Colonial Hill Co.,v,. Moncrief Furnace Co.

• Decision Date: 14 April 1931
• Docket Number: No. 21214.,21214.
• Citation: Colonial Hill Co.,v,. Moncrief Furnace Co., 158 S.E. 343, 43 Ga.App. 204 (Ga. App. 1931)
• Parties: COLONIAL HILL CO. v . MONCRIEF FURNACE CO.
• Court: Georgia Court of Appeals

43 Ga.App. 204

158 S.E. 343

COLONIAL HILL CO.v. MONCRIEF FURNACE CO.

No. 21214.

Court of Appeals of Georgia, Division No. 1.

April 14, 1931.

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Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Action by the Moncrief Furnace Company against the Colonial Hill Company. Judg-ment for plaintiff, and defendant brings error.

Affirmed.

D. K. Johnston, of Atlanta, for plaintiff in error.

Chas. G. Bruce, of Atlanta, for defendant In error.

BROYLES, C. J.

[1-41 The second headnote only will be discussed. This action in trover was between the original seller of the property sued for and a third person—not the original purchaser. Upon the trial the plaintiff elected to take a money verdict, and the trial judge, sitting without the intervention of a jury, rendered a judgment in favor of the plaintiff for the exact amount of the purchase price of the property as set forth in the retention of title contract.

It is well settled that, "to authorize a money verdict in a trover suit, there must be some evidence to show the value of the personal property converted by the defendant." Oglesby v. Hanson, 7 Ga. App. 318, 66 S. E. 802, and citations.

It is also well established that, "as between the original seller and the original purchaser, the agreed price as stated in the contract of sale is prima facie, but not conclusive, evidence of the actual value of the property. But as between the seller and third persons the amount stated in the contract of purchase is of no such evidentiary value." Elder v. Woodruff Co., 9 Ga. App. 484, 486, 71 S. E. 806, 807.

However, in a suit between the original seller and a third person, where there is any undisputed evidence, direct or circumstantial, which would authorize the jury to infer the value of the property at the date of its conversion, a verdict in favor of the seller for that value, with interest, is authorized, provided that the value is not more than the amount of the debt owed by the defendant to the plaintiff. Lott v. Banks, 21 Ga. App. 246, 248, par. 4, 94 S. E. 322, 324.

In this case, as in the Lott Case, there was no direct and express evidence showing the value of the property at the date of its conversion.

However, in our opinion, the undisputed circumstantial evidence authorized the trial judge, sitting without the intervention of a jury, to find that the value of the property at the time of its conversion was the amount of its purchase-price as agreed on by the original seller and the original purchaser.

This evidence was, first, the purchase price paid for the property by the original buyer....