Berger v. Noble

• Decision Date: 31 January 1950
• Docket Number: No. 32707,No. 2,32707,2
• Citation: 81 Ga.App. 34,57 S.E.2d 844
• Parties: BERGER v. NOBLE
• Court: Georgia Court of Appeals

Page 844

57 S.E.2d 844

81 Ga.App. 34

BERGER v. NOBLE.

No. 32707.

Court of Appeals of Georgia, Division No. 2.

Jan. 31, 1950.

Rehearing Denied Feb. 24, 1950.

SYLLABUS BY THE COURT.

An agent with authority to sell an automobile truck may not, without being empowered so to do, delegate to another such authority, and where such agent entrusts the truck for sale to an automobile dealer, without authority to do so from his principal, and such dealer sells the truck and executes to the purchaser thereof a bill of sale, the true owner can maintain a trover action against the purchaser, upon refusal of the latter on demand to deliver possession of the truck to the principal.

A. A. Noble, plaintiff in the court below, defendant in error here, hereinafter called the plaintiff, brought an action in trover against Allen Berger, defendant in the court below, plaintiff in error here, hereinafter called the defendant, and one Robert Roger Hamby, in the Civil Court of Fulton County, alleging that the defendants were in possession of a described Ford truck, the title to which was in the plaintiff. It was set up that demand had been made by the plaintiff on the defendant for the truck, and same was refused. The plaintiff alleged that the value of the truck was $2,000. Defendant Berger filed his answer denying the material allegations of the petition. The case came on for trial before a judge of the Civil Court of Fulton County, and a jury.

The plaintiff testified in part as follows: That E. O. Williams, together with plaintiff and another, who does not figure herein, made a trip to New York and purchased three automobiles to be brought back to Atlanta for resale, including the Ford truck involved; that the plaintiff paid cash for them; that neither Williams nor the other man had any money and the plaintiff defrayed the expenses of the trip; that when the plaintiff returned to Atlanta, he turned the three automobiles over to Williams and has not seen them since; that Williams traded one car for a Plymouth, which was satisfactory; that the defendant Berger purchased one of the cars, the Ford truck, from Hamby; that Hamby obtained the same from Williams; that the plaintiff traced his automobiles after they left the possession of Williams and found the Ford truck in the possession of Berger; that he made demand on Berger and told him that 'Williams had no authority to turn the car over to Hamby;' that 'I gave O. E. Williams authority to sell them, just turned them over to him to sell;' that the car Berger got was purchased new; that he made the trip, and took Williams and the other fellow to New York to purchase a Pontiac for himself and two other cars to sell and make expenses; that he could not find a Pontiac there at a price acceptable to him and he purchased the three cars for resale; that Williams was working with the plaintiff on the entire deal; that Williams delivered the three cars to Continental Motors, operated by Hamby, and the business went into bankruptcy; that the Continental Motors sold the Ford truck to Berger; that 'I never gave Williams authority to sell or deliver either of these cars to Mr. Roger Hamby'; that 'I know Mr. Williams got bills of sale in New York to all three of these automobiles' and 'never made me a bill of sale to them;' that 'I had two witnesses, another witness and myself to prove that I did pay for them with my money. You say the title, as far as I wanted the World to believe, was in Mr. Williams because I wanted him to try to sell them when we came back here to Atlanta. That's right; as well as I remember on New York cars, they don't make out a bill of sale. They just give you their title certificate. It is not made out to anyone. It is just their transfer.' Witness further testified that 'I took Mr. Williams up there because he had connections up there and could get delivery,' and that his, (witness') cash money was spent for these cars. It appears that in the State of New York a certificate of title to an automobile is furnished by the seller, which certificate does not name the buyer.

E. O. Bobo testified that the three cars, including the truck, came on the Continental Motors lot 'by Mr. Williams, who brought them in there and turned bills of sale over to me [witness was bookkeeper for Continental Motors];' that Williams was then working for the Continental Motors as a salesman, on a car lot fee basis; that the defendant Berger acquired this Ford truck from Hamby and paid him $2,000 cash.

O. E. Williams testified that he had been a partner with Hamby in selling automobiles, but that they had dissolved before Hamby went into bankruptcy; that 'As to any writing with reference to these automobiles, the individuals and the dealers, I bought them from made out bills of sale;' that the plaintiff 'authorized me to buy the cars as I saw fit, due to the fact that he didn't know the car business'; that the trip was made to buy one for the plaintiff and the profits to be split on the others; that his share of the profits were to pay him for going to New York with the plaintiff; that the cars were in the 'full charge' of the witness and 'I tried to sell them'; that the plaintiff 'never authorized me to have any transaction whatsoever with Hamby as to these cars'; that witness was to sell them for cash and deliver the money to the plaintiff, which witness did not do; that he did not know whether the $6,000 taken by the plaintiff to New York with which to purchase the cars belonged to him personally or was money of the partnership sausage business with his brother in Decatur; that the plaintiff and his brother, Fred Noble, were never together at any time 'we looked at the bills of sale or collected the money or discussed the prices we would get for them'; that when they returned to Atlanta from New York the cars were taken directly to the lot of the Continental Motors; that 'due to the fact that * * * I figured that they must have known I was going to sell it from there'; that when he placed the cars on the used car lot, witness stated to Hamby: 'They are your cars now.'

Robert Roger Hamby testified in part that he sold the Ford truck to the defendant Berger shortly after 'buying it from Mr. Nobles;' that witness received cash for the truck; that the signed bills of sale to these three automobiles were turned over to him (witness); that witness gave the defendant Berger a bill of sale for this truck; that at the time the cars were delivered to him he was not in business with Williams; that the partnership had been dissolved prior to the time the trip was made to New York; that he did not give to the plaintiff any of the money paid by Berger to him for the truck.

Mrs. R. R. Hamby testified in part that the plaintiff had stated in the bankruptcy court that he had withdrawn the $6,000 taken to New York from the Noble Sausage Company, and that she remembered the sale of the truck to Berger, that he paid her husband $2,000 and the next day she carried the money to the bank.

The defendant Berger testified that he first talked about buying a truck from O. E. Williams; that he offered $1,900 for the truck; that Williams said he could not sell it for that sum, but to wait and he would see Hamby about it; that when Hamby got in he stated that he, Hamby, had to have $2,000 cash for the truck, and that the defendant paid Hamby $2,000 cash for the truck and that he, Berger, went to the Continental Motors lot as a purchaser, bought and paid for the truck, and drove it out.

After the conclusion of the evidence, counsel for the parties agreed to submit the case to the court for determination on the law and the facts, and the jury was dismissed. Thereupon the judge rendered judgment in favor of the plaintiff against the defendant Berger, and the plaintiff electing to take a money verdict or judgment, same was rendered for $2,000. The defendant moved for a new trial, which he amended by adding certain special grounds. The trial judge overruled this motion, and the defendant Berger excepts and brings the case to this court for review.

Wesley R. Asinof, Atlanta, for plaintiff in error.

O. C. Hancock, Atlanta, C. E. Moore, Atlanta, for defendant in error.

GARDNER, Judge.

The defendant Berger expressly abandons the special grounds of his motion for a new trial.

The court, sitting as judge and jury, was authorized to find that Williams was the agent of the plaintiff to sell the Ford truck involved; that Williams did not sell this car, but delivered it to Hamby, who operated a used car lot; that Hamby sold and delivered the truck to the defendant Berger for $2,000 and retained the proceeds of the sale for himself, and that Hamby executed a bill of sale to the purchaser, Berger. It further appeared from the facts that the truck was purchased in New York; that the certificate of title was given by the seller, and that this instrument was in the possession of the agent and turned over by him to Hamby, the automobile dealer. Under these circumstances the court was authorized to find that the agent, Williams, had no title to the truck in question; that his possession was as agent with specific authority; that the truck was purchased with the plaintiff's money and belonged to the plaintiff and that the agent had no power to delegate his authority to sell the car to another, and that Hamby had no title to the car or right to sell it, and conveyed none to the defendant Berger.

While the evidence was conflicting on the question whether the plaintiff used the money belonging to him in purchasing this truck, or whether the money belonged to a partnership operated by his brother and himself, the court was authorized to find that the money belonged to the plaintiff, and that the plaintiff acquired the title to the Ford truck.

The Code, § 96-111, states: 'The seller can convey no greater title than he has himself.' This automobile truck was not a negotiable instrument, but an article of personalty. There was...