Sewell v. C.I.T. Corp.

• Decision Date: 15 July 1931
• Docket Number: 21447.
• Citation: 160 S.E. 99,43 Ga.App. 676
• Parties: SEWELL v. C. I. T. CORPORATION.
• Court: Georgia Court of Appeals

160 S.E. 99

43 Ga.App. 676

SEWELL v. C. I. T. CORPORATION.

No. 21447.

Court of Appeals of Georgia, First Division

July 15, 1931

Rehearing Denied Sept. 4, 1931.

Syllabus by Editorial Staff.

Trover by conditional vendor to recover property held not to constitute rescission, where contract authorized vendor to repossess and resell on default.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Action by the C. I. T. Corporation against Neer Sewell. Judgment for plaintiff, and defendant brings error.

Affirmed.

T. B Higdon, of Atlanta, for plaintiff in error.

Randolph & Woodruff, of Atlanta, for the State.

Syllabus OPINION.

BROYLES C.J.

1. "The rule that the bringing of a suit in trover by a vendor of property who has reserved title thereto in himself until payment of the purchase price, and his election to take the property itself, and his recovery of it, amount to a rescission of the contract of purchase, and that there can be no subsequent action for any further recovery, is not applicable to a case where the contract of sale contains a provision that if the note given for the purchase price of the property is not paid at maturity, the vendor is authorized to repossess himself of the property, to sell it for cash at public outcry, and to credit the proceeds from the sale on the note; and where the vendor, upon the failure of the vendee to pay the note at maturity, and upon the refusal of the vendee to give up the property, brings a suit in trover for the sole purpose of obtaining possession of the property, in order that he may sell it and credit the proceeds of the sale on the note; and where, prior to the hearing of the trover suit, the vendee returns the property to the vendor, and the vendor sells it at public outcry and credits the proceeds of the sale on the purchase-money note." Pannell v. McGarity, 27 Ga.App. 71, 107 S.E. 352; Fulghum v. General Motors Acceptance Cor., 30 Ga.App. 609 (1), 118 S.E. 600.

(a) The decisions in Glisson v. Heggie, 105 Ga. 30, 31 S.E 118, and the other cases cited by counsel for the plaintiff in error, are distinguishable, by the particular facts of those cases, from the above-stated ruling; and the request of counsel for the plaintiff in error, that the decisions in the Pannell and Fulghum Cases, supra, be reviewed and overruled is denied.

2. "Time is not generally of the essence of a contract; but, by express stipulation or reasonable construction [italics ours], it may become so." Civil Code (1910), § 4268 (8); Cone v. Hunter, 38 Ga.App. 45 (2), 142 S.E. 468. Under the ruling in the Cone Case, and the facts of the instant case, time was of the essence of the contract here involved.

3. This court, in Young v. Durham, 15 Ga.App. 678 (2), 84 S.E. 165, 166, held: "Where one sells to another personal property under a...