1. “Where the title of a plaintiff in a trover suit is held by him as security for purchase-money or other debt, and he elects to takе a money verdict, he is entitled to recover either the highest value of the property between the date of thе conversion and the date of the trial, or the value of the property at the date of the conversion, with interest thereon, subject, however, to the condition that under neither choice can he recover more than the amount of the debt for which the property stands as security.” Elder v. Woodruff Hardware &c. Co., 9 Ga. App. 484 (
2. Where one sells to another personal рroperty, under a retention-of-title contract, for a fixed sum, which the seller agrees to accept in installments of $2 per week, the contract is executed as to the seller; and the failure of the purchaser to pay somе of the agreed installments when due, or the further fact that the seller, on more than one occasion and without any еxpress agreement to modify the original contract, or additional consideration moving him to do so, accepts from the purchaser several payments of $1 only, would not be such a departure from the terms of the contract as to necessitate notice from the vendor tо the vendee of the intention of the former to rely upon the exact terms of the original contract relating to payments (Civil Code, § 4227). as a condition precedent to the bringing of a suit in trover to recover the property.
(a) Espeсially is this true, where, as in this case, the undisputed evidence shows that the entire balance of the purchase-price was lоng past due before the suit was filed, even had the defendant paid at the rate of $1 per week only until the debt was satisfiеd. According to the verdict, $34 was still unpaid, and this amount was long past due (either at the rate of $1 or $2 per week) before the suit was brought—more than three years after the making of the contract.
3.. The failure of the judge of the municipal court of Atlanta, sitting without a jury, to allow the defendant certain credits about which there was a conflict in the evidence is not proper subject for complaint in this court, since the trial jrtdge had the privilege of accepting as true that еvidence which most commended itself to his approval.
4. In a trover suit an election to take a money judgment for thе value of the property sued for may be made by the plaintiff at any time during the progress of the trial and before the case is submitted to the jury, or (where tried without the intervention of a jury) prior to the rendition of a judgment by the presiding judge.
5. The purpose of a demand in a trover suit is to furnish evidence of a conversion. “The action of trover being founded on a concurrent right of property and possession, any act of the defendant which negatives or is inconsistent with such right amounts in law to a conversion.” Roper Grocery Co. v. Faver, 8 Ga. App. 178 (
(a) The petition filed in this case explicitly alleged, in the first paragraрh, that the defendant was in possession of the property sued for, and the defendant in response thereto denied that he was in possession of the property (a ring), “for the reason that he had paid plaintiff in full for the ring;” and in the second paragraph the plaintiff alleged that the defendant refused to deliver the property to him or to pay him the prоfits thereof; and to this the defendant replied as follows: “In answer to paragraph 2 of petition, this defendant had a right tо refuse to deliver the ring described in the petition, for the reason that he did not have any ring belonging to the plaintiff, as he hаd paid plaintiff in full for the ring.” Measured by the rule laid down in section 5637 of the Civil Code, as to the effect of an evasive answer where knowledge must necessarily be presumed, this answer might fairly be construed to mean not only that the defendant had refused to deliver the ring in response to a demand (since he could not “refuse” until a demand was made), but also that the defendant did have a ring, and in fact the particular ring suеd for, but to this ring he asserted title adverse to that of the plaintiff, for the alleged reason that he had paid the plaintiff in full therefor; and under the rule in Maxwell v. Harrison, supra, that possession with a claim of title adverse to that of the true owner is sufficient to show conversion, this claim of title on the part of the defendant would dispense with proof of demand, and would suffice to show a legal conversion. Judgment affirmed.