*1 аppraisers, judgment to a the amount awarded to consent judgment, the widow verdict both caveators and consented previously administrator, judgment had not who it was suing preclude case, him stranger, from appeared assigning exceptions thereon. error a bill of this court out exceptions Accordingly, filed bill motion to dismiss the must be writ error is sustainеd and the defendants error Carlisle, J., Gardner, P.J., concur. Dismissed. 11, 1954. Decided March plain- Blackshear, Jr., M. H. Blackshear, & Haas, Holland in error. tiff Smith, Jr., Alex I. A. Bingel, &
Smith, Doremus W. Field, Williams, & contra. Johnson Blanch, Phillips, 34902. PADGETT COLLINS. 1954.
Decided March *4 in Anderson & error. Trapnell, George Smith, Lane, H. contra. Williams & set out somewhat has been Quilrian, J. testimony only because it consists detail be determined, and it is all material sole issue to granting a nonsuit. It is erred whether or not the trial court may a cause that, petition not set out though even well settled every at proves charged, fact without action, if the by establishing right to recover disproving the same time is not undisputed which show that he facts existence of other award a proper to nonsuit. Clark verdict, to a it is not entitled *5 17). E. Bandy, 2d Conversely, where the plaintiff every proves, at charged, fact but the same time estab- undisputed lishes other which facts show that he not entitled verdict, to a proper it is to award nonsuit. a* Rountree Sea- Ry. board Air Line Co., 31 Ga. plaintiff conclusively evidence of shows that, for a
period up approximately time until prior of four months to the involved, agent transaction here Martin pur- Vance was his chase sell In gave and automobiles. he this connection checks, signed two leaving in blank, date, and payee, amount to be in. filled He sent Martin South Leesville, Carolina, agent where purchased an his automobile with one of these Subsequently checks. and about four months beforе trans- involved, discharged action here agent, Martin as his and unequivocally testified that at time of this transaction Martin agent, neglected not his but he recover from him the other check signed in blank. Martin Valdosta, took this check to Georgia, plaintiff where the had not him, and, sent after the ter- mination of the agency, purchased there the autоmobile which is subject litigation matter of this from Iiewett Auto Auction, it on sold behalf E. of Tampa, of J. Mims Florida. Fol- lowing this transaction, plaintiff received, as his first notice thereof, a bill of sale for the automobile through the mail. In- accepting stead of thereby ratifying and the transaction, Padgett immediately stop attempted payment on the check, and thereby repudiated the having transaction. The check al- ready cleared, he then contacted the seller procured another bill sale, signed of blank which the check given by Martin was shown as consideration of transaction.
In
order for the
recover,
evidence must show a
property by
sale of the
Mims,
through
owner,
Auto
Hеwitt
Auction,
plaintiff.
latter,
party
if
transaction
at all,
capacity
principal
was such in his
of
of his agent, Vance
unequivocally
Martin. He testified
that Martin
agent
was not his
had
been for over
prior
four months
to this
Still,
sale.
thought might
arise
to whether the
pur-
after Martin’s
chase
funds,
of the car with his
ratified this
If
act.
possession
in this trover action has title
the automo-
bile in
question,
face of the
that Martin was not
testimo^^
car,
authority
purchasing
acting by
agent or
his
act.
the unauthorized
ratification of
by virtue of
right must arise
it.
party asserting'
is on the
proving a
ratification
The burden
*6
211).
(4d) (10
It is well
E.
DeVaughn
Code 96-101 follows: “Three as § thing to An of the sold. tial a contract of sale: identification 1. of agreement paid. 2. 3. Consent the price An as the to be to parties.” The identification as to such sale as was consummated of the first re- thing the sold well established satisfaction of is quirement. price well in satisfaction thereof was established requirement, there requirement. As to the third of the second In parties a valid for these was consent of the sale. order Padgett, the latter parties be the Mims and the vendee to vendor by agent an to act in his represented must have been authorized ratified the contrаct at a time when such behalf, he must intervening rights per- did affect the third ratification not is laid son, here. Insofar as the case on the the defendant Collins, by plaintiff represented agent an with that the proposition proved authority buy case as laid. Insofar car, to is not proposition plaintiff that the ratified acts it laid as on testimony behalf, to of the purported in his Martin who act signed by a check him plaintiff presented to the effect that Martin made a bill thereon payment of the car received of sale out present jury question is sufficient to to whether or purporting plain- not to act However, tiff. in order to establish case theory, as laid this plaintiff go step must further and show thаt he rati- one fied the transaction at such time and in such not manner as intervening rights third-party affect of the defendant. In this respect of the In place, evidence fails. the first Pad- gett refused to accept by the bill sale first him, by received undertaking stop payment on the check repudiated the trans- action. ratify His carry later effort fails it аlso with showing that he did this at a time and in manner affecting intervening rights previously of the defendant. As pointed out, plaintiff’s this is essential element of the case as upon proof the burden of rested him to establish. No property through agent sale an authorized is shown evidence. The sale *7 shown the theory the on that he ratified an unauthorized act of а person purporting to act in his behalf fails to show -that such ratification came about at a time and in a manner so as not to intervening rights affect the of the defendant. In a trover action, prima case, to establish facie plaintiff the must show title or right possession the in himself. Jones v. 34 McCowen, Ga. App. (131 801 S. E. Griffin, App. Perdue v. Ga. 32 100 (122 713). plaintiff posses- here was in never actual that, of the and property, upon theory sion based his action the legal lie held the title. upon The burden was him therefore legal a valid against show title defendant, as the and under such might equitable circumstances the fact he by that having paid purchase money reason of the would not be sufficient. Southern Discount Co. v. Elliott, App. E. 2d legal To show such title in himself, necessary it was for prove him to he pur- ratified the unauthorized act of his agent prior ported purchase by property of the defend- ant, who was an innocent third party, because, so, unless he did his act would original purchase not relate back to Martin’s so as title in to vest the himself. This he and do, accordingly failed to prove failed to his case as laid. The evidence question without a finding authorizes that the equitable had legal here an the automobile. The plaintiff principle, Recognizing this Martin. title, vested in however, was Newman, relies James cites and under the 581) right to recover authority for his S. E. 2d case at are evidence in That case bar similar this case. in case here as factually, legal upon occupying his
recover is based status bene- ficiary implied plaintiff’s In trust. James case hus- purchased funds, band an automobile with her took title to init possession in of a name, finally party his left it third keep opinion by Judge Parker, him. in an written court, for This plaintiff was, held that the in the rеlated, circumstances entitled in property brought against recover the a trover suit the per- possession plaintiff’s son whose into husband had delivered it. In the instant case is true that Vance Martin did, without au- thority purchase or permission, plaintiff’s the automobile with the just did, plaintiff’s check. He as did husband in the James case, hold the in automobile trust for рlaintiff.
could have instituted a trover
against
action
him any person
holding the
automobile
benefit. But, just
stage
at that
this
depart
case and the James case
widely
from each other
in
pattern
factual
that each is controlled by
principles of
distinct
departure
law. The
lies
the fact that
the James case the
property remаined in the control of the trustee and
held for
defendant,
his benefit
while in the instant
case
chattel
question
sold
for value
the trustee to a bona
pur-
fide
knowledge
chaser
had
plaintiff’s
who
no
or notice of the
equitable?
that,
title.
It will here
observed
purchases
be
when one
property
with another’s
funds,
immediately
latter
vested, not with
*8
legal
bеneficiary
the
but
title,
as
of a constructive trust with
equitable
title
property.
Code 108-110. While this
§
equitable
held
can,
as
in the James case, be
asserted
against
trover
the trustee
holding
or those
the property
him,
for
against
it cannot be asserted
one who, like the
here,
defendant
occupies
position
purchaser
the
of a bona fidе
of the property for
equitable
and without
value
notice of the
title of a beneficiary of
108-416;
Code
a trust.
Parker v.
Savings
Barnesville
Bank,
§
365);
I do not the from Martin obtained to automobile purchaser the estopped deny the to law, matter of or that was as a the used Martin title. When the check left purchaser’s except plaintiff’s blank the possession sрaces were all plaintiff’s put in the check maker. auctioneer’s name was signature as name payee’s when the The evidence does not show payee. as that it deliv auctioneer knew in, filled or whether-the was was space payee for the left blank. Whether Martin with the ered to spaces knew the the before the аuctioneer filled in blanks Martin put fact that the name was auctioneer’s blank, were is the facts to be considered deter payee one of check agent purporting to act as for the mining Martin whether authority course,-1 did not plaintiff. Of realize whether, purporting Was question but so 'act. act, he. .ratify could acts. Since check wаs, principal he his If re made to the auctioneer Martin was even out money purchasing it, I think that quired indorse belonged acting plaintiff. auctioneer, automobile procured evidently thought so because it owner, bill sale ordinarily The owner plaintiff. would not from owner to people different same two bills sale two execute agreе I do not evidence shows that automobile. only It that he repudiated act of Martin. shows repudiate if did it at he first, Even could still intended.
779 ratify prior Wood unless relied on his renunciation. Collins (37 16 338; Neely v. v. W. Va. 625 Harlow, Jones, ward 28 Vt. (68 Iowa 794); Am. R. 99 681 N. Cuthbert, Warder &c. Co. 917); Super. 643; Sloan v. 20 Pa. Andrews v. Aetna Johnson, W. (2d 596; Mechem, Agency, Life Ins. 92 N. Law of Co., Y. The p. ed.) 79, 2 468. I 1, 489, p. 359; Agency, Vol. C. think J., § § pur that the ratified acts of Martin if Martin was porting to act place, for him. If ratification took the title passed plaintiff, the car and to to the he would be entitled to recover it from received it from whoever Martin. The acts equivalent forgery Martin were check. If a forgery to certainly purchase be ratified, can here be. could Southеrn Federal &c. Assn. v. Firemen’s App. &c. 72 666 Assn., 663, (34 674); E. 2d Groover v. Savannah Bank & Trust 60 Co., (3 App. 745). agree 357 2d I S. E. do Martin got legal equitable title and title, and that rights third person prevent of an innocent intervened to plaintiff’s might ratification. This have been the result if Maiv secretly plaintiff’s bought tin had used money had legal automobile as an Under individual. the facts the passed immediately plaintiff, subject to his re pudiate purporting the transaction if Martin agent. to act as purchaser by anything The from Martin was not misled plaintiff did, and the would estopped not be to claim property. question legal sole is: who had the purchaser only automobile? The from Martin relied on Martin’s possession, shows; far negligence as the mere putting of an owner in рersonal property possession in the given dispose so that is the opportunity another of it is not estop So far purchaser sufficient owner. as the from Martin concerned, Singer guilty Sewing is all the of. S; (116 Co. Wardlaw, App. (1) Mach. 29 Ga. 626 E. 207); App. (3) Consolidated Co. v. Bank, 113, Citizens 32 Ga. (193 732); S. E. Hendley, App. Guthrie v. 56 Ga. Burpee 80); v. Athens Production Credit 65 Ga. Assn., S. E. 2d Citizens Bank v. Mullis, Ga. 371 (131 S. E. purchaser from is not Martin shown bought relied belief that the automobile indi vidually purporting agent not while act.as *10 inno rights two of relative of question There is no
plaintiff. the reason that innocent for plaintiff was not parties. The cent The evidence it to Martin. check and delivered signed a he blank innocent Martin was an from purchaser that the not show does that impossible prove he was. be fact, In would purchaser. making in without an bought property lie, or either they, inquiry; and if they, made he, or Martin’s title quiry as to Martin was have revealed that it would inquiry made, had been question which of is, The real the owner of automobile. not on negligent prevail? happens The be parties should law two 114 ruling Williams, Graham v. in plaintiff. of the side rights third question of the intervention of on the 716, Ga. evidence because there was no of inter First, is parties, obiter. judgment was based on vening second, because and rights, justified grant a nonsuit. ruling completely of which another ruling Buggy Wood, App. 477, Dalton Co. 7 does in v. in ruling case, case that support majority this because not intervening rights being considering the as not discussion of even (and legal rаtification), of was a there no evidence obiter by operation the liens attached applicable because principle was ratification would have been law, any attempt and at a self- of serving operation of law would have been cir by act which the v. 152 E. also Coleman, 645), Evans 101 Ga. S. cumvented. agree intervening rights created law. I a lien that involved persons may preclude ratification, innocent third sometimes of only my opinion, automatically by obtains result, but principle prevent There another which will operation of law. is interfering intervening rights with the of third ratification from against principal. Operation of estoppel and is persons, that case preclude did not ratification this Martin did because law property therefore could not transfer it. have title to the not showing estopped. There is no evidence Martin the automobile is evidence that sold There no before purchase, any its even if such would make ratified I do concede. Even if Martin difference, sold the аuto purchase there ratified, is no evidence that mobile before his Martin had been a for the purchaser knew that salesman apparent au might have relied Martin’s so that principles Code 96-207. thority to under the There is no sell § had reason transferee or Martin’s that the auctioneer buying it the automobile got believe as an individual. an without passes personalty
A written bill
sale
(Ellis
App.
Rudeseal, 56 Ga.
personalty
v.
delivery of
actual
E.
Nolley
382,
554;
50 Ga.
210,
Elliott,
192 S. E.
and the
made out
Burney
(3));
2d may аrisen in Any presumption title favor pos- by possession—assuming his mere defendant reason of plaintiff proved proved—vanished had been when session acceptance acts by showing ratification of Martin’s impliedly If Martin did war- the automobile. of bill sale to purported of his sale to rant in the automobile reason warranty would not have the effect of vest- defendant, did otherwise defendant title which he have. ing in the