Wilmerding v. Rhodes-haverty Furniture Co

• Decision Date: 06 March 1905
• Citation: 50 S.E. 100,122 Ga. 312
• Parties: WILMERDING. v. RHODES-HAVERTY FURNITURE CO.
• Court: Georgia Supreme Court

122 Ga. 312

50 S.E. 100

WILMERDING.

v.RHODES-HAVERTY FURNITURE CO.

Supreme Court of Georgia.

March 6, 1905.

CONDITIONAL SALE—CONTRACT—DEFAULT—POSSESSION OF PROPERTY—TRESPASS.

1. Where a vendor sells certain personal property, to be paid for in installments by the vendee, and enters into a written contract with the vendee retaining the title to the property with a stipulation in the contract, that if any of the installments are not paid, the vendor "shall have the right to take possession of the property without any legal process, and all payments made up to the time of default shall be applied as rent for said property and depreciation in value, " and the vendee defaults as to some of the payments and dies, the vendor is not guiltyof a trespass if he seizes and removes the property while in the hands of the administrator of the vendee.

[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, § 1425.]

2. According to the terms of the contract the title to the property was in the vendor, and he had the right, under the contract, to remove it, in case of default, without any legal process. The administrator had no more title than the vendee.

3. Whether the stipulation in the contract as to rent is reasonable is not in the case. That part of the declaration was stricken on demurrer, and this ruling was not excepted to by the plaintiff.

(Syllabus by the Court.)

Error from City Court of Atlanta; A. E. Calhoun, Judge.

Action by W. E. Wilmerding, administrator, against the Rhodes-Haverty Furniture Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Bishop & Ripley, for plaintiff in error.

Dorsey, Brewster & Howell and Hugh M. Dorsey, for defendant in error.

SIMMONS, C. J. Judgment affirmed. All the Justices concur.