Blevins Aircraft Corp. v. Gardner
| Decision Date | 11 March 1942 |
| Docket Number | 29244. |
| Citation | 19 S.E.2d 350,66 Ga.App. 843 |
| Parties | BLEVINS AIRCRAFT CORPORATION v. GARDNER. |
| Court | Georgia Court of Appeals |
Rehearing Denied March 27, 1942.
Syllabus by the Court.
Mose S. Hayes, of Atlanta, for plaintiff in error.
Powell Goldstein, Frazer & Murphy, James K. Rankin, and James W Dorsey, all of Atlanta, for defendant in error.
Blevins Aircraft Corporation by its attorney at law, Mose S. Hayes made affidavit as provided by law in which he deposed that I. Gibson Gardner, trading as Aircraft Finance Company, was indebted to Blevins Aircraft Corporation in the sum of $1,049.66 and that the defendant is a nonresident of the State, and also simultaneously therewith executed the required attachment bond. Thereupon an attachment issued and was levied on two described airplanes, which were found at the hangar of Blevins Aircraft Corporation at Candler Field, as the property of the defendant. A declaration in attachment was filed in which it was alleged that the defendant resided in Buffalo, New York; that the defendant had property consisting of two airplanes levied on located in Fulton County, Georgia, and that the defendant was due the plaintiff $1,049.66 "for services rendered for labor and material furnished and storage" of said airplanes, payment of which had been demanded and refused; that the account was just, due and unpaid and that an itemized copy of the account was attached. The exhibit attached set out that the defendant was indebted to the plaintiff as to one of such airplanes for labor and material in repairing it $244.66, and $390 for storage at $15 a month for 26 months, and also set out that the defendant was due the plaintiff as to the other airplane, $40 cartage to Atlanta and $375 for 25 months storage at $15 a month. In his answer the defendant denied liability and by way of cross-action alleged that the plaintiff was indebted to the Aircraft Finance Company on two certain promissory notes which had been executed by the respective purchasers of the two airplanes referred to in the declaration, which notes had been transferred and indorsed by the plaintiff to the Aircraft Finance Company.
The case came on for trial. It appeared that the plaintiff sold the two airplanes, one to Roy Phillips on October 26, 1937, and the other to Thomaston Flying Club on August 6, 1937. It also appeared that these sales were not for cash, and for the unpaid purchase price the buyers executed their promissory notes together with contracts in which each buyer gave the seller a mortgage on the airplane purchased. These mortgage contracts provided that upon default by the mortgagor in the payment of the purchase-money note the mortgagee could, without notice or liability for damage, take possession of the airplane wherever found and resell it at public or private sale without notice to the mortgagor, and, from the proceeds of the sale, the mortgagee should first deduct all expenses of retaking, repairing and selling the airplane, and apply the balance to the payment of the note. The mortgage contract provided that any surplus from the sale should be paid to the mortgagor, and that any deficiency in the amount realized from such a sale should be paid by the mortgagor to the mortgagee. The contract also provided that the mortgagee could bid at any sale. It also appeared that immediately after the sale of each of the airplanes the notes and contracts executed by the purchaser to the present plaintiff were transferred by it to the defendant Aircraft Finance Company, in the following language: "For value received, the undersigned does hereby sell, assign and transfer chattel mortgage unto Aircraft Finance Company, 514 M. & T. Bldg., Buffalo, N.Y." Phillips defaulted in the payment of the purchase-money note, and on April 3, 1938, the defendant telegraphed the plaintiff to seize the airplane sold to Phillips. It was recited in the telegram as follows: "Please consider this wire your authority to seize aircraft." The Thomaston Flying Club likewise defaulted in paying its purchase-money note and in addition wrecked the airplane. The defendant instructed J. F. Byrd, the president of the plaintiff corporation, to repossess this airplane for the defendant. These airplanes were repossessed from the purchasers and retained by the plaintiff in its hangar at Candler Field. It was necessary to cart the wrecked plane to Candler Field. The plaintiff made certain repairs to the plane taken from Phillips during the first part of 1939. Neither of these airplanes was sold by the defendant or by the plaintiff for the defendant, but both were kept at the plaintiff's hangar.
The jury returned a verdict in favor of the plaintiff against the defendant for $150, and also in favor of the defendant on his cross-action and against the plaintiff for $1,680 principal and $395 interest. It appears that the verdict for the defendant on the cross-action was directed by the court, and that the claim of the plaintiff against the defendant for repairs to one airplane and storage of both airplanes was submitted to the jury. The court instructed the jury that the plaintiff's claim for $40 cartage was stricken because the evidence showed that the purchasers of that airplane had themselves carted it to the plaintiff's hangar at Candler Field. A judgment was entered on the verdict...
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...32 Ga.App. 701(5), 124 S.E. 541; Southern Auto. Fin. Co. v. Chambers, 65 Ga.App. 259, 264, 15 S.E.2d 903; Blevins Aircraft Corp. v. Gardner, 66 Ga.App. 843, 846, 19 S.E.2d 350. In Barnes v. Reliable Tractor Company, 117 Ga.App. 777, 161 S.E.2d 918, involving the grant of summary judgment th......
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