101 Ga. App. 593 | Ga. Ct. App. | 1960
Lead Opinion
At common law it is clear that one entrusting the possession of tangible personal property to another does not by this alone grant authority in the one given possession to transfer good title to a bona fide purchaser for value or to in any way mortgage, pledge, or encumber the property. First Nat. Bank of Macon v. Charles Nelson & Co., 38 Ga. 391, 399 (95 Am. Dec. 400). It is also well established that, although authority to sell may be given in addition to possession and thus .enable one engaged in retail sales to transfer a good title to a bona fide purchaser for value in a normal retail sales transaction, yet this would not of itself enable such retailer to pledge, mortgage or in any way encumber the property as against the original owner. First Nat. Bank of Macon v. Charles Nelson & Co., 38 Ga. 391.
As the petition alleges that the defendant delivered the car and the keys to the used car dealer, and in so' doing only gave him authority to obtain bids from the public to buy the car, it does not state a cause of action, nor is a cause of action stated when all of the allegations in this petition are considered.
The order of the City Court of Floyd County sustaining the general demurrer to the petition is
Affirmed.
Rehearing
On Motion roe Reheaeing.
The plaintiff in error, both in his brief first filed in this court and in his motion for a rehearing, relies heavily on the ruling in Dealers Discount Corp. v. Trammell, 98 Ga. App. 748 (106 S. E. 2d 850), which case in turn was based on that of Dollner, Potter & Co. v. Williams, 29 Ga. 743. Neither of these cases is material or pertinent here for the reason that each treats with the well-known and accepted sales law doctrine of retention of possession by the seller. The situation in the instant case does not concern, even remotely, this doctrine. Furthermore, the Trammell case shows creditable evidence that the owner of the car told the agent of the discount company at the used car lot, while the car was thereon, that the car in question belonged to the used car dealer. This in itself is sufficient for a basis of an estoppel against the owner to assert his rights in the car as against one
Motion for rehearing denied.