91 Ga. App. 823 | Ga. Ct. App. | 1955
In addition to denying the material allegations of the petition, the defendants for further plea and answer alleged: “Said property has been in the possession of the defendants since the 21st day of February, 1953, defendants having paid plaintiffs the sum of three hundred forty-five ($345) dollars upon the purchase price of said property, which consists of one (1) lineograph type-setting machine, model number three, No. 964 with six (6) magazines, mats and border slides; said machinery having been represented to defendants prior to the delivery of same to the defendants by plaintiffs, as being in excellent condition and as being fit for use in the defendants’ printing business. Said property, after receipt of same by defendants, was discovered by the defendants to be absolutely unfit and unsuitable for any use whatsoever in the printing business; said machinery having been in miserable condition, without adequate parts, and said machinery being obsolete, no longer manufactured, and parts for same are absolutely unobtainable, all of which have been made known on [sic] the plaintiffs by defendants. Defendants have heretofore offered to return said property to plaintiffs, which offer has been refused by the plaintiffs and plaintiffs have
Where property is delivered under a conditional-sale contract, and the seller retains the title as security for the purchase money, the purchaser’s default in the payment of the purchase money alone will not constitute a conversion of the property. Carter v. Spiegel, May, Stern Co., 45 Ga. App. 754 (5) (166 S. E. 34). The defendants at the first term disclaimed title to the property, tendered the property and tendered hire. The defendants’ answer set up facts showing that there had been no conversion of the .property. The plaintiffs admitted that no demand had ever been made for the property. The evidence otherwise failed to show a conversion.
Under the facts of this case, the plaintiffs had no election of verdicts but were restricted to a verdict for the property plus hire. Trammel v. Mallory, 115 Ga. 748 (42 S. E. 62). However,
Under the pleadings and evidence of this case and the ruling in Trammell v. Mallory, supra, the sole issue was the reasonableness of the amount of hire tendered, and the judge erred in not restricting his consideration to that issue, and erred in denying the motion for a new trial.
Judgment reversed.