Commercial Auto Loan Corp. v. Baker

• Decision Date: 07 March 1946
• Docket Number: 30976.
• Citation: 37 S.E.2d 636,73 Ga.App. 534
• Parties: COMMERCIAL AUTO LOAN CORPORATION v. BAKER.
• Court: Georgia Court of Appeals

37 S.E.2d 636

73 Ga.App. 534

COMMERCIAL AUTO LOAN CORPORATION v. BAKER.

No. 30976.

Court of Appeals of Georgia, Division Nos. 1, 2.

March 7, 1946

Syllabus by the Court.

1. Where printed forms, a note and a bill of sale to secure it with blanks thereon for the insertion by the grantee of the amount of the transaction and the time when the payments were to be made were signed with none of such blanks filled in and the blanks into which were to be inserted the name of the grantee and the time the payments were to be made were filled in, contrary to the instructions of the grantor and his injury, with the name of a person not intended by the grantor to be the grantee and with the time the payments were to be made not intended by the grantor to his injury, as between the original parties such papers are void.

2. 'Where the vendor of personal property to which title is retained until it is paid for in full wrongfully deprives the vendee of possession, the vendor is guilty of conversion, and the vendee may maintain an action of trover against the vendor for the property.'

3. 'When the plaintiff elects to demand a verdict for damages alone, as he did in the present case, and the evidence shows that the interest of the plaintiff in the property at the time of the conversion is less than that of absolute ownership, the measure of damages will be the value of the plaintiff's interest therein, whatever it may be.'

4. 'Where the plaintiff in a trover action elects to take a money verdict, he may recover the value of the property at the date of the conversion * * * with a reasonable hire from that date to the date of the trial, if the property is of a character that hire may be recovered.'

5. The amount of the verdict here was within the range of the evidence as it related to the plaintiff's interest in the property, and in addition the reasonable hire of the truck and trailer from the date of the conversion to the date of the trial. The evidence authorized the verdict.

BROYLES, C. J., dissenting.

Ezra E. Phillips, of Atlanta, for plaintiff in error.

Burress & Dillard, of Atlanta, for defendant in error.

MacINTYRE, Judge.

The defendant in error, Baker, contends that the note and conditional bill of sale to secure a debt never had any inception for the simple reason that it shows that, because of the nonperformance of the condition precedent, there is no contract in existence, and that therefore there is nothing to which to apply the excluding evidence rule; that he signed some printed forms leaving blanks therein to be filled in that the plaintiff in error, the Commercial Auto Loan Corporation, hereinafter called the 'Loan Company,' filled in these blanks contrary to Baker's instructions and that the issue here was raised by one of the original parties and the rule as to third persons who are bona fide purchasers for value is not applicable. The plaintiff in error, the Loan Company, contended that all of the blanks in the forms in question were filled in by them before Baker signed and delivered them to the Loan Company, and that they (the Loan Company) were bona fide purchasers for value from P. & G. Sales & Service, hereinafter called the 'sales Company.' The defendant in error, Baker, further contends that the blanks should have been filled in so as to have made the plaintiff in error, the Loan Company, the payee in the note and the vendee in the conditional bill of sale; that the blanks were filled in by the plaintiff in error with the third party, the Sales Company, so as to make it appear that the plaintiff in error was a bona fide purchaser, when in fact he was not; that in view of the fact that the plaintiff's business was that of hauling produce from various states and which oftentimes necessitated his being out of Atlanta when the installments became due and that a provision was to be inserted in the contract whereby he was to have 30 to 60 days to make the payments before the same became due when it was thus necessary to be away from Atlanta. Apparent authority is power which results from acts that appear to third persons to be authorized by the principal. Restatement of the Law of Agency, 440, § 194(a). The jury were authorized to find under the evidence that there was no third party involved in the instant case as the whole controversy was between the original parties to the transaction. Restatement of the Law of Agency, 332, § 125; 126, § 51.

The fact that an agent is intrusted with an instrument and is authorized to do something with reference to the instrument does not give him power to deal with the instrument in an unauthorized way. Restatement of the Law of Agency, 421, § 177; see especially p. 400, § 164, and p. 418, § 175. In 41 C.J. 420, § 276, it is said: 'When a mortgage is duly and properly executed, but contains blank spaces for the name of the mortgagee, the description of the property to be covered, or the amount and conditions of the debt to be secured, and the blanks are afterward filled up in accordance with the directions of the mortgagor and with his consent, it is a valid mortgage and binding upon him, at least in equity; but it is otherwise if the blanks are filled up without his authority or consent, or contrary to his direction. So if a mortgage left blank as to the mortgagee's name is filled up in accordance with the mortgagor's instructions and comes into the hands of an innocent and bona fide holder for value, it will be a valid security, without reference to whether such instructions were oral or in writing, or whether the name was inserted before or after delivery, or in the presence or absence of the mortgagor. But if the instrument is filled up contrary to the directions of the mortgagor, and to his injury, with knowledge on the part of the person who takes and holds under it, it is null and void as to him. An agent may have implied authority to fill in the name of the mortgagee.' We think that this same rule, which is applicable to a mortgage, would be applicable to a conditional bill of sale in this State. In the case of State v. Mattews, 44 Kan. 596, 604, 25 P. 36, 39, 10 L.R.A. 308, it is said: 'We believe however, that all the courts hold that if the instrument is filled up contrary to the directions of the maker and to his injury, and with full knowledge on the part of the party who takes and holds under it, the instrument will be held to be absolutely null and void as to him. * * * On the other hand, however, it is generally held that if the instrument is filled up in accordance with the instructions, written or oral, of the maker, in his presence or absence, before or after its delivery, and under it the property at that time or afterward comes into the hands of some innocent and bona fide holder for value, the instrument will be held to be valid.' We think the first rule announced in State v. Mattews, supra, is applicable here under the evidence of Baker, the defendant in error. Baker testified in part that he purchased a truck and trailer, hereinafter referred to as the 'truck,' from the Sales Company; that the sale was for cash in the amount of $2,250; that Baker had another automobile for which he was to be allowed $600 as a trade-in; that he was to pay $50 in cash and was to borrow $1,600 from the Loan Company; and that he was to pay this $1,600 to the Sales Company and thus complete the sale for cash as agreed upon between the Sales Company and Baker. In short, the sale to Baker by the Sales Company was consummated as a cash sale and was so known to the Sales Company, the Loan Company and Baker. This was testified to by both Baker and the salesman for the Sales Company who worked up the trade, and also by the general manager of the Sales Company who handled all the papers and finished the trade for the Sales Company. Baker and the Sales Company both informed the Loan Company as to what the sale was and that it was for cash, and Baker left it to the Loan Company, in general conformity with what their trade was, to fix up the papers to secure their loan of $1,600 to him on the truck he had purchased for cash from the Sales Company. It being about dinner time when Baker was to sign the loan papers, the manager of the Loan Company stated to Baker that the person who usually filled out such forms under such circumstances was absent and for him [Baker] to sign the printed forms which they presented to him with only printed matter therein and they would fill out the blanks left in them, to wit: for inserting the other party's name; for inserting the total amount of the purchase price, the amount of the loan due, the amount of the monthly installments and the time when they were payable; and that the Loan Company would fill these blanks in as authorized by Baker. These forms with only the printed matter were signed by Baker. A check signed by the Loan Company by Gisi was sent to the Sales Company describing the truck and reciting that it was for the full purchase price of the truck in question. The Loan Company requested the Sales Company to execute a straight or unconditional bill of sale to Baker which was done. It seems to us that thereupon the property belonged then to Baker and that if the Loan Company wished to secure their loan they could have taken a straight bill of sale from Baker and taken from him a conditional sale contract for the security of the balance due on the loan. This would have been according to the directions of Baker and in conformity with his authorization of the filling of the blanks. Baker returned to the Loan Company about 2 or 3 p. m. to get his copy of the papers but the Loan Company told him that they would have to charge him $947 instead of the 8% interest [$128] as agreed upon, and that he, Baker, protested but finally agreed to this. Howeve...