McEntyre v. Burns

• Citation: 81 Ga.App. 239,58 S.E.2d 442
• Decision Date: 14 March 1950
• Docket Number: No. 32713,No. 2,32713,2
• Parties: McENTYRE v. BURNS et al
• Court: Georgia Court of Appeals

Page 442

58 S.E.2d 442

81 Ga.App. 239

McENTYRE v. BURNS et al.

No. 32713.

Court of Appeals of Georgia, Division No. 2.

March 14, 1950.

Rehearing Denied March 27, 1950.

Syllabus by the Court

1. The due filing for record of a valid title retention contract properly describing an automobile and stating the motor number affords good constructive notice of the instrument to a subsequent purchaser of the automobile, even though the motor number of the automobile may be erroneously recorded or not recorded at all.

(a) Where such an instrument is duly filed an assignee or transferee thereof will not lose priority over a subsequent purchaser even though the assignment or transfer of such instrument is not recorded or filed for record as was in fact done in the present case.

2. Since the evidence showed that the parties to the present litigation were claiming under a common grantor, it was not necessary to show title in such common grantor.

3. There being evidence on behalf of the plaintiffs that the automobile sued for was of the market value of $1,900 at the time of its conversion, and the only other evidence as to value being from the defendant who admitted that the market value was $1,875 at such time, and the plaintiffs having elected to take a money verdict for the value of the car at the time of the conversion, plus interest at 7 per cent. per annum, and having a claim of only $1,650 against the car, to which amount they were limited in recovery, the direction of a verdict for $1,702.14, the amount of such claim plus interest, being less than the amount the defendant admitted the car to be worth at the time of conversion, the verdict was not harmful to the defendant as to the amount and he can not complain in that respect.

4. The evidence showing conclusively that the automobile in the possession of the defendant was the identical one to which the plaintiffs held title, the fact that in the trover action the petition referred to the motor number as DAA409521 and the evidence showed it to be DAA-409521 would not require a reversal of the judgment on the theory that the case was not proved as laid, since the defect, if any, was amendable and was cured by the verdict and judgment.

5. The evidence showed conclusively the domicile and residence of the persons, who purchased the car in question from a dealer in Gainesville, Georgia, while they were temporarily sojourning in Hiawassee, Towns County, Georgia, to be in College Park, Clayton County, Georgia, and accordingly the title retention contract executed by such purchasers to the seller, together with the transfer or assignment of the instrument to the plaintiffs, was properly filed for record in the office of the clerk of the Superior Court of Clayton County, Georgia.

Hubert M. Burns and Minnie J. Burns, doing business as Motor Finance Company, brought an action of trover in the Superior Court of Cobb County, Georgia, on September 24, 1948, against Bob McEntyre to recover one 1946 Chevrolet Tudor Sedan, motor No. DAA409521, license plate 12,978 E. S. Georgia, of the value of $1,650, to which the plaintiffs claimed title.

The defendant filed an answer, denying that he was in possession of the described automobile, but setting up that he was in possession of one '1946 Chevrolet Tudor Sedan, motor No. DAA-409521, license plate 12,878 E. S.,' which had not been demanded of him, that he purchased the said car in good faith and paid the full value thereof to the seller, and had no notice, knowledge or information of any kind that anyone had any right, title or interest therein except the person from whom he bought.

Upon the hearing the plaintiffs elected to take a money verdict for the value of the automobile as of September 24, 1948, with interest thereon at 7 per cent. per annum.

The evidence may be sufficiently stated as follows:

Hubert M. Burns, J. testified: 'I am the son of the plaintiffs in this case. * * * I am familiar with the automobile which is the subject of litigation in this case. The business of the Motor Finance Company is the financing of automobiles, and we discount automobile paper from dealers. This car in question was a blue '46 Aerial Chevrolet Sedan. My company took a paper on that car from C. V. Nalley at Gainesville. He had sold it to Mr. and Mrs. Brownagle. I note a conditional sales contract which you exhibit to me dated July 6, 1948, signed by Mrs. Irene Brownagle and Mr. Brownagle and payable to C. V. Nalley. That is the conditional sales contract under which that car was sold by Nalley & Company to Mr. and Mrs. Brownagle, and our company purchased the contract from C. V. Nalley & Company. I also note the conditional sales contract describing the same car and signed by the same parties, showing a transfer to the Motor Finance Company. This was also executed on the car and was recorded. This is also signed by Mr. and Mrs. Brownagle. I also note the assignment slip or note executed on July 6, 1948, to C. V. Nalley & Company by Mr. and Mrs. Brownagle, and I will state that this is a part of the same transaction. Under the original contract which we purchased from C. V. Nalley & Company the car sold for the sum of $1700, payable in instalments of $150 each, and I will state that none of those instalments had been paid when our company purchased this paper from C. V. Nalley & Company. I believe the first instalment was met by the purchaser and that was paid to Motor Finance Company, but when the second instalment became due it was not paid. Then we unertook to locate Mr. Brownagle and the automobile. We located Mr. Brownagle in Clayton County, and we didn't find the car that night, but we located it the next day. It was at East Point, Georgia, in the possession of Mr. McEntyre, the defendant in this case. * * * I told Mr. McEntyre that I had a contract against the automobile and I demanded the car, and he said he would not turn it over to me. I saw the car at that time, and it was the same car on which we had bought the paper from Nalley & Company. * * * I asked him for it twice. * * * I am familiar with the market value on automobiles, and I was familiar with such values in July of 1948 and in September, 1948. I have been in this automobile business about fifteen years. In my opinion this 1946 Chevrolet Sedan in July, 1948, had a market value of $2195, and that on September 24th and 25th, 1948, it had a market value of $1900. This automobile was in excellent condition at the time we bought this paper from Nalley & Company. * * * Our company had $1640 in the car. That was September 24, 1948. We are electing to take a money verdict in this case and asking interest on that amount from the date of the trover action. * * * The car was worth $1650 and I also swear it was worth $1900, but, as I said, the $1650 was enough to cover our note. * * * I was present when Brownagle bought this car from C. V. Nalley. * * * I don't know now what that motor number is, but I knew the number at the time we drew these papers. * * * I raised the hood on that automobile to see this number. I checked it myself. That car is worth $500 or $300 or $100; any amount from $1900 down that car is worth it. * * * In this case we wanted what was due us, and that was the reason we made the bond $1650. * * * By placing this valuation at $1650 we enabled the defendant to give a smaller bond.'

Mrs. C. J. Brownagle testified: 'My husband and I purchased this car from the C. V. Nalley Company in July, 1948. I reside at 601 Washington Street, College Park, Clayton County, Georgia. I was living there in July of 1948, and in September of 1948. C. J. Brownagle also lived in Clayton County in July of 1948 and in September of 1948. Mr. Brownagle and I bought this car jointly. He was a co-signer. [At this point the witness identified her signature and that of her husband, C. J. Brownagle, to the conditional sales contract dated July 6, 1948, note for $1790 and transfer slip, all of which were in connection of the purchase of the car from C. V. Nalley & Company.] * * * I did not know about the sale of the car at the time. I was out of town and out of the State. * * * When I came back then I found out that he had sold the car to these people, that is, Mr. Brownagle had sold it to Mr. McEntyre, and Mr. Brownagle needed money. I first saw Mr. McEntyre personally in the office of Hebert Ringel in Atlanta, and Mr. Benson and Mr. McEntyre and Mr. Brownagle were present there. Mr. Ringel represented Mr. Brownagle as attorney. The conversation that took place there between Mr. McEntyre and me and these other gentlemen in Mr. McEntyre's presence was that they would give him a little bit of time. They had served Mr. Brownagle with some kind of claim, and they would give him time to raise the balance of the money that was short in the bank at that time. At that time my husband had given Mr. McEntyre a check. I note the check which you exhibit to me, dated October 7, 1948, for the sum of $1200 payable to cash and signed by C. J. Brownagle and endorsed by Robert McEntyre. That is the check my husband gave Mr. McEntyre. That represents a part of the money that Mr. Brownagle was paid for this care and that he paid to Mr. McEntyre. * * * As to whether or not I remember how much more I gave hom--well I gave him my two rings for $546, and I signed a note, a bill of sale or a mortgage note * * * and to secure that note I put up as a plege or deposit my engagement and wedding ring. I see the entry on the note there, 'Paid, December 2, 1948,' signed by A. J. Benson. That is the date on which this note was paid. Mr. Brownagle has paid McEntyre and Benson the sum of $1746.50 as repayment to them of the money they put in the car, and they were to pay the Motor Finance Company the balance due them and keep the car. I called Mr. McEntyre and had a conversation recently over the telephone. * * * I had heard his voice before and I recognized it over the telephone as his voice. I asked him what...