Chambers v. State

• Decision Date: 21 April 1890
• Citation: 85 Ga. 220,11 S.E. 653
• Parties: Chambers. v. State.
• Court: Georgia Supreme Court

11 S.E. 653

85 Ga. 220

Chambers.

v.State.

Supreme Court of Georgia.

April 21, 1890.

Conditional Sale—Sale by Purchaser—Evidence—Instructions.

1. Where trial is had upon accusation founded on affidavit, there can be no conviction unless it appears that the offense was committed before the making of the affidavit charging its commission.

2. The necessary elements of venue must be established, either by direct or circumstantial evidence, with due certainty.

3. Where the sale of a chattel is conditional, the vendor reserving title, he is under no duty to the vendee to record the contract of sale, or take other precaution against loss from any wrongful sale of the property which may be made by the latter.

4. Where there is no evidence of good faith in selling property to which the accused had no title, the request to charge the jury that the sale of defendant's interest, made in good, faith, would be no offense, ought to be declined.

(Syllabus by the Court.)

Error from city court, Richmond county; Eve, Judge.

Chambers was tried in the city court of Richmond county on an accusation of selling personal property held under conditional sale, with title retained and purchase money not paid, and was convicted. He excepted to the denial of a new trial, his motion therefor consisting of the following grounds: "(1, 2) Verdict contrary to law and evidence. The evidence showed the following: He signed an order to the National Cash Register Company, dated December 19, 18S8, for a register of a certain description, agreeing to pay $ 125 for it in five installments. The order con-eluded with these words: 'It is agreed that the title to the cash register shall not pass until the same is paid for in full, and shall remain your property until that time. This contract covers all agreement between the parties hereto.' The register was one of a number put on exhibition at the Augusta exposition in the autumn of 1888. Defendant traded for it with one Cohen, who was employed by the company to attend its exhibit. It was carried to defendant's saloon in Augusta, where it remained for two weeks; and then the company's general agent went to the saloon, carrying the blank order or contract filed out/read it to defendant, who during the reading put his hand to his ear to aid his hearing, and then said: 'Yes, that is it. Just like a sewing-machine contract, '— and signed it; this being on the day it bears date. He paid the first installment, but no more, and $100 still remain due and payable. Twice after the default in meeting the second payment, the company's general agent saw defendant, and asked him who was to pay the notes. He replied that he had retained the register, and he would pay for it. This agent had had no talk with defendant prior to taking the contract to his saloon for signature. Was in there several times afterwards. Defendant subsequently sold the register and afterwards admitted that he had done so, as well as the fact that he signed the contract. The instrument bears no entry of record. Defendant introduced no evidence, but made a statement, the material portion of which is that, when the trade for the register was made, nothing was said about reserving the title; that when the company's general agent and Cohen, the other employe mentioned, came to the saloon, two weeks afterwards, it was the latter, not the former, who produced the paper for signature, saying he had to account for the register, and wanted defendant to sign the order to be...