Hayes v. O'Shield Buick Co.

• Decision Date: 11 July 1956
• Docket Number: No. 36262,No. 2,36262,2
• Citation: 94 Ga.App. 177,94 S.E.2d 44
• Parties: James HAYES v. O'SHIELD BUICK COMPANY
• Court: Georgia Court of Appeals

Page 44

94 S.E.2d 44

94 Ga.App. 177

James HAYES v. O'SHIELD BUICK COMPANY.

No. 36262.

Court of Appeals of Georgia, Division No. 2.

July 11, 1956.

Syllabus by the Court.

1. Special grounds of a motion for a new trial abandoned by counsel for the plaintiff in error or unlikely to recur on another trial are not passed upon by this court. Special grounds dealing with assignments of error on pleadings will not be considered on a motion for a new trial. Special grounds complaining of exclusion of evidence are too imperfect for consideration where the ground is not complete within itself and merely recites that 'the court erred in refusing to permit counsel for the defendant to introduce evidence as to the following facts,' certain facts being set out, but the identity of the witness apparently offered to the court not being shown, and it not being clear whether the defendant himself or some other person would have offered the testimony or, if another, what knowledge he had of the facts sought to be shown.

2. In an action in trover, which sounds in tort, it is not permissible for the defendant to seek a setoff or recoupment for damages for a breach of contract, even though the transaction alleged as the gravamen of the trover action is contended to have arisen as a result of other facts intimately connected with the alleged breach of contract. The exception to this rule embodied in Code, § 107-102 is not involved here, nor are there such other exceptional equitable features as will remove this case from the general rule.

3. It is error to charge, where the plaintiff in a trover action elects a money verdict for the value of the property plus hire, that he is entitled to the highest proved value between the date of conversion and the date of trial, since where hire is allowed the plaintiff is allowed the value only as of the date of conversion.

O'Shield Buick, Inc. filed a bail trover action in the Superior Court of Newton County for a certain 1951 Buick Fordor Sedan. The defendant answered, disclaiming title and denying any conversion and tendered the property to the plaintiff, denying that there had ever been any demand or refusal to deliver. Demurrers were directed to paragraphs 4 through 12 of the first amendment and 13 through 17 of the second amendment 'insofar as defendant seeks to recover by way of cross for damages suffered due to breach of warranty.' The stricken paragraphs are in part as follows:

'4. Further answering said petition defendant shows: That on or about the ___ day of February, 1955, defendant did purchase from the plaintiff one 1950 model 4 door Buick sedan, for the purchase price of $618. 5. That said car was warranted by the plaintiff to be in good mechanical condition. 6. Defendant shows that said car was not in good mechanical condition as warranted and he was forced to take said car back to plaintiff's place of business on several occasions for repairs and adjustments. 7. That on or about June 8th, defendant left the car he had purchased with the plaintiff for repairs to the carburetor and front end thereof, at which time plaintiff gave the defendant the possession of the automobile described in the within trover petition to keep and use until such time as plaintiff could repair and deliver defendant's automobile to him. 8. The plaintiff has never repaired and delivered defendant's car to him. 9. That defendant has lost the use of his car since June 8, 1955, which had a reasonable rental value of $5 per day. 10. That plaintiff by its action has rescinded the sale of said 1950 Buick made to defendant. 11. That the plaintiff is a nonresident of Newton County. 12. That plaintiff is indebted to defendant in the sum of $618, plus rental for his car since June 8, 1955, at $5 per day.' Error is assigned in the bill of exceptions on the judgment striking these paragraphs. The case proceeded to trial and, the plaintiff electing to take a money verdict, a verdict was returned in the sum of $795 plus hire in the amount of $148.50. The defendant moved for a new trial on the usual general grounds and a number of special grounds, and the overruling of this motion is assigned as error.

Wm. T. Dean, Conyers, for plaintiff in error.

Vaughn & Barksdale, C. R. Vaughn, Jr., Conyers, for defendant in error.

TOWNSEND, Judge.

1. Headnote 1 needs no elaboration.

2. The exception to the striking of certain paragraphs of the answer will be considered in connection with special ground 7 of the amended motion for a new trial assigning error on the following portion of the charge: 'Now, gentlemen of the jury, you will have these papers out with you, and in these papers I charge you that the court has stricken from your consideration in the defendant's plea and answer and cross bill paragraphs 4 through 12 inclusive, and you are to disregard these paragraphs altogether. Likewise, the cross bill for damages by the defendant has been stricken and you are to disregard that.'

Unless there are exceptional circumstances involving some special equity, as the nonresidence or insolvency of the plaintiff. Youngblood v. Armour Fertilizer Works, 23 Ga.App. 731(2), 99 S.E. 314, a counterclaim is not proper against a trover action. Code, § 107-102 limits recoupment in trover to suits brought to recover personal property by a vendor retaining title against a defaulting vendee. Powers v. Wren, 198 Ga. 316(1), 31 S.E.2d 713. The present trover action does not involve property purchased from the plaintiff by the defendant, but other property which was temporarily substituted for the original subject matter of the sale. Nonresidence of the plaintiff in the defendant's county of residence is not a sufficient ground for equitable intervention. Harden v. Lang, 110 Ga. 392, 398, 36 S.E. 100. Both parties agree that the defendant left his 1950 Buick with the plaintiff for repairs and was loaned the 1951 Buick in...