Cook Motor Co. of Panama City, Inc. v. Richardson, 38638

Decision Date03 February 1961
Docket NumberNo. 2,No. 38638,38638,2
Citation118 S.E.2d 502,103 Ga.App. 129
PartiesCOOK MOTOR COMPANY OF PANAMA CITY, INC. v. R. K. RICHARDSON
CourtGeorgia Court of Appeals

P. Walter Jones, Albany, Isler, Welch & Jones, Panama City, Fla., for plaintiff in error.

Perry, Walters & Langstaff, Robert B. Langstaff, Albany, for defendant in error.

Syllabus Opinion by the Court

CARLISLE, Judge.

In this case the allegations of the petition in trover, as amended, show that the defendant, an individual doing business as a used automobile dealer, is in possession of certain described automobiles which he purchased for valuable consideration from another used automobile dealer in Georgia who had, in turn, acquired them from the plaintiff, a Florida used car dealer, under a contract of sale, paying the plaintiff the purchase price of said automobiles by executing to him a sight draft in the amount thereof; that the plaintiff, on the sale to the first dealer, retained the certificates of title to said automobiles required under Florida law, and said sight draft was never paid and said certificates of title never delivered by the plaintiff vendor to the Georgia vendee; that the plaintiff took no steps to protect his interest in said automobiles except the mere retention of the title certificates; and, that the plaintiff failed to secure from said dealer and record either a title retention contract or a bill of sale to secure debt to said automobiles. Held:

1. Where, under a contract of sale of automobiles, by the terms of which payment therefor is to be made in cash, the vendor delivers possession of the automobiles to the vendee and agrees to accept and does accept in payment therefor a check or draft which later is found to be worthless, and where such vendee, being in possession of the automobile, or automobiles, later sells the same to an innocent purchaser for value, trover will not lie to aid the original seller in recovering the property from the possession of the second vendee. Capital Automobile Co. v. Ward, 54 Ga.App. 873, 189 S.E. 713; Gouldman-Taber Pontiac, Inc. v. Thomas, 96 Ga.App. 279, 99 S.E.2d 711.

2. While under the rule above announced as between vendor and vendee the title to such property does not pass unless it is expressly agreed between the parties that the check or draft is taken as payment nevertheless, 'Where an owner has given to another such evidence of the right of selling his goods as, according to the custom of trade or the common understanding of the world, usually accompanies the authority of disposal, or has given the external indicia of the right of disposing of his property, a sale to an innocent purchaser divests the true owner's title.' Code, § 96-207. As has been said, this rule is merely a special application of the rule embodied in Code, § 37-113 that, 'When one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury shall bear the loss.' Blount v. Bainbridge, 79 Ga.App. 99. 53 S.E.2d 122; Hall v. LeCroy, 79 Ga.App. 676, 54 S.E.2d 468; Teague Ford Sales, Inc. v. Commercial Auto Loan Corp., 96 Ga.App. 129, 99 S.E.2d 524.

3. No precise and directly applicabel definition of 'external indicia...

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7 cases
  • Hartford Fire Ins. Co. v. Lewis, 41259
    • United States
    • Georgia Court of Appeals
    • May 25, 1965
    ...sale of the car to the plaintiff under the facts of this case divested his principal of title thereto. Cook Motor Co. of Panama City, Inc. v. Richardson, 103 Ga.App. 129, 118 S.E.2d 502 and authorities therein cited. With such knowledge, and abandoning the legal remedy available to test the......
  • United States v. LaGrange Stockyard, Inc.
    • United States
    • U.S. District Court — Northern District of Georgia
    • April 7, 1967
    ...in this case whether the State law is to be applied, United States v. Kramel, 8 Cir., 234 F.2d 577; Cook Motor Co. of Panama City, Inc. v. Richardson, 103 Ga.App. 129, 118 S.E.2d 502 or the federal law would govern United States v. Matthews, 9 Cir., 244 F.2d 626(1) since under the law of Ge......
  • Wreyford v. Peoples Loan & Finance Corp. of Forest Park
    • United States
    • Georgia Court of Appeals
    • February 22, 1965
    ...79 Ga.App. 99, 53 S.E.2d 122; Gouldman-Taber Pontiac, Inc. v. Thomas, 96 Ga.App. 279, 99 S.E.2d 711; Cook Motor Co. of Panama City, Inc. v. Richardson, 103 Ga.App. 129(2), 118 S.E.2d 502. As between the parties, that is, between the vendor and the vendee of an automobile, whether the automo......
  • Birkett L. Williams Company v. Smith, 22040.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • November 30, 1965
    ...of the place where the property is situated at the time of conversion governs an action in trover. Cook Motor Co. of Panama City, Inc. v. Richardson, 1961, 103 Ga.App. 129, 118 S.E.2d 502; 89 C.J.S. Trover and Conversion § The real problem here, therefore, is the determination under Georgia......
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