Opinion
35349.
DECIDED OCTOBER 1, 1954.
Complaint. Before Judge Parker. Fulton Civil Court. June 18, 1954.
Frank W. Brandon, Margaret Hopkins, for plaintiff in error.
Johnston Bell, contra.
The court did not err in overruling the demurrers, both general and special.
DECIDED OCTOBER 1, 1954.
General Finance Loan Company (whom we shall call the plaintiff) sued James f. Faust, Sr. (whom we shall call the defendant) on a petition, which as amended, omitting the formal parts, alleges:
"1. Your petitioner alleges that the defendant herein is a resident of Fulton County, Georgia and resides at 400 Merritts Avenue, N.E., apartment 3, Atlanta, Fulton County, and is within and subject to the jurisdiction of this Honorable Court.
"2. Your petitioner alleges that the defendant is indebted to it in the sum of $659.33, together with interest at the rate of 8% per annum from November 17th, 1953, which will be more fully hereinafter set forth.
"3. Your petitioner alleges that the defendant procured a loan from it on the 7th day of April, 1953 in the sum of $1,159.20 on a retention title contract and promissory note on one 1949 Ford convertible coupe, motor No. 98BA-586895, copy of the said retention title contract and promissory note is hereto attached and marked `Exhibit A' and made a part hereof.
"4. Your petitioner received payments on said contract during May, June and July of 1953, totaling $144.90. Thereafter your defendant became in default as to further payments.
"5. Your petitioner alleges that it sold the said automobile as provided in the said retention title contract and promissory note on November 17, 1953, for the sum of $250 said vehicle having been repossessed by your petitioner on or about October 24, 1953, and said amount is credited to defendant promissory note.
"6. Your petitioner alleges that they were able to receive $104.97 as a refund on an insurance policy that the said defendant was carrying on the car and they applied this to his account."
The petition prays for judgment in the sum of $659.33, with interest and costs in the proceeding.
The substance of Exhibit "A" is a regular retention of title executed in favor of Superior Motors (the seller of the car in question), setting forth a description of a 1949 convertible coupe, covering a balance due of $1,159.20, signed by "Jim Faust", together with all necessary documents appertaining thereto, among them being a conveyance without recourse by the seller to the plaintiff.
The defendant demurred to the petition generally in paragraph 1 as follows: "Defendant demurs generally to said petition as a whole, on the ground that it sets out no cause of action against this defendant."
Paragraph 4 reads: "Defendant demurs generally to plaintiff's petition, and moves to dismiss the same on the ground that the portion of the contract, Exhibit `A' of plaintiff's petition, sought to be enforced by means of this action, is unenforceable as being without consideration, and a penalty."
Paragraph 5 reads: "Defendant demurs generally to plaintiff's petition, and moves to dismiss the same on the ground that the contract sought to be enforced, Exhibit `A' to plaintiff's petition, shows on its face that it is a contract of bailment, and no facts are alleged in said petition or any portion thereof, giving plaintiff a right of action for any damages arising from such bailment."
Paragraph 2 of the special demurrer reads: "Defendant demurs specially to, and moves to strike, Paragraph 2 of said petition, on the ground that it represents a mere conclusion of fact on the part of petitioner, no facts being therein alleged, or alleged elsewhere in said petition, to show how said alleged indebtedness arose, or the basis thereof."
Paragraph 3 of the special demurrer reads: "Defendant demurs specially to, and moves to strike, Paragraph 5 of plaintiff's petition, on the ground that it sets up no accounting for the sale of said automobile, as required by law, and on the further ground that it represents a mere conclusion of the pleader, there being no facts alleged in said paragraph or elsewhere in said petition to show the reasonable market value of said automobile, and said allegation as to market value being irrelevant and immaterial to any issue involved in this cause."
We might here state that a section of the retention of title contract provides: "that vendor, or assigns, at its option, may, either with or without legal proceedings, retake possession of said property, in which case, payments made are to cover rental and depreciation of said car, or in case of said default vendor or assigns, may retake possession of said property as hereinbefore mentioned, sell the same either at public or private sale, and credit the within described note with the net proceeds of said sale, after deducting expense of selling, the balance remaining to be paid to undersigned, and the deficiency, if any, to be paid by undersigned."
The trial court overruled the demurrers, both general and special. On this judgment the defendant assigns error.
This case is somewhat analogous to Richardson v. C. I. T. Corp., 60 Ga. App. 78 ( 5 S.E.2d 250). In Barrett v. Distributors Group, 85 Ga. App. 529 ( 69 S.E.2d 810), the principles in the instant case, contested here by demurrers, are determined against the defendant. In the instant case the car was repossessed, sold, and all credits were properly given to the defendant on the note, and the suit is brought for a deficiency judgment according to the terms of the contract. The many decisions and Code sections called to our attention by counsel for the defendant (cited together) are not in point and do not sustain his contention in this case. They are Montgomery v. Hunt, 93 Ga. 438 (2) ( 21 S.E. 59); Irvindale Farms v. W. O. Pierce Dairy, 78 Ga. App. 670 (1) ( 51 S.E.2d 712); Davis v. Smith, 5 Ga. 274 (9) (47 Am. D. 279); Broxton v. Nelson, 103 Ga. 327, 330 ( 30 S.E. 38, 68 Am. St. R. 97); Carrig v. Gilbert-Varker Corp., 314 Mass. 351 ( 50 N.E.2d 59); Bianchi Bros. v. Gendron, 292 Mass. 438 ( 198 N.E. 767); Brenau College v. Mincey, 68 Ga. App. 137 ( 22 S.E.2d 322), and cases cited, p. 138; Tanner v. Mutual Benefit Bldg. Assn., 95 Ga. 528 ( 20 S.E. 499); Doebler v. Waters, 30 Ga. 344; Code § 20-304; Pepsi-Cola Co. v. Wright, 187 Ga. 723, 727 ( 2 S.E.2d 73); Miazza v. Western Union Tel. Co., 50 Ga. App. 521 ( 178 S.E. 764); Florence Wagon Works v. Salmon, 8 Ga. App. 197 ( 68 S.E. 866); Lytle v. Scottish American Mtge. Co., 122 Ga. 458, 466 ( 50 S.E. 402); Snook v. Raglan, 89 Ga. 251 (2) ( 15 S.E. 364); Glisson v. Heggie, 105 Ga. 30, 33 ( 31 S.E. 118); General Motors c. Corp. v. Coggins, 178 Ga. 643 ( 173 S.E. 841); Blevins Aircraft Co. v. Gardner, 66 Ga. App. 843, 846 ( 19 S.E.2d 350); Code § 14-502 (4); Barrett v. Distributors Group, 89 Ga. App. 458 ( 79 S.E.2d 587).
The petition sets out a cause of action, and the court did not err in overruling the demurrers, both general and special.
Judgment affirmed. Townsend and Carlisle, JJ., concur.