Roper Wholesale Grocery Co. v. Favor
| Decision Date | 06 September 1910 |
| Docket Number | 2,267. |
| Citation | 68 S.E. 883,8 Ga.App. 178 |
| Parties | ROPER WHOLESALE GROCERY CO. v. FAVOR. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The refusal to direct a verdict is not error in any case.
When a vendee is entitled to the possession of chattels, he may maintain trover for their conversion against either the vendor or third persons; and this is true, even though under the terms of a conditional sale the legal title to the chattels is reserved by the vendor. As against a vendor who has reserved the title, the vendee may maintain trover by showing that his right of possession is wrongfully withheld from him by the defendant. The gist of the action of trover is the injury to the right of possession. The action of trover being founded on a concurrent right of property and possession, any act of the defendant which negatives or is inconsistent with such right amounts in law to a conversion. Wherever there is a conversion, trover is the remedy; and, as against a wrongdoer, possession will be held to be conclusive evidence of such general or special property in the personalty as is essential to maintain trover.
Where in an action of trover, the plaintiff elects to take a money verdict, the suit resolves itself into one for damages; and if the proof shows that the interest of the plaintiff in the property is less than that of absolute ownership, the measure of damages will be the value of the plaintiff's interest therein, whatever that may be.
The evidence authorized the verdict, and there was no error in refusing a new trial.
Error from City Court of La Grange; Frank Harwell, Judge.
Action by J. D. Favor, as trustee, against the Roper Wholesale Grocery Company. From a judgment in favor of plaintiff defendant brings error. Affirmed.
E. R Bradfield, Jr., for plaintiff in error.
E. A Jones and Hatton Lovejoy, for defendant in error.
Favor, as trustee for R. L. Carter, bankrupt, brought a suit against the Roper Wholesale Grocery Company, by which he sought to recover certain personal property described in the petition, which it was alleged had been taken from the assets of the bankrupt by the defendant. Upon the call of the case the plaintiff abandoned that portion of the petition which sought to recover the property on the idea that by the delivery of the property the bankrupt had made a preference in violation of the bankrupt law, and the case proceeded to trial upon that portion of the petition which can very well be treated as an ordinary action of trover. The jury returned a verdict in favor of the plaintiff for $125.87, as the difference between the actual value of the property converted and the interest of the defendant therein under its reservation of title. The court refused a new trial, and exception is taken to this judgment.
There is conflict in the evidence; but, in view of the verdict, we must assume that the testimony for the plaintiff represents the truth of the transaction. According to this testimony, a representative of the Roper Wholesale Grocery Company took the property from the bankrupt without his consent. The goods and fixtures which were the subject-matter of the present suit were assigned to one Heard to pay a debt of $250, and the title to the personalty was passed by the writing, with a provision that any payments on it would reduce the debt evidenced thereby. This contract and assignment of title was transferred by Heard to the Roper Wholesale Grocery Company for a consideration of $245. The agreed valuation of the articles, title to which was conveyed to Heard, and by him transferred to the Grocery company, as evidenced by the writing, was $363. The conversion was shown to have occurred on January 28, 1908, which was the date upon which Mr. Carter testified that Roper took the property...
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