27 Ga. App. 71 | Ga. Ct. App. | 1921
Lead Opinion
(After stating the foregoing facts.) In our judgment the court did not err in dismissing the affidavit of il
■The general rule of law laid down in the Reggie case is sound and not open to criticism. The reason for it is obvious. The value of the property sued for in trover may have decreased or increased, and the plaintiff in the trover proceedings has the right to elect whether he will take back the property itself or recover its value. And where he elects to take the property itself, and does take it, he is estopped from thereafter claiming any of ita purchase-price that may remain unpaid. He is bound by his election. However, as has been said, this rule of law is not applicable to the facts of this case. Here the vendee obtained a valuable automobile and used it for many months without paying one cent for it, or for its hire, and refused to allow the vendor to take possession of it for the purpose stipulated in the contract of sale, and only returned it to the vendor after the trover suit was filed. All of this occurred months before the hearing on the trover suit, and upon that hearing the only issue involved was which party should pay the costs of the suit, and that issue depended solely upon the question whether or not the plaintiff had made a timely demand for the property; and the awarding of the property to the plaintiff by the jury was immaterial and uncalled for, and was properly treated as surplusage, in the judgment of the court, and does not affect the merits of the case.
The plaintiff in this case did only what he had a right to do under the provisions of the contract of sale signed by the defend
Judgment affirmed.
Dissenting Opinion
dissenting. I cannot concur in the conclusion reached by the majority. The plaintiff had the right to elect his remedy, and, when he elected to sue in trover, there was, immediately upon the institution of the trover proceeding, a rescission of the contract as a whole; and, in my judgment, this is true notwithstanding the contract of sale contained a provision that if the note given for the purchase-price of the property is not paid at maturity, the vendor is authorized to repossess himself of the property.