81 Ga. App. 374 | Ga. Ct. App. | 1950
R. J. Forsyth brought a bail-trover suit in Fulton Civil Court against South Side Motors Incorporated to recover a 1949 Ford club coupe automobile. The case was tried before a jury, and the evidence adduced at the trial was substantially as follows: R. J. Forsyth, the plaintiff, had title to the automobile, involved, and brought it from Alabama to Columbus, Georgia, on April 7, 1949, for the purpose of selling it at an automobile auction, and while in Columbus he sold the automobile to a person who represented that he was Donald Burgess and an agent for the Burgess Motor Company of Montgomery, Alabama. In payment for the automobile this person gave Forsyth a check for $1675 drawn on the First National Bank of Montgomery, Alabama, the same being payable to Forsyth and bearing the signature of Donald Burgess. Burgess and Forsyth signed a written and printed agreement, which is dated April 7, 1949, containing recitals to the effect that Burgess had purchased the automobile from Forsyth, and showing the price as $1675. The instrument does not show how the price would be paid or was paid. It contains the following provisions:
The jury returned a verdict for the plaintiff for the automobile and hire, the defendant moved for a new trial, and the trial judge overruled the motion, to which judgment the defendant excepted. The motion consists of the general grounds and ten special grounds.
In special ground 1 of the motion error is assigned on the following excerpt from the charge: “Gentlemen, there are two issues that you have to determine in this case. First, you have to determine whether or not Mr. Forsyth sold or delivered this car to a man named Burgess who later turned out to be the same as a Mr. DeLay who was connected with the defendant automobile company. If in your deliberations you should determine that the person representing himself to be named Burgess was, in fact, the same as DeLay, who was an agent for the South Side Motor Company, the defendant in this case, that would end your deliberations and you would immediately return a verdict for the plaintiff since it is admitted by all the evidence that Mr. DeLay is an agent of the South Side Motor Company, and if you should determine that Burgess and DeLay are one and the same person as is charged by the plaintiff in this case, that would end your deliberations and you would find a verdict for the plaintiff.” In special ground 3 of the motion error is assigned on the following part of the charge: “Gentlemen, briefly, the issue under all the law that I have given you now is two-fold and I will go back over it since the charge
Special ground 2 of the motion is an assignment of error on the following part of the charge of the court: “In this case it is alleged that there was a reservation of the title when Mr. Forsyth, the plaintiff, delivered the car to Mr. Burgess in Columbus, that he reserved the title under the terms of the agreement until such check or note or other evidence of indebtedness had actually been paid. And I charge you that this reservation embraced in a written contract would prevail over the claim of one acquiring the property if the person who received the property had actual notice of the reservation even though the contract was not recorded.” The defendant contends that the statement contained in the written contract was not sufficient to put the defendant on notiee of any reservation of title, unless it also knew that a note or check had been given in payment and had not been satisfied, and that the above charge excluded this defense, but in making this contention the defendant overlooks the fact that in connection with this part of the charge the judge also said: “Before the jury would be authorized to find for the plaintiff, the jury must believe not only that the check given by Burgess to Forsyth was not good but also that the agent for the defendant . . had actual notice not only that a check had been given in payment of the car but also that the check was, in fact, no good. If you believe from the evidence that at the time Mr. Burgess sold the car to the South Side Motor Company he told them that he had to sell it for $1550 or some less sum than he had paid and that his document showed that he had paid—if he at that time told them that he had to sell this car to get the money to get to the bank before the check got to the bank, that would be such notice to the South Side Motor Company as would put them on notice that a check had been given and that it had not been paid and that that portion of the contract which said the title would remain in the seller would be binding upon them. On the other hand, if you do not believe that such a statement was made or that the South Side Motor Company had any knowledge that a check had been passed or that, if a check had been passed, it had not been paid, then it would not be such notice as to inform them that the car had
Special ground 4 of the motion is based on the admission in evidence, over objection, of the following testimony of the plaintiff: “The price was to hg»ve been $1675 which he [Burgess] gave me a check for, and was supposed to be full payment after I cashed the check.” Special ground 5 of the motion is based on the allowance in evidence, over objection, testimony by the plaintiff as to what transpired when he took the check to the bank on which it was drawn, in Montgomery, Alabama, and presented it for payment. Among other things this testimony shows that the plaintiff personally presented the check to the bank for payment, and that payment was refused. Special ground 6 of the motion is based on the admission in evidence, over objection, of testimony by the plaintiff to the effect that he saw someone at the bank place a stamp mark and certain lettering on the back of the check. Special ground 7 of the motion is based on the overruling of an objection by counsel for the defendant to certain questions propounded to the plaintiff on direct examination. The colloquy which took place is as follows: “Q. I think you stated to me a few minutes ago, Mr. Forsyth, I believe, that Mr. Cawthon told you that Burgess had said to him he had given a check for the car. Mr. Sheats: I object to that as leading, as putting that
Special ground 8 of the motion is based on the admission in evidence of testimony by the plaintiff, over objection by the defendant on the ground that the testimony was a self-serving declaration of the plaintiff. This ground of the motion is incomplete in that the testimony is not shown therein, either literally or in substance, or by reference to any exhibit attached to the motion for a new trial. A special ground of a motion for a new trial should be complete within itself so that the court can properly understand the nature of the error complained of, and a ground for a new trial based on the admission or exclusion of evidence should contain a statement of such evidence, either literally or in substance, or the evidence should be attached to the motion for a new trial as an exhibit, and properly identified in the ground of the motion by some reference thereto, so that it can be considered in connection with the ground of the motion. This ground of the motion is incomplete and presents nothing for consideration as to the trial judge’s ruling.
The case was presented to the jury under two possible theories of recovery for the plaintiff. One of these theories was that if Burgess and DeLay were one and the same person, the purchase by the defendant, through its authorized agent,
The trial judge did not err in overruling, the motion for a new trial.
Judgment affirmed.