Stanley v. Ellis

• Decision Date: 29 April 1948
• Docket Number: No. 31942.,31942.
• Citation: 47 S.E.2d 776
• Parties: STANLEY. v. ELLIS.
• Court: Georgia Court of Appeals

47 S.E.2d 776

STANLEY.

v.ELLIS.

No. 31942.

Court of Appeals of Georgia,

Division No. 1.

April 29, 1948.

Syllabus by the Court.

1. It is not necessary for the plaintiff in a trover action to prove a conversion where the defendant is in possession of the property sued for and claims title thereto adversely to the plaintiff.

2. Under the facts of this case the jury was authorized to find that the defendant did not acquire title to the automobile sued for at a sheriff's sale under the foreclosure of a written retention-of-title contract as a mortgage, for the reason that it was authorized to find that the purchaser under the instrument did not have such possession of or title to the property at the time of the execution of the instrument as would prevail over the owner's rights under a parol retention-of-title agreement, under which no title or possession had passed at the time of the execution of the written retention-of-title contract.

Error from Superior Court, Whitfield County; J. H. Paschall, Judge.

Trover action by Chester Ellis against M. V. Stanley to recover an automobile. To review an adverse judgment, the defendant brings error.

Judgment affirmed.

Chester Ellis brought an action in trover against M. V. Stanley to recover a certain Dodge automobile which Stanley had purchased at a sheriff's sale upon the foreclosure of a mortgage by the National Discount Company against Earl Ellis, unrelated to Chester Ellis. The jury returned a verdict for the plaintiff awarding him the automobile, but refused any hire. The defendant made a motion for a new trial on the general grounds, which the court overruled and the defendant excepted.

D. W. Mitchell and Walter H. Boiling, both of Dalton, for plaintiff in error.

C. H. Dalton, of Dalton, for defendant in error.

FELTON, Judge.

1. The defendant urges that the court erred in overruling his motion for a new trial since the plaintiff made no demand on him for the automobile. In his answer, the defendant admitted possession of the automobile. "In a trover case, demand and refusal are necessary only as evidence of conversion, and need not be proved where conversion is otherwise shown, " Hicks v. Moyer, 10 Ga.App. 488(4), 73 S.E. 754; Merchants & Miners Transportation Co. v. Moore & Co., 124 Ga. 482, 52 S.E. 802; Securities Trust Co. v. Marshall, 30 Ga.App. 379, 118 S.E. 478, and it is not necessary to prove conversion of the property where the defendant is in possession when the action is brought, and in his answer denies the allegations of the plaintiff's title. Code, § 107-101; Scarboro v. Goethe, 118 Ga. 543, 45 S.E. 413.

2. The only question remaining for determination is whether or not there was any evidence to authorize the verdict for the plaintiff. Leonard Durham testified that he sold the plaintiff the automobile in question on October 7, 1946, and further stated: "I was working with Earl and Chester down at the cab stand during the time the car was changing hands. Yes, I have seen Earl driving the car. As to how Earl got hold of the car; well, the only thing I know, Mr. Ellis sold the car to him, sold this car to Earl Ellis. I wasn't there when the trade was made, or anything I heard Mr. Ellis say he had sold it to Earl Ellis. I don't know about the trade, I don't know what kind of a trade they made. I don't know the details of the sale, but he was driving it. When I was asked a while ago if Mr. Ellis told me he sold it to Earl Ellis and I shook my head 'yes'; well, I believe he did tell me that. * * * as to whether or not he ever delivered the car to Earl Ellis, or whether Earl Ellis ever had the car to my knowledge; well, he just drove it on the taxi line; I don't know how it was. * * * As to whether or not Earl Ellis ever carried this particular car away from there to keep; well, I don't know about that. The best I can remember the car was there practically all the time. * * * " A second witness, Albert Hodge, attorney at law, testified that on November 3, 1946, he had adjusted an insurance claim with Chester Ellis concerning an accident in which the automobile in question in the present case had been involved. Chester Ellis testified in part: " * * * I never sold it to him; we did have a verbal agreement just between the two of us, but as far as surrendering the automobile to him, I never at no time surrendered the title to him. As to what my verbal agreement consisted of with Earl Ellis; well, at the time I traded with Durham, I had three or four cars down there, pretty hard to get drivers, unless you got them kindly obligated, so they would stay, always knocking down everything. Earl, he hung around for about a week, driving other cars, so one day I went to the show, I had priced the car to a number of comers and goers I had been talking to, but I believe it was on Friday I went to the show; when I come out the phone boy then in charge of the lot, he told me Earl had been there, and when he come back he said, yes, been up to see one of his houses, going to come back and buy the car, I believe he offered to pay me for the trip, but anyhow then the following day he come up with a check for $600; that was on Saturday, I am pretty sure, since the banks was closed; he told me he would have to go to Ellijay, somewhere, to get the rest of the money; if I would accept the check for a portion of the money to secure the car while he was gone over there, he would drive the car, so I took the check. * * * I believe I did at the time give him a receipt. [A receipt from Chester Ellis to Earl Ellis for $600 as partial payment on a Dodge taxie, bearing date of October 12, 1946, was introduced in evidence.] So,...