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Lawskills.com Georgia Caselaw
MCENTYRE v. BURNS et al.
32713.
Trover; from Cobb Superior Court-- Judge Brooke. July 18, 1949. (Application to Supreme Court for certiorari.)
MACINTYRE, P. J.
1. The due filing for record of a valid title-retention contract,properly describing an automobile and stating the motor number, affords good constructive notice of the instrument to a subsequent purchaser of the automobile, even though the motor number of the automobile may be erroneously recorded or not recorded at all.
2. Since the evidence showed that the parties to the present litigation were claiming under a common grantor, it was not necessary to show title in such common grantor.
3. There being evidence on behalf of the plaintiffs that the automobile sued for was of the market value of $1900 at the time of its conversion, and the only other evidence as to value being from the defendant who admitted that the market value was $1875 at such time, and, the plaintiffs having elected to take a money verdict for the value of the car at the time of the conversion, plus interest at 7 percent per annum, and having a claim of only $1650 against the car, to which amount they were limited in recovery, the direction of a verdict for $1702.14, the amount of such claim plus interest, being less than the amount the defendant admitted the car to be worth at the time of conversion, the verdict was not harmful to the defendant as to the amount and he can not complain in that respect.
4. The evidence showing conclusively that the automobile in the possession of the defendant was the identical one to which the plaintiffs held title, the fact that in the trover action the petition referred to the motor number as DAA409521 and the evidence showed it to be DAAA09521 would not require a reversal of the judgment on the theory that the case was not proved as laid, since the defect, if any, was amendable and was cured by the verdict and judgment.
5. The evidence showed conclusively the domicile and residence of the persons, who purchased the car in question from a dealer in Gainesville, Georgia, while they were temporarily sojourning in Hiawassee, Towns County, Georgia, to be in College Park, Clayton County, Georgia, and accordingly the title-retention contract executed by such purchasers to the seller, together with the transfer or assignment of the instrument to the plaintiffs was properly filed for record in the office of the clerk of the Superior Court of Clayton County, Georgia.
Hubert M. Burns and Minnie J. Burns, doing business as Motor Finance Company, brought an action of trover in the Superior Court of Cobb County, Georgia, on September 24, 1948, against Bob McEntyre to recover one 1946 Chevrolet Tudor sedan, motor No. DAA409521, license plate 12,978 E. S. Georgia, of the value of $1650, to which the plaintiffs claimed title.
The defendant filed an answer, denying that he was in possession of the described automobile, but setting up that he was in possession of one "1946 Chevrolet Tudor sedan, motor No. DAA-409521, license plate 12,878 E. S.," which had not been demanded of him, that he purchased the said car in good faith and paid the full value thereof to the seller, and had no notice, knowledge or information of any kind that anyone had any right, title or interest therein except the person from whom he bought.
Upon the hearing, the plaintiffs elected to take a money verdict for the value of the automobile as of September 24, 1948, with interest thereon at 7 percent per annum.
The evidence may be sufficiently stated as follows:
Hubert M. Burns Jr. testified: "I am the son of the plaintiffs in this case . . . I am familiar with the automobile which is the subject of litigation in this case. The business of the Motor Finance Company is the financing of automobiles, and we discount automobile paper from dealers. This car in question was a blue '46 Aerial Chevrolet, sedan. My company took a paper on that car from C. V. Nalley at Gainesville. He had sold it to Mr. and Mrs. Brownagle. I note a conditional-sales contract which you exhibit to me dated July 6, 1948, signed by Mrs. Irene Brownagle and Mr. Brownagle and payable to C. V. Nalley. That is the conditional-sales contract under which that car was sold by Nalley & Company to Mr. and Mrs. Brownagle, and our company purchased the contract from C. V. Nalley & Company. I also note the conditional-sales contract describing the same car and signed by the same parties, showing a transfer to the Motor Finance Company. This was also executed on the car and was recorded. This is also signed Mr. and Mrs. Brownagle. I also note the assignment slip or note executed on July 6, 1948, to C. V. Nalley & Company by Mr. and Mrs. Brownagle, and I will state that this is a part of the same transaction. Under the original contract which we purchased from C. V. Nalley & Company the car sold for the sum of $1700, payable in instalments of $150 each, and I will state that none of those instalments had been paid when our company purchased this paper from C. V. Nalley & Company. I believe the first instalment was met by the purchaser and that was paid to Motor Finance Company, but when the second instalment became due it was not paid. Then we undertook to locate Mr. Brownagle and the automobile. We located Mr. Brownagle in Clayton County, and we didn't find the car that night, but we located it the next day. It was at East Point, Georgia, in the possession of Mr. McEntyre, the defendant in this case . . . I told Mr. McEntyre that I had a contract against the automobile and I demanded the car, and he said he would not turn it over to me. I saw the car at that time, and it was the same car on which we had bought the paper from Nalley & Company.
I asked him for it twice . . . I am familiar with the market value on automobiles, and I was familiar with such values in July of 1948 and in September, 1948. I have been in this automobile business about fifteen years. In my opinion this 1946 Chevrolet sedan in July, 1948, had a market value of $2195, and that on September 24th and 25th, 1948, it had a market value of $1900. This automobile was in excellent condition at the time we bought this paper from Nalley & Company . . . Our company had $1640 in the car. That was September 24, 1948. We are electing to take a money verdict in this case and asking interest on that amount from the date of the trover action . . . The car was worth $1650 and I also swear it was worth $1900, but, as I said, the $1650 was enough to cover our note . . . I was present when Brownagle bought this car from C. V. Nalley . . . I don't know now what that motor number is, but I knew the number at the time we drew these papers. I raised the hood on that automobile to see this number. I checked it myself. That car is worth $500 or $300 or $100; any amount from $1900 down that car is worth it . . . In this case we wanted what was due us, and that was the reason we made the bond $1650 . . . By placing this valuation at $1650 we enabled the defendant to give a smaller bond."
Mrs. C. J. Brownagle testified: " 'My husband and I purchased this car from the C. V. Nalley Company in July, 1948. I reside 601 Washington Street, College Park, Clayton County, Georgia. I was living there in July of 1948, and in September of 1948. C. J. Brownagle also lived in Clayton County in July of 1948 and in September of 1948. Mr. Brownagle and I bought this car jointly. He was a co-signer. [At this point the witness identified her signature and that of her husband, C. J. Brownagle, to the conditional-sales contract dated July 6, 1948, note for $1790 and transfer slip, all of which were in Connection with the purchase of the car from C. V. Nalley & Company.] . . . I did not know about the sale of the car at the time. I was out of town and out of the State . . . When I came back then I found out that he had sold the car to these people, that is, Mr. Brownagle had sold it to Mr. McEntyre, and Mr. Brownagle needed money. I first saw Mr. McEntyre personally in the office of Herbert Ringel in Atlanta, and Mr. Benson and Mr. McEntyre and Mr. Brownagle were present there. Mr. Ringel represented Mr. Brownagle as attorney. The conversation that took place there between Mr. McEntyre and me and these other gentlemen in Mr. McEntyre's presence was that they would give him a little bit of time. They had served Mr. Brownagle with some kind of claim, and they would give him time to raise the balance of the money that was short in the bank at that time. At that time my husband had given Mr. McEntyre a check. I note the check which you exhibit to me, dated October 7, 1948, for the sum of $1200 payable to cash and signed by C. J. Brownagle and endorsed by Robert McEntyre. That is the check my husband gave Mr. McEntyre. That represents a part of the money that Mr. Brownagle was paid for this car and that he paid to Mr. McEntyre . . . As to whether or not I remember how much more I gave him-well I gave him my two rings for $546, and I signed a note, a bill of sale or a mortgage note . . . and to secure that note I put up as a pledge or deposit my engagement and wedding ring. I see the entry on the note there, 'Paid, December 2, 1948,' signed by A. J. Benson. That is the date on which this note was paid. Mr. Brownagle has paid McEntyre and Benson the sum of $1746.50 as repayment to them of the money they put in the car, and they were to pay the Motor Finance Company the balance due them and keep the car. I called Mr. McEntyre and had a conversation recently over the telephone . . . I had heard his voice before and I recognized it over the telephone as his voice. I asked him what he had done about the finance company and told him they were asking me to finish paying them off, and he said he had the car and he said he had my funds, and he declined to return the car and said he would see what the outcome of this case was . . . I last saw this car the day we turned the check over to them for $1200, and we rode from East Point to West End in it. That was October 7, 1948. Mr. McEntyre and Mr. Benson were in possession of it then. That was the same car we bought from Mr. C. V. Nalley in Gainesville . . . We did travel around the country
P. J. Dixon testified by deposition: "I reside in Jonesboro, Georgia, and am clerk of the Superior Court of Clayton County, Georgia. I was clerk of that court during the year 1948 . . . I note the paper you exhibit to me, purporting to be the record slip of a conditional-sales contract executed on July 6, 1948, by Mrs. Irene J. Brownagle and C. J. Brownagle to C. V. Nalley & Company of Gainesville, Georgia, and I will state that record slip was received in my office for record on the 8th day of July, 1948, and it was filed in the filing docket for mortgages in my office on the 8th day of July, 1948, at 8 o'clock a.m. The instrument described there was recorded in my office at page 312 of the mortgage book number 30 on July 17, 1948 . . . I do have in my office a list of the voters of Clayton County made out for the year 1948, and the name of Mrs. Irene Jane Brownagle appears thereon in Oak District 1446 G. M."
Fred W. Cooper testified by deposition: As Executive Vice-President of the Bank of Fulton County, he made a loan of $720 to C. J. Brownagle on August 24, 1948, secured by a bill of sale on a 1946 Tudor Chevrolet Fleetline sedan, motor No. DAA-409521, evidenced by twelve notes, dated August 24, 1948, due monthly in the sum of $60 each, bearing interest from maturity, maturing beginning September 1, 1948. Brownagle paid the first note and the balance was charged to his account and the notes were marked paid. Someone, McEntyre or Benson or someone representing them, called to inquire about this& second mortgage and learned that it had been paid off. The witness identified the bill of sale executed by Brownagle to secure the loan of $720 and covering the aforementioned car.
Bob McEntyre testified: "On or about September 21, 1948, I had a transaction with Mr. C. J. Brownagle. That was at the Atlanta Automobile Auction in Atlanta, Georgia. I buy and sell cars, and I was down at this automobile auction and bought in this car from Mr. Brownagle for $1775, and I bought the car clear. He said there wasn't anything on the car, and I gave him my check for it. That is the check you have there that I gave him in payment of the car. I had no knowledge or notice that there was any outstanding claim against it at the time I bought it. The check here was charged to my bank account. They got the money on it. The first time I heard of anyone claiming the title to this car was approximately two or three days after I bought it, and I found out then the car had two mortgages on it. I bought that automobile in good faith. I thought there wasn't anything against it; and that was what I was supposed to buy . . . After this trover proceeding was brought I made a trip down to Jonesboro. As to whether or not we found anything against this automobile there we found the record where it was recorded down there, but the motor number isn't correct on it. That had another motor number. This here is the correct motor number, which is DAA409521. I didn't know anything about this until after I paid my money for it and the check was paid . . . At that time I didn't look at any records of any kind anywhere. I simply accepted his word that it was free of mortgages . . . Then I did on the next day, on the 25th, go down to the Bank of Fulton County at East Point the next day after I purchased the car. They told me there that they had a mortgage on this car, and that they had deducted the amount of their mortgage from my check which Mr. Brownagle had deposited in there. I learned about the mortgage of the Motor Finance Company that same day that I was down at the bank. I didn't get in touch with the Motor Finance Company then, but Mr. Burns was there at the bank when I got there and he told me about his mortgage. That was before I had ever gone down to the courthouse in Clayton County . . . Mr. Burns asked me there for the car. He asked me to give him a check or give him the car and I refused to do either one. It was after the bank had told me it had a mortgage and after Mr. Burns had told me that the Motor Finance Company had a mortgage that I went to the courthouse down in Clayton County, and I then found out what it showed the record to be. After that, I got in touch with Mr. and Mrs. Brownagle and I told them I wanted my money. Then I came over to see Mr. Ringel, and Mr. Benson was present there. They did not give me a check for the $1200 then, but they did later, and I don't remember the exact date. The day they gave me the check Mrs. Brownagle was there, and Mr. Benson was there, and they gave me a check at that time for $1200, and they gave me a note for $546 and put up two rings to secure that note. They later paid me that note. So I still have the $1200 and the $540, and I
App.] JANUARY TERM, 1950. 247 still have the automobile. I was paid my $1746 back, and I have got the automobile . . . As to whether or not I think I am entitled to keep both the money and the automobile--well, I just want to settle it. I am not entitled to keep both of them. I don't think I am. I didn't make this loan there of the $546. Harold Benson made that. I got the proceeds of it. I still wasn't given the money to reimburse me for the $1775. I still haven't been refunded all the money on this purchase-price. I know that the Motor Finance Company is only claiming $1640 plus interest on their note. These people here didn't pay me $1640, but they have paid me $1746. So I have got more money in my hands now that the Brownagles paid me than the Motor Finance Company is claiming."
Bob McEntyre, recalled, testified: "I testified that I paid $1775 for this automobile on September 21, 1948. As to whether I considered or not that that represented the fair market value of the car at that time--well, I figured I could probably make $100 on the car, and that it was worth $1875, and in my opinion three days later, on the 24th, the fair market value of that car at that time was $1875."
The following documentary evidence was introduced:
Certified copy of voters' registration record of Clayton County, Georgia, on which appeared the name of Mrs. Irene Jane Brownagle, registered February 19, 1948, with certain data as to her, including her oath as to citizenship in the said county and State.
Conditional-sales contract, signed by Mrs. Irene J. Brownagle and C. J. Brownagle, covering one Chevrolet Tudor automobile, motor No. DAA-409521, July 6, 1948, terms $800 cash and $1790 in 18 deferred payments, the same showing an assignment on the same date by the seller, C. V. Nalley & Company, Gainesville, Ga., to Motor Finance Company, Gainesville, Ga., together with an endorsement thereon as follows: "This instrument and assignment thereof were filed for record in the office of the clerk of the Superior Court of said county [Clayton County, the stated situs] on the 8th day of July, A. D. 1948, at 8 o'clock a. m. and recorded in Book '30' or mtges on page 312. [Signed] P. K. Dixon, Clerk Superior Court."
One promissory note for $1790, dated July 6, 1948, signed by Mrs. Irene J. Brownagle and C. J. Brownagle, payable to C. V. Nalley & Company, to be paid in stated instalments, commencing August 17, 1948, the note being given "covering instalments under conditional-sales contract of even date herewith for a motor vehicle, there being on the back thereof an endorsement "Without recourse pay to the order of Motor Finance Company, Gainesville, Ga.," signed by C. V. Nalley & Company.
Check, dated October 7, 1948, signed by C. J. Brownagle, payable to "Cash," in the amount of $1200, endorsed by Robert McEntyre, and marked paid on October 8, 1948.
One mortgage note for $546.50, dated October 7, 1948, payable on or before December 7, 1948, to H. A. Benson Or order, conveying certain described diamond rings as security, signed by Mrs. Irene J. Brownagle, and bearing a notation "Paid, Dec. 2, 1948, H. A. Benson."
Photostatic copy of bill of sale to Bank of Fulton County, dated August 24, 1948, to secure the payment of described notes totaling $720, signed by C. J. Brownagle, conveying one 1946 2 door Chevrolet Fleetline sedan, motor No. DAA 409521, marked paid on Sept. 24, 1948.
Note for $60, dated August 24, 1948, payable to Bank of Fulton County, signed by C. J. Brownagle, being one of a series of twelve notes, secured by the aforementioned bill of sale.
Photostatic copy of record in office of clerk of the Superior Court of Clayton County of retention-of-title note, signed by Mrs. Irene J. Brownagle and C. J. Brownagle in favor of C. V. Nalley & Company of Gainesville, Ga., dated July 6, 1948, for the purchase of one Chevrolet Tudor, motor No. DAA-Y) 9521, terms stated as $800 cash and $1790 in deferred payments.
Photostatic copy of record in office of clerk of the Superior Court of Clayton County of bill of sale to one 1946 2 door Chevrolet Fleetline sedan, motor No. DAA 409521, dated August 24, 1948, signed by C. J. Brownagle in favor of Bank of Fulton County, securing the payment of 12 notes of $60 each.
Check for $1775, signed by Robert McEntyre, payable to the order of C. J. Brownagle, dated September 21, 1948, endorsed by C. J.' Brownagle, and marked paid September 24, 1948.
Certified copy of record in office of clerk of the Superior Court of Clayton County, Georgia, of retention-of-title contract, whereby Mrs. Irene J. Brownagle and C. J. Brownagle purchased from C. Y. Nalley & Company of Gainesville, Ga. on July 6, 1948, one Chevrolet Tudor, motor No. DAA-Y) 9521, on tends of $800 cash and $1790 in deferred payments, filed July 8, 1948, 8 a.m., and recorded July 17, 1948.
Certificate of registration of Chevrolet Fleetline sedan, motor No. DAA 409521, 1946, in name of C. J. Brownagle, 710 Washington Street, College Park, Ga.
The court directed a verdict for $1702.14 and judgment was entered accordingly.
The defendant filed a motion for new trial on the general grounds and on the special grounds that the direction of the verdict was error because there were issues of fact which should have been submitted to the jury, that the verdict was not demanded for the plaintiffs and the evidence would have authorized a verdict for the defendant, and that the verdict for $1702.14 was not demanded for that amount and the evidence would have authorized the jury to find for a lesser amount. By amendment the movant added eight special grounds in elaboration of the original ground that the court erred in directing a verdict. The grounds as embraced by the motion for new trial as amended may be summarized as follows:
1. The title-retention contract was for a Chevrolet sedan, motor No. DAA-409521 but was recorded as for a Chevrolet sedan, motor No. DAA-Y)9521, and the defendant was an innocent purchaser for value.
2. It was not shown that C. V. Nalley & Company, the alleged common source of title, had title to the car.
3. The verdict was directed for $1702.14, and the plaintiffs' evidence showed the car to have a market value of $1900 at the time the suit was instituted.
4. The action was brought for the conversion of a Chevrolet sedan, motor No. DAA409521, and the evidence introduced by the plaintiffs showed the car as a Chevrolet sedan, motor No. DAA-409521, and, hence the case was not proved as laid.
5. It was not shown that the title-retention contract was filed for record in the proper county, since it was not shown that the purchasers were residing in Clayton County, Georgia, at the time the car was purchased from C. V. Nalley & Company while they were at Hiawassee in another county.
The Court overruled the motion for new trial, and the exception is to that judgment.
(After stating the foregoing facts.) 1. The first contention is that the defendant was an innocent purchaser for value, not being charged with any notice of the title-retention contract between Mr. and Mrs. Brownagle and C. V. Nalley & Company, transferred to the plaintiffs, in that the motor number of the Chevrolet sedan was shown on the record at DAA-Y) 9521 whereas the motor number of the Chevrolet car referred to in the title-retention contract was DAA-409521. The registration of the title-retention contract was governed by the laws relating to the registration of mortgages on personal property, except that it was required to be recorded within 30 days from its date. Code, 67-1403. The instrument shall be recorded in the county where the mortgagor resided at the time of its execution if he is a resident of this State. Code, 67-108. The contract here was filed for record in the office of the clerk of the Superior Court of Clayton County, Georgia, on July 8, 1948, and was recorded on July 17, 1948, but the motor number was incorrectly shown as DAA-Y) 9521. The defendant admitted that he was in possession of a Chevrolet sedan, motor number DAA-409521, but contended that the record just mentioned did not put him on notice as to that car. In support of this contention he cites and relies on the Code, 67-111 which provides as follows: "A mortgage recorded in an improper office or without due attestation or probate, or so defectively recorded as not to give notice to a prudent inquirer, shall not be held notice to subsequent bona fide purchasers or holders of younger liens. A mere formal mistake in the record shall not vitiate it." However, by the act of 1889 (Ga. L. 1889, p. 106), codified as Code, 67-2501, it was provided: "Deeds mortgages, and liens of all kinds, which are required by law to be recorded in the office of the clerk of the superior court, shall, as against the interests of third parties acting in good faith and without notice, who may have acquired a transfer or lien binding the same property, take effect only from the time they are filed for record in the clerk's office. The said clerk shall keep a docket for such filing, showing the day and hour thereof, which docket shall be open for examination and inspection as other records of his office." The obvious conflict between these two sections has been resolved in favor of 67-2501. In Buchanan v. Georgia Acceptance Co., 61 Ga. App. 476, 477 (6 S. E. 2d, 162), it was said: "Since the passage of the act of 1889, p. 106, Code, 67-2501, the owner and holder of a deed, mortgage, or conditional-sale contract (Code, 67-1403), and other liens required by law to be recorded in the office of the clerk of the superior court, has been protected by the filing of his paper with the Clerk of the Court, whose duly it was to record the filing on a public docket required for that purpose. Improper record, or no record at all, has no effect on the efficacy of the filing. Willie v. Hines-Yelton Lumber Co., 167 Ga. 883 (146 S. E. 901). It seems that Code, 67-111, which was in our Codes before 1889, was necessarily repealed in so far as it conflicted with the act of 1889, Code, 67-2501. The theory of the foregoing rule is that if any injury is done by a failure to record a paper, or by the improper recording of it, the clerk will be liable to the injured party for a breach of duty, and that the filing puts the world on notice as to the contents of papers filed for record, whether they are recorded or not." (Italics ours.) In Thomas v. Hudson, 190 Ga. 622, 626 (10 S. E. 2d, 396), after pointing out that the act of 1889, supra, contained the usual repealing clause, it was said: "Construing these two present Code sections, it must be said that, even though 'the act approved March 24, 1933 . . . adopting the present Code of Georgia, had the effect of enacting into one statute all of the sections of that Code,' the rule of construction obtains that 'where two sections of the Code are found to be in irreconcilable conflict, and both sections are derived from acts of the legislature, this conflict must be settled by resort to the original acts from which the conflicting sections are derived, and that section which is derived from the later act of the legislature must control.' " The later act here is, of course, the act of 1889, supra, codified as Code, 67-2501, which must control. In headnote 1 of the Thomas case it was ruled: "The due filing for record
of a valid mortgage on realty affords good constructive notice of the instrument to subsequent purchasers and lienholders claiming under the mortgagor, even though the indexing and recording of the mortgage may be erroneously made on books not relating to realty." In headnote 2 it was ruled: "Assignees from the mortgagee of such an instrument thus filed for record will not lose priority over subsequent purchasers or lienholders from the mortgagor by the fact that no assignment of the prior mortgage is recorded or filed for record." See also Blakely Artesian Ice Co. v. Clarke, 13 Ga. App. 574, 578 (79 S. E. 526); Brown v. Aaron, 20 Ga. App. 592, 593 (3) (93 S. E. 258); Merchants' &c. Bank v. Bear, 162 Ga. 446 (134 S. E. 107); Willie v. Hines-Yelton Lumber Co., 167 Ga. 883 (146 S. E. 901). It follows from the above that notwithstanding the error of the clerk of the superior court in recording the motor number of the 1946 Chevrolet sedan, the filing in his office of the title-retention contract on July 8, 1948, within 30 days after its execution, was sufficient notice to all subsequent purchasers of the car covered by such contract, to wit, one Chevrolet sedan, motor DAA-409521, protecting also the transferee of C. V. Nalley & Company, the plaintiffs here, against the claims of all alleged innocent purchasers for value, including the defendant who purchased the car from C. J. Brownagle on September 21, 1948.
2. One ground of the motion for new trial complains that the direction of the verdict was error, and that a verdict could have been returned for the defendant, because it was not shown that C. V. Nalley & Company had title to the car. The automobile which the evidence shows Mr. and Mrs. Brownagle purchased from C. V. Nalley & Company, and which was referred to in the contract as one Chevrolet sedan, motor DAA-409521, was identified beyond question as being the automobile which was in the possession of the defendant. He admitted that he had such a described automobile and that he bought it from C. J. Brownagle. The evidence thus discloses that the parties to this litigation are claiming under a common grantor. In these circumstances it is unnecessary to show title in the common grantor. Code, 33-101; Moore v. Daugherty, 146 Ga. 176 (91 S. E. 14); Horton v. Wilkerson, 192 Ga. 508 (1) (16 S. E. 2d, 8).
3. It is insisted that the direction of a verdict for $1702.14 was error for the reason that the plaintiffs' evidence showed that the market value of the car was $1900 at the time of the institution of the trover action and also showed values of $500, $300 and $100, and that the jury could have found a verdict for a less amount than $1702.14. Movant stresses the argument that a jury is not obliged, in a trover action, to accept the estimate of a witness as to value. The case here, however, turns on a different basis. It was undisputed that the plaintiffs had a claim of only $1650 in the car. They had elected to take a money verdict for the value of the car at the time of the conversion. Hubert M. Burns Jr. testified that the market value of the car was $1900. He also stated that the car was worth $500, $300 or $100, but it is clear from his testimony that he meant that since it was worth $1900 it was necessarily worth any sum less than that, proceeding on the theory that the greater includes the lesser. The only other testimony as to value came from the defendant, who admitted that the car was worth $1875 on September 24, 1948. The plaintiffs were entitled to recover in the trover action only the amount of their claim, $1650, plus interest at 7 percent per annum from September 24, 1948, to April 19, 1949, the date of the verdict (Elder v. Woodruff Hardware &c. Co., 9 Ga. App. 484 (2), 71 S. E. 806; Lucas v. Cornett, 36 Ga. App. 50 (1), 135 S. E. 510), and a calculation will disclose that the amount of the directed verdict, $1702.14, was not excessive. The defendant, by reason of his solemn admission in judicio, is estopped to say that the car was not worth $1875, an amount which is greater than $1702.14, the amount of the verdict. Code, 38-114; Smith v. Wellborn, 75 Ga. 799 (6); Harper v. International Harvester Co., 21 Ga. App. 819 (1) (95 S. E. 306); Carmichael v. Texas Co., 52 Ga. App. 751, 753 (184 S. E. 397). Hence, he can not be said to have been handed by the verdict fixing the amount at $1702.14, which comports with the limit of the plaintiffs' recovery, and can not complain. First National Bank of Chattanooga v. American Sugar Refining Co., 120 Ga. 717 (1) (48 S. E. 326); Kendrick v. White, 75 Ga. App. 307, 311 (43 S. E. 2d, 285).
4. Another ground of the motion for new trial complains that the case was not proved as laid, in that the petition sought to recover an automobile described as a Chevrolet sedan, motor number DAA409521, and the evidence introduced by the plaintiffs showed the car to be a Chevrolet sedan, motor Number DAA-409521. As hereinbefore stated, it was undisputed that the automobile bought by Mr. and Mrs. Brownagle from C. V. Nalley & Company was the identical automobile which the defendant purchased from C. J. Brownagle. The retention-title contract, admitted in evidence without objection, showed the car to be a Chevrolet sedan, motor number DAA-409521. The defendant admitted that he had such an automobile with motor number DAA-409521. He contended merely that the designation of the motor number of the car sought in trover did not have a dash betWeen the DAA and the number 409521, and that, therefore, he was not .withholding the described automobile. Hubert M. Burns Jr. identified the title-retention contract showing the motor number of the car as DAA-409521. He testified that, while he could not remember the motor number of the purchased automobile, he knew the number at the time the papers were prepared and the motor number inserted, and that he raised the hood of the car and personally verified the motor number with that expressed in the papers. Mrs. Brownagle also identified the car in the possession of the defendant as the one which she and C. J. Brownagle purchased from C. V. Nalley & Company under the title-retention contract and note. Even if it could be said that the motor number expressed in the contract was technically different from that named in the petition, DAA409521, it is clear that only one car was purchased by Mr. and Mrs. Brownagle from C. V. Nalley & Company, and that that car was the car which was in the possession of the defendant. Thus; we do not have a case where the plaintiffs are trying to recover one particular automobile and the evidence shows a distinctly different automobile. There is no substantial variance between the allegations of the petition and the evidence. The evidence showing the motor number of the car held by the defendant to be DAA-409521, the plaintiffs might, had they so desired, have amended the petition to show the motor number accordingly, if there had been any objection to the introduction of the title-retention contract showing the motor number as DAA-409521. Taylor v. Taylor, 195 Ga. 711, 721 (25 S. E. 2d, 506), and cit. Though no amendment was filed, the
defect, if any, was cured by the verdict and judgment. Code, 110-705; Mercer v. Nowell, 179 Ga. 37 (1) (175 S. E. 12); Asphalt Products Co. v. Wright, 60 Ga. App. 110, 112 (1) (2 S. E. 2d, 818). Forsyth v. South Side Motors, 79 Ga. App. 719 (54 S. E. 2d, 445) is particularly applicable here. There the petition in the trover action described the automobile as "One 1949 Ford club sedan, motor No. 98 2 BAL 2580." Proof showed the motor to be 98 BA 125850. An amendment to correct the error in the petition was disallowed by the trial judge. In reversing the judgment this court said: "In Small v. Wilson, 20 Ga. App. 674 (93 S. E. 518), a bail-trover case, this court held in substance that a mere clerical error in describing the property that constituted the subject-matter of the case may be cured by amendment if it is apparent from the two descriptions, that is, the description as shown by the original petition and the description as shown by the amendment, that the pleader had in mind the same property. This requirement is adequately met by the pleadings here. The proffered amendment expressly so alleges and leaves room for no other conclusion. Had the proffered amendment been allowed, there would have been no variance between the pleadings and the proof, and the case would have been proved as laid. The trial court therefore erred in rejecting the amendment and thereafter in granting a nonsuit." Obviously there is less dissimilarity in the present case, and since the petition was amendable the defect, if any, was cured by the verdict and judgment as before stated.
5. Finally, it is insisted that as the retention-title Contract was recorded in Clayton County, Georgia, and not in Towns County wherein the Brownagles were "residing" at the time of the purchase of the automobile in question, it was improperly recorded and was abortive. Under the Code, 67-108, the title-retention contract was required to be recorded "in the county where the mortgagor resided at the time of its execution, if a resident of this State." Mr. and Mrs. Brownagle were residents of this State at the time of the execution of the contract. The evidence conclusively showed their legal residence and domicile to be in College Park, Clayton County, Georgia. It was their custom to visit Hiawassee in Towns County, Georgia, at intervals "on vacations." The defendant emphasizes the statement of Mrs. Brownagle that "at the time we bought the automobile we were residing up there," but a proper interpretation of her testimony is that she was not professing to use the word "residing" in a legal but in a loose sense. In fact, she stated in another part of her testimony that "I have never claimed that [Hiawassee] as my residence." Taking all of her testimony together, it amounts to this: They maintained their domicile and home in College Park, Georgia and traveled. At the time the car was bought they were in Hiawassee-fishing. They occupied a cottage when there, and went there to fish. They did not stay there for any appreciable period, but "were staying up there off and on. They were there just for fishing, "sometimes two days, sometimes three days, sometimes a week." She further stated: "I maintained my residence and my home was at College Park. Staying at a fishing camp is very different from maintaining a residence. This property up there was strictly for vacations." Certainly "residence" does not contemplate or embrace a fleeting visit or recurrences of brief sojourns of a few days at a time for the specific purpose, as here, of fishing or vacation. In Farmer v. Phillips, 12 Ga. App. 732, 734 (78 S. E. 353), it was said: "The words 'resident' and 'residence' import more than a temporary stay in a place for the performance of a single piece or job of work, especially where the workman at the same time has a home and permanent place of abode in another place; and the term 'residence' has been judicially defined as 'an abode or dwelling place, as distinguished from a mere temporary locality of existence.' In that case a resident of Tift County, Georgia, moved his family to Worth County, intending to remain there until a house in which he expected to reside, located in Tift County, was completed and made ready for his family residence, when he intended to return to Tift County and resume his residence with his family therein. While temporarily sojourning in Worth County he executed a mortgage on personal property, and this mortgage was recorded in Worth County. This court held that the mortgage should have been recorded in Tift County and said: "Under these definitions of the term, applied to the facts of this case, we must conclude that Holt did not reside in Worth County when he executed the mortgage note to Farmer, but at that time was simply temporarily sojourning in Worth
County until his permanent residence should be ready for his reception in the County of Tift; in other words, that he had not abandoned his residence in Tift County by a temporary dwelling in Worth County for a short time, until he could carry out his intention of resuming his residence in Tift County." Where there is a conflict in the evidence as to residence, the question is one for the jury, but where, as here, only one reasonable conclusion can be reached from the evidence the court will resolve the question as a matter of law.
All of the grounds of the motion for new trial are without merit, and the court did not err in overruling the same.
The questions whether the title-retention contract was transferred to the plaintiffs by one with authority to act for C. V. Nalley & Company, and whether the instrument was entitled to record in the absence of the seal of the notary who witnessed the same, were not raised in the trial court, though argued in the brief of the plaintiff in error, and will not be considered here.
Judgment affirmed. Gardner and Townsend, JJ., concur.
T. B. Higdon, contra.
H. C. Schroeder and George D. Anderson, for plaintiff in error.
DECIDED MARCH 14, 1950. REHEARING DENIED MARCH 27, 1950.
Saturday May 23 06:08 EDT


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