Ayers v. Yancey Bros. Co., 53103
| Decision Date | 23 February 1977 |
| Docket Number | No. 53103,No. 2,53103,2 |
| Parties | , 21 UCC Rep.Serv. 641 Sandra C. AYERS v. YANCEY BROTHERS COMPANY |
| Court | Georgia Court of Appeals |
Katz, Paller & Land, John E. Robinson, Atlanta, for appellant.
Clifton, Helms & Dodd, David A. Dodd, Lithia Springs, for appellee.
The instant appeal was taken: 1) from a judgment granting the plaintiff possession of certain property under a foreclosure proceeding for a sum claimed in the amount of $2,408.44 and 2) the subsequent overruling of the defendant's motion for a new trial. The facts pertinent to consideration of this case are as follows:
The plaintiff, Yancey Bros. Company (Yancey), sold a Caterpillar "Traxcavator" and certain accessory equipment to the Dew-Moore Construction Company (Dew-Moore) on January 19, 1973 and retained a purchase money security interest under a security agreement between the parties. Yancey filed a financing statement, describing the equipment, in the county where the debtor resided and where the property was located. The security agreement called for a total time price of $32,305.80 and recited that there was a down payment of $7,408.80 and a promissory note in the amount of $24,897.36 for the balance. Twenty-four payments were to be made, each in the amount of $1,037.39. Yancey actually received $5,000 on the down payment, leaving a balance due of $2,408.44, which was transferred to an open account and billed to the original debtor, Dew-Moore. The security agreement between Yancey and Dew-Moore recited that the agreement was to secure any other indebtedness of the debtor to Yancey presently existing or arising in the future.
On or about August 2, 1973, Dew-Moore transferred the equipment to the defendant, Sandra C. Ayers (Ayers), without the consent of Yancey.
Ayers obtained a copy of the security agreement from Dew-Moore but did not request that the debtor Dew-Moore, obtain a statement of account from the plaintiff in connection with the purchase of the equipment. See Code Ann. § 109A-9-208 (Ga.L.1962, pp. 156, 395).
There was a conflict as to whether Ayers took any steps to check with Yancey regarding the amount owed at the time the property was transferred. An employee of Yancey denied that Yancey was contacted about this. However, Ayers testified that prior to the transfer of the property from Dew-Moore she contacted Yancey about the status of the account, talked with "bookkeeping" and got confirmation of the payments due and the amount due; as she at one time stated "all was confirmed." She admitted she did not know the name of the person with whom she conversed.
After taking over the equipment, Ayers made 17 monthly payments to Yancey. Then, just prior to the last payment, Yancey informed Ayers that a balance of $2,408.44, carried on the open account was still due. Thus, when Ayers tendered the last payment "in full satisfaction" and requested a termination statement, Yancey refused to accept it or issue the statement, contending that the last payment of $1,037.39 plus $2,408.44 was due it.
Yancey brought action to foreclose based on an indebtedness of $3,445.83. Ayers tendered the last payment of $1,037.39 into court, leaving the balance of $2,408.44 as the amount in dispute.
The defendant answered and denied the material allegations of the complaint and further filed a counterclaim, seeking to recover from the plaintiff on the basis that the plaintiff had failed to issue a termination statement within ten days upon request of defendant all as required by Code Ann. § 109A-9-404 (Ga.L.1962, pp. 156, 417; 1963, pp. 188, 201).
The trial judge, sitting without a jury, heard the facts and after setting forth the same in his order made the following conclusions of law: (1) that plaintiff has a properly filed financing statement and a valid security agreement covering the "Traxcavator"; (2) that the financing statement filed by plaintiff was notice to defendant that the underlying security agreement was outstanding; (3) that the "open-end" clause contained in the security agreement was notice to defendant of other possible debts secured thereby; (4) that plaintiff retained a security interest in the equipment in defendant's possession in the amount of $2,408.44; (5) that plaintiff is entitled to a writ of possession upon defendant's property.
After entry of the judgment the defendant filed a motion for new trial and also what was denominated a motion to correct the judgment, setting forth that certain findings of fact as made by the trial judge were error, resulting in erroneous application of the conclusions of law entered. These motions were overruled and appeal was taken.
In the enumerations of error, the defendant sets out: (1) that the court erred in entering judgment in favor of the plaintiff, concluding that the plaintiff retained a security interest in the equipment in the amount of $2,408.44; (2) that the trial court erred in denying defendant's counterclaim; (3) the trial court erred in admitting into evidence the plaintiff's exhibit which was not relevant to the issues of the case and (4) the trial court erred in denying the defendant's motion for a new trial and motion to correct judgment. Held :
1. Contrary to defendant's contention the open-end clause of the contract in question was sufficient to include the sum listed as a down payment which was not actually paid but placed on an open account, to wit...
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