivered the property to Mrs. Johnson, instead of, as was done in the above-quoted charge, merely requiring them to find that' Mr. Johnson surrendered the property and that Mrs. Johnson purchased it. To better illustrate the assignment of error we quote therefrom: “Movant contends, in view of the fact that the plaintiff, Mrs. Johnson, in her pleadings contended that the consideration of the notes which she gave Mr. Hinson failed, because the farm machinery alleged to have been sold to her for said notes had never been delivered to her, which contention was amply supported by evidence and with no evidence to the contrary, the failure on the part of the court to charge the jury to find against Mrs. Johnson, without first finding that the consideration had not failed and that the machinery had been delivered to her, was error.” In
“Generally, the delivery of goods is essential to the perfection of a sale. The intention of the parties to a contract may dispense therewith; delivery need not be actual; constructive delivery may be inferred from facts.” Code, § 96-107; Allen v. Hollis, 31 Ga. 143; Perdue v. Griffin, 32 Ga. App. 100 (122 S. E. 713); Nolley v. Elliott, 50 Ga. App. 382 (178 S. E. 309). Conceding, for the purpose of considering this assignment, that the transaction between Mrs. Johnson and the defendant was in fact a bona fide original undertaking on her part, it seems clear that it would have been error for the judge to instruct the jury that in order for them to find a verdict against her they should find that the defendant had actually taken possession of the property from Mr. Johnson and then had actually delivered it to Mrs. Johnson. It is manifest that the parties did not so contemplate. When Mr. Johnson executed to the defendant an instrument relinquishing all his right, title, and interest in and to the property, and Mrs. Johnson thereafter purchased the property while it was still in the actual possession of her husband on her farm, where it had been used and where it was manifestly intended to be thereafter used, the sale was complete without any manual retaking of the property from Mr. Johnson and actual delivery to Mrs. Johnson. Mrs. Johnson did not testify that it was agreed or contemplated that the property was to be delivered to her at any other place. It seems clear that she became the equitable owner of the propert]'-, and entitled to its possession and control, the actual legal title remaining in the defendant until payment of the purchase-price; and accordingly she was bound by her agreement of purchase, as against the contention that she received no consideration for the reason that the property Avas not actually delivered to her.
“A consideration is essential to a contract which the law will enforce. An executory contract, without such consideration, is called nudum pactum or a naked promise.” Code, § 20-301. “A consideration is valid if any benefit accrues to him who makes the promise, or any injury to him who receives the promise.” § 20-302. The agreement set up by the plaintiff was made after the execution of the note and security deed on February 12, 1937. It appears that Mr. Johnson requested the defendant to return the collateral notes to him, and that, upon the defendant making the promise as
The evidence supported the verdict. Hull v. Sullivan, 63 Ga. 126; Villa Rica Lumber Co. v. Paratain, 92 Ga. 370 (17 S. E. 340); Freeman v. Coleman, 86 Ga. 590 (12 S. E. 1064); Boland v. Klink, 63 Ga. 447; Simmons v. International Harvester Co., 22 Ga. App. 358 (96 S. E. 9); Bateman v. Cherokee Fertilizer Co., 21 Ga. App. 158 (93 S. E. 1021); Stubbs v. Pinholster, 58 Ga. App. 863 (200 S. E. 511). The judge did not err in overruling the motion for new trial.