Hilliard v. Gen. Motors Acceptance Corp.
| Decision Date | 09 July 1936 |
| Docket Number | No. 25206.,25206. |
| Citation | 54 Ga.App. 105,187 S.E. 218 |
| Parties | HILLIARD. v. GENERAL MOTORS ACCEPTANCE CORPORATION. |
| Court | Georgia Court of Appeals |
Rehearing Denied July 23, 1936.
Syllabus by the Court.
1. Where personalty is sold and title retained in the seller as security for the balance of the purchase money, a suit by the seller to foreclose the contract as a mortgage under the act of 1921 (Ga.Laws 1921, p. 114, Code 1933, § 67-1601), does not have the effect of transferring the title into the buyer, and does not estop the seller from afterwards bringing an action of trover for the property.
2. Where the court by striking a portion of the defendant's plea eliminates from the consideration of the jury all questions in the case except one, any instructions to the jury, or failures to instruct, and any rulings on the admissibility of evidence, which do not relate to the one question submitted to the jury, are immaterial.
3. Where a person buys property with express notice that it is not fully paid for, and agrees to discharge the balance due, he is not a bona fide purchaser without notice.
4. The evidence authorized the verdict.
Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.
Action by the General Motors Acceptance Corporation against H. J. Hilliard. Judgment for plaintiff, and defendant brings error.
Affirmed.
Edward F. Taylor, of Macon, for plaintiff in error.
Martin, Martin & Snow, of Macon, for defendant in error.
On December 13, 1934, General Motors Acceptance Corporation brought an action in trover against Hilliard alleging that he was in possession of a Chevrolet automobile truck, motor No. T-4615754, the property of the plaintiff and of the value of $704.64, and that the defendant refused to deliver the property to the plaintiff or pay it the profits thereof. Affidavit to require bail was attached to the petition. The defendant answered on February 14, 1935, denying the allegations as to possession, ownership, and value of the truck, and traversing all the allegations of the bail affidavit. On the trial, June 26, 1935, the defendant tendered an amendment to his answer which set up that the plaintiff on December 12, 1934, attempted by affidavit to foreclose its retention of title contract as a mortgage; that execution was issued on the affidavit and levied on the property described in the contract; that the plaintiff was contending that the defendant was holding the truck under a contract of purchase from Henry New-some, who had no right to sell the truck, and that Newsome had no title to the truck, but the title was in the plaintiff under the retention of title contract; that, when the plaintiff elected to foreclose the retention of title contract as a mortgage, the plaintiff elected to treat the truck as the property of Newsome, and as the property of the defendant as the grantee of Newsome, and the plaintiff elected to stand upon its contract of sale and to reject its retention of title contract; that, when the plaintiff elected to treat the truck as the property of Newsome, then under the warranty of sale by Newsome to Hilliard the title immediately passed through Newsome to Hilliard; that the plaintiff is now estopped from prosecuting this action against either Newsome or the defendant by reason of its election to treat the truck as the property of New-some, at a time when it knew that New-some had already sold the truck to the defendant. Attached to the proposed amendment was a copy of the foreclosure proceeding, including the levy of a fi. fa. for $704.64 on the truck as the property of Henry Newsome.
The amendment was objected to by the plaintiff on the grounds that it was a plea in abatement and should have been filed at the first term, and that it set out no defense. Thereupon the court passed anorder allowing the amendment subject to demurrer and striking it on demurrer. This order was duly excepted to.
Evidence for the plaintiff was submitted. The jury found for the plaintiff in the amount sued for. The defendant moved for a new trial on the general grounds and on 19 special grounds. The motion was overruled. Error is assigned on the striking of the amendment to the answer and on the refusal of the court to grant a new trial.
The evidence was as follows: Bibb Chevrolet Company sold an automobile truck to Henry Newsome by a contract dated November 20, 1934, signed by both parties and providing that the purchaser had bought, and the seller had sold, one new Chevrolet truck, motor No. T-4615754, for a total price of $1,004.79, payable $300.15 in cash and balance of $704.64 payable at the offices of the General Motors Acceptance Corporation in equal monthly installments beginning December 20, 1934; that title should not pass to the purchaser until this amount was fully paid in cash, and, in the event the purchaser failed to comply with any condition of the contract, the full amount should be immediately due and payable; that the purchaser should not transfer any interest in the contract or the property; that the seller should have the right to enforce one or more remedies hereunder, successively or concurrently This contract was assigned by Bibb Chevrolet Company to General Motors Acceptance Corporation...
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