Miller v. First National Bank

35 Ga. App. 334 | Ga. Ct. App. | 1926

Jenkins, P. J.

Section 4368 (3) of the Civil Code (1910) provides that “the construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be .looked to in arriving at the construction of any part.” Section 4266 of the Civil Code (1910) provides that “the cardinal rule of construction is to ascertain the intention of the parties. If the intention be clear, and it' contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.” In the instant case it is unmistakably clear that the intention of both Malone and Mrs. Miller was that her debt should be secured by a title to the automobile in question; and that the paper in question was executed by Malone in response to her offer to take title to the machine. While it is true that the record does not show that actual delivery of the machine was made by Malone to Mrs. Miller, or that any independent bill of sale was executed by him to her, the language of the written instrument signed by Malone is such as conclusively to import that title had actually passed, and would thereafter remain in the payee of the note until the debt described therein had been fully satisfied. This being true, the lien of the judgment creditor upon the equity of redemption could only be reached by paying off the amount owing on the note, as provided by section 6038 of the Civil Code (1910). It is a pure question' of law as to 'whether the title to the automobile was or was not in the claimant under her conditional-sale note. The case is controlled by the ruling of this court in Brooks v. Folds, 33 Ga. App. 409 (126 S. E. 554). The only other case we have been able to find which appears directly to bear upon the point is an Indiana case, Cable Co. v. McElhoe, reported in 108 N. E. 790, which supports the previous ruling of this court as now adhered to. The third division of the syllabus in that case is as follows: “A buyer of a piano on credit gave a chattel mortgage to secure the price, subject to the condition that the piano should not be removed. The buyer desired to remove the piano to another state, and, after negotiations, a conditional contract of sale reserving title in the seller until the price was paid was entered into. Held, that the contract was the equivalent of a repurchase of the piano by the seller, and a resale thereof to the buyer, reserving title in the seller until the price was paid, and the transaction so construed was valid if made in good faith.” We think the reasoning in the Broolcs case and in the Indiana case is sound, and that in the instant case the signing by Malone of the conditional-sale contract was the equivalent of or necessarily imported a contemporaneous conveyance of the automobile by him to the person from whom he unmistakably assumed to purchase it.

Judgment reversed.

Slepliens and Bell, JJ., concur.