60 Ga. App. 145 | Ga. Ct. App. | 1939
The defendant, Shipp, purchased a Buick automobile, paying $274 in cash, and the seller, Hall, accepting a Chevrolet automobile as the equivalent of a payment of $275. The defendant signed a note and a retention-of-title contract for the balance, which was later transferred by the dealer to the General
The judge charged the jury, in part, as follows: "If, in this ease you find that that is the contract [the conditional-sale contract in question] between these parties, that they agreed to that contract, then I charge you, gentlemen, in this ease, that the only legal verdict that can be rendered in this ease would be a verdict for the plaintiff and against the defendant for the property in controversy, because, gentlemen, it appears in this case, without contradiction, that the value of the automobile is of a less value than the balance due under the terms of the contract. So, if you should find in this case that that is the contract between these parties, the only legal verdict that you could render in the case would be a verdict for the plaintiff and against the defendant for property in controversy.” Counsel for the defendant in error contends that the court did not err in so charging, and cites the case of Harrison v. Central Georgia Automotive Co., 31 Ga. App. 603 (121 S. E. 689), as authority for this contention. It should be noted that in the Hmrison case the plaintiff in the trover suit sought to recover a
The court seems to have tried the instant case upon a theory different from that invoked and set up in the defendant’s answer, and in the above-stated excerpt charged the jury in a manner not adjusted to the issues made by the pleadings and the evidence, and in so charging committed reversible error. Small v. Tidwell, 142 Ga. 496 (83 S. E. 126).
We come now to the question raised in the cross-bill of exceptions. The plaintiff tendered an amendment to its petition, alleging that the conditional-sale contract provided that on default by the defendant purchaser the plaintiff might repossess this car, sell it, and apply the proceeds of the sale on the balance due, accounting to the purchaser for any of the proceeds of such sale over and above this figure (the balance due); that the defendant refused to surrender his car for sale under this provision of their contract; that the plaintiff then sought to foreclose, and the defendant unlawfully hid and concealed said automobile with the intention of preventing a levy of said execution by the marshal of the municipal court of Atlanta. The plaintiff further alleged that “ under these circumstances the plaintiff was forced to either abandon its claim or force surrender of the property by a bail-trover. The plaintiff therefore filed an action of bail-trover reciting, however, that it was brought, not to assert a general title, but solely for sale under the provision of the contract, quoted above,” and '“that the defendant was thereby estopped to contend that the plaintiff had revoked his contract by bringing trover, because the defendant had intentionally forced the plaintiff to bring trover by unlawful conduct knowingly done for that very purpose.” This amendment was disallowed, and it is this ruling which is the subject of the plaintiff’s cross-bill of exceptions. The plaintiff was not entitled to prosecute its trover action for the purpose of taking possession of the property and selling it under the terms of the contract. The Supreme Court, in General Motors Acceptance Corporation v. Coggins, 178 Ga. 643, supra, so held, and overruled that line of decisions by the Court of Appeals which held to the contrary. The contentions in the cross-bill are not meritorious; for when the seller elected to proceed by trover and elected to take the property under such a proceeding, it could not prescribe or achieve
Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill.