Altman v. Strouse
| Decision Date | 12 January 1954 |
| Docket Number | No. 18414,18414 |
| Citation | 79 S.E.2d 801,210 Ga. 282 |
| Parties | ALTMAN et al. v. STROUSE. |
| Court | Georgia Supreme Court |
On September 21, 1950, Kelly Salter executed and delivered to Farmers and Merchants Bank of Brooklet, Georgia, a bill of sale to secure debt covering certain farm machinery including a 1948 Allis-Chalmers tractor, which is the subject matter of this suit. Thereafter, Salter, who was negotiating to farm with J. S. Strouse, on October 1, 1951, executed and delivered to Strouse a bill of sale to secure debt to certain farm machinery including a 1949 Allis-Chalmers tractor, said bill of sale being made 'subject to an outstanding bill of sale over this tractor to Farmers and Merchants Bank, Brooklet, Georgia.' Both bills of sale were duly recorded in accordance with their priority.
On December 12, 1951, the plaintiffs (who are also the plaintiffs in error here), a partnership doing business as Altman Pontiac Company in Statesboro, Georgia, acting by and through J. G. Altman, advanced to Salter a sum of money allegedly for the purpose of paying off the above bank and transferring the bill of sale to the plaintiffs. However, upon payment of the indebtedness, instead of being transferred the bill was marked satisfied, mailed to Salter and canceled of record by him. On a later date and on request of Altman, Salter returned the cancelled bill of sale to the bank for correction of the alleged error, and then to the courthouse where another notation was made of record that it was transferred to the Altmans as of December 12, 1951 after it had been supposedly erroneously canceled.
On February 21, 1952, Strouse obtained a quick order sale and the tractor was sold by the Sheriff of Bulloch County, the funds derived from said sale being held by him; and the plaintiffs brought an equitable petition, alleging in substance the above, to enjoin the disbursement of this fund, adjudicate the rights of the plaintiffs and the defendant Strouse, cancel Strouse's bill of sale, and correct the alleged mistake in canceling the bill of sale to the bank. An answer and traverse was filed by Strouse, claiming that the bill of sale held by him became a first mortgage upon the cancellation of the bank's bill of sale of record, thereby giving him priority over all liens; and that said tractor had in fact been used as a down payment on a 1941 Ford automobile purchased by Salter from Altman Motor Company; and his prayer was that the Altmans' claims be denied.
On the trial thereof before a jury, the evidence was conflicting as to the various transactions and as to whether or not the tractor had been actually sold or traded and as to whether or not the bill of sale was canceled through error instead of being transferred; and the jury returned a verdict for the defendant. The judgment awarded the amount determined to be due to the defendant and the balance from the sale of the tractor to the plaintiffs. A motion for new trial, as later amended by three special grounds, was filed and overruled, and the exception here is to this judgment.
Wm. J. Neville, W. G. Neville, Statesboro, for plaintiffs in error.
Geo. M. Johnston, Statesboro, for defendant in error.
Syllabus Opinion by the Court.
1. The first and third special grounds of the motion for new trial complain of the admission in evidence of testimony of witnesses as...
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...Son, 92 Ga. 319(4), 18 S.E. 65; Wolff v. Ga. So. & F.R. Co., 94 Ga. 555(2), 20 S.E. 484; Ford v. Kennedy, 64 Ga. 537(6); Altman v. Strouse, 210 Ga. 282(1), 79 S.E.2d 801; Dill v. State, 222 Ga. 793(2), 152 S.E.2d 741. Where the jury considers evidence on the same subject matter, admitted wi......
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