Sylvester Motor & Tractor Co., Inc. v. Farmers Bank of Pelham

Citation153 Ga.App. 614,266 S.E.2d 293
Decision Date29 April 1980
Docket NumberNo. 58638,58638
CourtUnited States Court of Appeals (Georgia)

Henry C. Custer, Albany, for appellant.

Bruce Kirbo, Ralph C. Smith, Jr., Bainbridge, Fred B. Hand, Jr., Pelham, for appellees.


Tillman Dean purchased a tractor from an International Harvester dealer, Faircloth International, Inc. (Faircloth) and gave a security agreement and bill of sale to Production Credit Association as security for a loan of the purchase price. Four days after the sale Faircloth borrowed the tractor from Dean for demonstration purposes; unknown to Dean, Faircloth transferred the tractor to appellant (Sylvester), another International Harvester dealer, without informing appellant the tractor had been sold to Dean. Subsequently, Production Credit Association transferred the security agreement and bill of sale to the Farmers Bank of Pelham. On hearing that the tractor was in Sylvester's possession the bank told Dean to pay the amount of the loan or get the tractor back from Sylvester. On Dean's failure to meet the bank's request, the bank filed this action for a writ of possession against Dean, Sylvester and Faircloth. During the hearing without a jury the trial court ordered that the tractor be brought to the court; this was done without objection. At the conclusion of the hearing the trial court orally denied the bank's request for a writ of possession; found that Sylvester had no legal right to the tractor; and ordered possession of the tractor vested in Dean. However, in the written order, the court granted the bank's request for a writ of possession as to Faircloth and Sylvester. Thus, all parties are back in their original position. International Harvester agreed to indemnify Sylvester for any loss it might incur if it lost possession of the tractor, so Sylvester has not been harmed in any way.

1. Sylvester's first enumeration of error, that the trial court erred in ordering the tractor in dispute brought to the court during the hearing on the writ of possession, is without merit. Sylvester made no objection to the trial court's order and it is well settled that this court will not consider questions raised for the first time on appeal. Foster v. Continental Cas. Co., 141 Ga.App. 415, 416, 233 S.E.2d 492 (1977). In connection with this same enumeration, Sylvester contends that it should remain in possession of the tractor because Dean "entrusted" the tractor to Faircloth within the meaning of Code Ann. § 109A-2 403. This contention also is without merit. Dean did not entrust the tractor to Faircloth to sell ; he let Faircloth borrow the tractor for demonstration purposes at Faircloth's request. While the transfer of the tractor from Faircloth to Sylvester was not in the usual form of a sale, it was a sale under Code Ann. 109A-2 106(1). Even if Faircloth had been entrusted with the tractor he did not have the power to transfer to Sylvester since Sylvester was not a buyer in the ordinary course of business as contemplated by Code Ann. § 109A-2 403(2). See Mattek v. Malofsky, 42 Wis.2d 16, 165 N.W.2d 406; Tumber v. Automation Design & Mfg. Corp., 130 N.J.Super. 5, 324 A.2d 602.

Code § 109A-2 403(2) protects a buyer in the ordinary course of business. Appellant cites Simson v. Moon, 137 Ga.App. 82, 222 S.E.2d 873 (1975) as authority for the proposition that Sylvester should be protected as the purchaser where the tractor was entrusted to Faircloth. The case is distinguishable, however, in that the purchasers in Simson v. Moon were individual consumers in the ordinary course of business and not dealers charged with a stricter standard of conduct. Sherrock v. Commercial Credit Corp. (Del.Super.) 277 A.2d 708 (1971).

2. In Sylvester's second enumeration of error it contends the trial court erred in finding there were no issues of fact which would require a jury trial. However, Sylvester stated to the court that the only issues in the case were whether there was an entrustment of the tractor by Dean to Faircloth, and whether there was a valid sale by Faircloth...

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3 cases
  • Sumner v. Fel-Air, Inc., FEL-AI
    • United States
    • Supreme Court of Alaska (US)
    • 16 Marzo 1984
    ..."entrustment" has occurred. Certain forms of bailment may also be outside UCC 2-403's scope. See Sylvester Motor & Tractor Co. v. Farmers Bank of Pelham, 153 Ga.App. 614, 266 S.E.2d 293 (1980) (buyer returns tractor to dealer who borrowed it for "demonstration" purposes, dealer sells tracto......
  • Perez-Medina v. First Team Auction, Inc., PEREZ-MEDINA
    • United States
    • United States Court of Appeals (Georgia)
    • 1 Diciembre 1992
    ...the merchant-seller, or that sale of the goods was not authorized by the entruster); compare Sylvester Motor, etc., Co. v. Farmer's Bank of Pelham, 153 Ga.App. 614, 615, 266 S.E.2d 293 (1980) (although noting the goods were not "entrusted" to the dealer for sale, the holding appears to ulti......
  • Perimeter Ford, Inc. v. Edwards, A90A0958
    • United States
    • United States Court of Appeals (Georgia)
    • 14 Noviembre 1990
    ...or leased in the course of United's business. Simson, supra 137 Ga.App. at 85, 222 S.E.2d 873; compare Sylvester, etc., Co. v. Farmers Bank, 153 Ga.App. 614, 615(1), 266 S.E.2d 293 (1980). Appellant's contentions that it did not entrust the car to United to be sold as a new car and that pro......

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