Thomason v. Moore

• Decision Date: 23 January 1913
• Citation: 139 Ga. 341,77 S.E. 155
• Parties: THOMASON. v. MOORE.
• Court: Georgia Supreme Court

77 S.E. 155

139 Ga. 341

THOMASON.

v.MOORE.

Supreme Court of Georgia.

Jan. 23, 1913.

(Syllabus by the Court.)

1. Sales (§ 469^*)—Conditional Sales—Construction of Contract.

The purchaser of a diamond ring executed a written instrument, describing the ring and reciting its purchase "for the agreed value of $220.00, two hundred and twenty dollars, " payable as follows: "$20.00 in cash and one note of $200.00 due June 17, 1911." By the terms of the instrument the purchaser also acknowledged receipt of the ring, and stipulated that title to it should remain in the seller "until above amounts have been fully paid, " and, should default be made in any of the payments, then the entire amount to fall due at the option of the seller, who should also have the privilege "of retaking possession, and any and all amounts paid on same to be applied as for rent and use." As a part of the same transaction the purchaser also delivered to the seller a promissory note for $200 principal, besides interest from date, signed by other persons, payable to himself, due June 17, 1911, and by him indorsed in blank. This was the note referred to in theinstrument by which title was reserved in the seller. Held, under a proper construction of the instrument, title to the ring was reserved in the seller until payment of both the $20 and the note due June 17th. Mere delivery of the note did not constitute payment pro tanto of the purchase price of the ring.

[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1357; Dec. Dig. § 469.^2-*]

2. Evidence (§ 400*)—Parol Evidence Affecting Writings—Admissibility.

On the trial of a bail trover suit for the ring, instituted by the seller against the purchaser after maturity of the note and default in its payment, it was not error to exclude testimony as to conversations between the parties, both before and at the time of execution of the instrument reserving title in the seller, which tended to contradict its terms. "

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1778-1793; Dec. Dig. § 400.*]

3. Sales (§ 479*)—Conditional Sales—Remedies of Seller—Amount of Recovery.

In such an action, the plaintiff having elected to take a money verdict, the damages recoverable could not exceed the unpaid balance of the principal debt and interest thereon. Bradley v. Burkett, 82 Ga. 255 (2), 11 S. E. 492, and citations; Ross v. McDuffie, 91 Ga. 120, 16 S. E. 648; Fussell v. Heard, 119 Ga. 527, 46 S. E. 621.

(a) If this ruling in any manner conflicts with that made in Moultrie Repair Co. v. Hill, 120 Ga. 730 (5), 48 S. E. 143, that ruling must yield to those made in the earlier decisions.

[Ed. Note.—For other eases, see Sales, Cent. Dig. §§ 1418-1438; Dec. Dig. § 479.*]

4. Appeal and Error (§ 1140*)—Affirmance on Condition—Remission.

The verdict was in favor of the plaintiff for a stated amount as principal and another stated amount as "hire." The amount in the verdict as principal was the correct balance of principal due under the contract of purchase, while the amount of "hire" specified exceeded the interest recoverable on the principal. The proper amount of interest being ascertainable as a matter of law and by mere calculation, following the ruling made in Seaboard Air Line Ry. v. Bishop, 132 Ga. 71, 63 S. E. 785, direction is given that if, within 30 days after the return of the remittitur to the trial court, the plaintiff shall write off from the verdict $60.91, thus reducing the total amount found in favor of the plaintiff to $229.09, which equals the principal sum found due, plus interest...