23 S.E.2d 179 | Ga. Ct. App. | 1942
Under the facts of this case the court, acting without the intervention of a jury, did not err in finding that a recorded bill of sale giving the motor number of a Ford coach automobile as 1802424528 did not put an innocent purchaser upon constructive notice that a Ford coach automobile having the motor number "18-2424528" was the same automobile covered by the bill of sale.
The record discloses that, on April 5, 1938, Clyde Odom and Mrs. Sis Odom executed a bill of sale conveying to the plaintiff, besides other personal property, "1 Ford coach, motor No. 1802424528 . . being in our possession at 766 Jefferson St., N.W.., in the City of Atlanta, said State and county." This bill of sale was given to secure the payment of $300, payable in thirty equal *430 monthly installments of $10 each, "on the 5th day of each month hereafter." It was executed in Fulton County, Georgia, and duly recorded in said county on April 8, 1938. On February 10, 1940, Clyde Odom executed to plaintiff a bill of sale to secure the payment of $140, payable in twenty-eight monthly installments of $5 each, "on the 10th day of each month hereafter." Besides the other personal property described in the first bill of sale, this instrument conveyed "1 Ford coach, motor 18-2424528 . . being in our possession at 1064 Kirkwood Ave., S.E., in the City of Atlanta, said State and county." This bill of sale was headed "Georgia, Fulton County," and was duly recorded in said county on March 15, 1940. In regard to this last instrument, R. L. Gore, sworn as a witness for the plaintiff, testified: "The purpose . . in taking this second bill of sale was reducing the payment on his [Odom's] account. . . This bill of sale shows $140. He was due the company that much at the time this second bill of sale was taken. As to whether it was an extension, it was purely and simply to reduce his payments after he said he was not able to carry the size of the payments of the former account." According to the great preponderance of the evidence Clyde Odom, on or about February 9, 1939, traded to the defendant the automobile conveyed by the first bill of sale to the plaintiff.
James L. Vaughan, an appraiser for the plaintiff, testified in part: "The motor number appears on that bill of sale. The motor number on there is 2424528. As to why I left this 180 off of the front of it, that 180 has nothing to do with the motor number of the car. . . As to whether our instrument shows the motor number as being 1802424528, probably it does, but the motor number of the car is 2424528." A. H. Tuck, sworn as a witness for the plaintiff, testified in part as follows: "I am employed by Ernest G. Beaudry. . . I am familiar with an automobile transaction pertaining to a Ford two-door automobile, motor number 2424528. . . We got that automobile from the Terminal Used Car Exchange [N.E.. Maddox]. . . The motor number of the car that my records show was taken in was 2424528. Looking at the description of the automobile in the bill of sale which you show me, I could not testify that that is the same automobile, because the motor number of this car shown in here is 1802424528. However, there is no such motor number as that on the Ford automobile. *431 As to what the 180 on there indicates, 18 would indicate the model number of the automobile. I deal in Ford cars almost exclusively. . . The correct motor number on that particular car would be 18-2424528. There is no such motor number as 1802424528 on a Ford automobile. They have not got that high."
N.E. Maddox, called by the plaintiff for cross-examination, testified in part as follows: "I was engaged in the used car business in February, 1939. I had some dealings with Clyde Odom. . . I have the motor number on the car that I took from Clyde Odom. The motor number is 2624528. That is the one I . . traded to Beaudry. The motor number was 2624528. It was not 2424528. I don't know how many cars Clyde Odom had at that time. That is the only one I know of. I trade a good deal with him. . . I traded the car I got from him to Beaudry Motor Company for a new car. . . I did not know that the Master Loan Service had a bill of sale or something on this automobile. I did not send some one down to the clerk's office to examine the records . . of these transactions, but Mr. Howard, I think, went down after you all claimed that you had a loan on it. . . I did not have just the one transaction with Odom. I think I have sold him three or four cars. . . I don't know whether I handled this car here, the C. T. Layton transaction, with that motor 2424528 or not. . . Terminal Used Car Exchange is a trade-name under which I do business individually."
R. L. Gore testified in part as follows: "I am employed by the Master Loan Service in the capacity of manager. I know Clyde Odom. I am familiar with the transactions he had with the company. . . I know he had two. . . I handled the transaction evidenced by the bill of sale . . dated April 5, 1938. He borrowed $300 at that time. . . Subsequent to the taking of that bill of sale, without cancelling that bill of sale, we took another bill dated February 10, 1940. The purpose . . in taking that second bill of sale was reducing the payment on his account. . . The bill of sale shows $140. . . I do not know what happened to that automobile. . ." N.E. Maddox, recalled by the plaintiff for further cross-examination, testified in part as follows: "I have had a good deal of dealings with Ford cars. As to what that 18 in front of the motor number on a Ford car means, well, *432 that is the model, that is all. As to whether that is the motor number, well, it is supposed to be in there. That is what they put it in there for. It is 18-. The controlling numbers are those beyond the dash. . . That 18 is the model and then the other numbers are the motor number. I am familiar with that. Disregarding the 18, which I say is the model number, as to what the motor number would be — most of them have got seven figures . . not counting the 18. . . As to whether that has got seven figures irrespective of the first ones — that has got ten there. [Apparently referring to the figures 1802424528 found in the first bill of sale]. The motor number on that would be 2424528. As to whether that has seven numbers — I have got 2624528. That is the only 1936 Ford I remember getting from Odom. I don't recall whether I examined the records to see if there was anything against this car when I took it from Odom or not. I don't usually do it. I had been selling him cars for ten years and I had never had nothing to go bad like this before. . . So far as the record showing, there could have still been a 18- in front of this 18024 and the rest of those numbers. . . I did not know anything about any loan or anything being against it. . ."
The attorneys for both parties argue the case in their briefs on the theory that the controlling question is one of constructive notice. While we have not set out all of the evidence in the case we think enough of it has been stated to illustrate the main issue involved. The headnote ofPinson-Brunson Motor Co. v. Bank of Danielsville,
The second headnote in Shearer v. Housch,
In the instant case the distinctive part of the description of the automobile was its motor number. The bill of sale of April 5, 1938, the record of which was relied on to put innocent purchasers on constructive notice of the plaintiff's claim of title to the automobile in question, gives the motor number of the car as 1802424528, whereas the correct motor number was 2424528, the 18 preceding that number being the model number. In this situation, we can not say that the court, in passing upon the case without the intervention of a jury, erred in concluding that the most distinctive part of the description of the automobile in question was the motor number, given as 1802424528, and that the description was insufficient to put the defendant upon constructive notice that an automobile described as having a motor numbered "18-2424528" was the same automobile described in the bill of sale as bearing the motor number 1802424528.
In an interesting and instructive discussion of the requisite particularity of description of personal property in mortgages to bind subsequent innocent mortgagees with constructive notice, the Supreme Court, in Thomas Furniture Co. v. T. C. FurnitureCo.,
Judgment affirmed. MacIntyre and Gardner, JJ., concur.