Williams Wagon Works v. Small & Sons

19 Ga. App. 600 | Ga. Ct. App. | 1917

Broyles, P. J.

1. The main issue on the trial of this case seemed to be whether the mare in question was “white” or “iron gray” when she was sold under the conditional bill of sale, and the determination by the learned trial judge that she was iron gray will not be disturbed, there being ample evidence to support his finding. It seems, from the evidence in the record, that the same horse may be “iron gray” in winter and “flea bitten” or “white” by the following spring. One witness testified: “I would call an iron-gray horse a horse that had already started to turn white.” In our opinion, the description of the mare in the bill of sale, to wit, “an iron gray mare seven years old,” was legally sufficient. First National Bank v. Spicer, 10 Ga. App. 503 (73 S. E. 753); Beaty v. Sears, 132 Ga. 516 (64 S. E. 321); Nichols v. Hampton, 46 Ga. 253; Farkas v. Duncan, 94 Ga. 27 (20 S. E. 267).

2. Estoppels are not favored by the law, and they must be clearly established. When it is sought to estop the principal by the conduct of an agent it must be affirmatively shown that the agent was acting within the scope of his authority. Keystone Lubricating Co. v. Farmers Oil & Fertilizer. Co., 15 Ga. App. 107 (82 S. E. 665); Collins v. Crews, 3 Ga. App. 238 (4) (59 S. E. 727); Hamilton v. Georgia Railroad, 78 Ga. 328; Camp v. Southern Banking & Trust Co., 97 Ga. 582 (25 S. E. 362); Walton Guano Co. v. McCall, 111 Ga. 114 (36 S. E. 469). It is contended that the plaintiffs were estopped from bringing suit to recover the mare, because of the conduct of one Riley, a salesman of the plaintiffs. After the conditional sale by the plaintiffs to Rountree & Sons (which was never completed), and while Rountree had possession of the mare, R. A. Williams, who afterwards bought the animal from Rountree, asked Riley “if she was any good.” Williams testified: “He told me tó buy her, she was a good horse, and to buy her. He did not say a word about A. T. Small & Sons having a claim on it. . . I did not make an examination of the records.” Riley’s testimony shows that he was employed by the plaintiffs and that he had sold, the mare in question to Rountree. There was no evidence to show the scope of Riley’s duties or authority. He did not sell the animal to Williams for Rountree, but Williams bought directly from Bountree. The conversation between Biley and Williams appears to have been solely upon the question of the worth or value of the property. Biley made no representations whatever to Williams as to the plaintiffs’ claim on it, did not purport to be acting for the plaintiffs when he advised Williams to buy it, and no authority for him to act for the plaintiffs was shown. Furthermore, the evidence fails to show that Biley knew that the original purchase-money note of Bountree & Co. had not been paid, or that he • was aware that Williams did not know of the conditional sale to Bountree & Co., the bill of sale having been duly recorded in the office of the clerk of the superior court of Bibb county. Nor is there any evidence to negative the idea that Biley, even if he knew that the purchase-money note of Bountree & Co. had not been paid, supposed that Williams would take up the note when, he purchased the property. Under such circumstances we do not think that the plaintiffs are estopped by Biley’s conversation with Williams.

3. It is contended by the plaintiff in error that the judgment should be reversed upon the purely technical point that the evidence did not affirmatively show that the makers of the title-reservation note resided in Bibb county, where the note was duly recorded in the office of the clerk of the superior court. In order for the reservation of title to be good as against third persons, the vendee being a resident of this State, it is essential that the contract be recorded in the county in which the vendee resides at the time of the execution of the contract. Civil Code of 1910, §§ 3318, 3319, 3259; Pickard v. Garrett, 141 Ga. 831 (82 S. E. 251). There is no contention, nor even the slightest intimation, that as a matter of fact Bountree & Sons, the vendees, did not reside in Bibb county, or that the animal in question was at any time after its purchase in Bibb county carried out of that county. The contract on its face showed that it was executed in Bibb county; the note was payable at a bank in Macon, and the contract was recorded in Bibb county; the record shows that the witnesses (upon the trial in the city court of Macon) referred to Bountree & Sons’ place of business as being “down on Third street,” and a fair inference from the evidence, and the only inference .that could legitimately arise, is that Bountree & Sons resided in Bibb county; and the trial judge, also a resident of Bibb county, sitting by consent without the intervention of a jury, was authorized so to find. If this question had been an issue under the pleadings in the case, or if there were any real doubt as to whether the contract had been recorded in the county where the vendees resided, our ruling would be otherwise, and we would hold, as in the cases cited by the plaintiff in error, that the fact that the instrument was so recorded must be affirmatively shown by direct evidence.

4. The other assignments of error, not being referred to in the brief of counsel for the plaintiff in error, are treated as aban-, doned. The finding of the judge was amply supported by evidence, no error of law appears, and the overruling of the motion for a new trial was not error.

Judgment affirmed.

JenJcins and Bloodworth, JJ., concur.