Evans v. Napier

• Decision Date: 07 June 1900
• Citation: 36 S.E. 426,111 Ga. 102
• Parties: EVANS v. NAPIER et al.
• Court: Georgia Supreme Court

36 S.E. 426

111 Ga. 102

EVANS v. NAPIER et al.

Supreme Court of Georgia

June 7, 1900

Syllabus by the Court.

1. Where one delivers to another a certain amount of money with which, as his agent, to purchase live stock, and the purchase is accordingly made, the title to the stock vests in the principal; and if he agrees that the agent shall use the stock for a certain rental, and further agrees that the agent may, whenever he desires to do so, purchase the stock from the principal for the cost, with interest, this latter agreement is not a sale with reservation of title, and need not be recorded, under section 2776 of the Civil Code.

2. The fact that the agent made and delivered to the principal a bill of sale of the stock does not estop the principal to set up the above-stated facts. The intention of the parties and the bona fides of the transaction is a question for the determination of the jury.

3. It was therefore error, in a claim case, to refuse an amendment offered by the claimant, and averring the above-stated facts.

Error from superior court, Wilkinson county; John C. Hart, Judge.

Action by Napier, Worsham & Co. against one Beck. Judgment for plaintiffs. On levy of execution, Samuel Evans filed claim. Judgment for plaintiffs, and claimant brings error. Reversed.

Allen & Pottle, for plaintiff in error.

J. W Lindsey, for defendants in error.

SIMMONS C.J.

It appears from the record that Napier, Worsham & Co. obtained in October, 1893, a judgment against Beck, and had execution issued thereon. This execution was, in December, 1898, levied upon certain live stock then in the possession of Beck. Evans filed a claim, asserting that the property belonged, not to Beck, the defendant, but to him. When the claim case came on for trial, Evans offered to amend his claim by averring that in April, 1898, Beck applied to him for live stock with which to conduct a farm; that Evans declined to furnish the stock because he knew of the judgment against Beck; that he subsequently agreed with Beck was to go into the market, and, as his agent, purchase the live stock he desired; that, under the agreement, Beck was to have the use of the stock at a reasonable rental, and was to be allowed, if he within a reasonable time desired to do so, to purchase the stock from Evans for the cost price, with interest thereon; that Beck took the money, purchased the stock as agreed, and kept possession of it; that he had never purchased the stock from Evans, and the title remained in Evans; that the stock was purchased from divers and sundry persons whom Evans did not know; and that, in order to keep a record of the transaction, Evans took from Beck a bill of sale of the stock. This amendment, was objected to, the court sustained the objection, and refused to allow the amendment, and thereupon directed a verdict finding the property subject. Evans filed his bill of exceptions, claiming that the court erred in refusing to allow the amendment and in directing a verdict against the claimant.

It was claimed by counsel for the defendants in error that the judgment disallowing the amendment was right for two reasons: (1) That the facts alleged in the amendment showed a conditional sale by Evans to Beck, and that the contract of sale had never been reduced to writing and recorded, as required by section 2776 of the Civil Code; and (2) that Evans was estopped to set up this defense, because he had received the bill of sale from Beck, and thereby admitted that the title to the property was in Beck at the time the bill of sale was executed.

1. The facts alleged in the amendment offered did not show that there was a sale of any kind by Evans to Beck. The former furnished the money to the latter as his agent, and allowed Beck the use of the property purchased. Evans further agreed to sell to Beck the stock, if, within any reasonable time, he desired to make the purchase; Beck in the meantime paying a reasonable rental. Thus, there was no sale to Beck, but only an option on Beck's part, with no binding contract. Under this agreement, Evans or Beck could either, at any...