Opinion
39307.
DECIDED FEBRUARY 6, 1962.
Trover, etc. Lowndes Superior Court. Before Judge Lilly.
Franklin, Barham, Coleman, Elliott Blackburn, W. Gus. Elliott, for plaintiffs in error.
Tillman Brice, contra.
1. A plaintiff is not required to plead evidentiary matter.
2. The petition contains sufficient allegations to authorize an amendment to perfect the petition.
( a) Where possession of personalty is obtained from the true owner by larceny, trover will lie to recover for such property from one who has obtained possession in good faith and for value.
DECIDED FEBRUARY 6, 1962.
George Y. Malone et al., partners doing business as Malone Motor Company, brought an action in trover against Tom Hewitt et al., doing business as Tom Hewitt Auto Auction, to recover the value of a described 1957 Ford automobile. The original petition alleged in part:
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That on March 4, 1957, one Haskell Bentley fraudulently obtained possession of one 1957 Fairlane automobile, Mtr. No. D7AT14412, the property of the plaintiffs, by delivering to a salesman of the plaintiff a check which was dishonored when presented for payment by the plaintiffs.
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That subsequent thereto on June 7, 1957, the said Haskell Bentley sold the said Ford automobile to a Mr. Jake Sanders of Lake City, Florida.
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That subsequent thereto on June 7, 1957, the defendants purchased the said automobile from the said Jake Sanders, took possession of it, and later, on or about the same date, sold and delivered it to Mr. D. W. Fletcher of Williston, Florida.
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That at the time the defendants took possession of said automobile, the said automobile had a market value of Two Thousand Nine Hundred dollars.
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By purchasing, taking possession of and disposing of said automobile which was the property of the plaintiffs and to which plaintiffs were entitled to possession, defendants converted plaintiffs' property. That prior to the institution of this suit, plaintiffs have made demand on the defendants for possession of said automobile or payment therefor, but the defendants have refused to comply with either demand."
Thereafter the plaintiffs amended their original petition by striking paragraphs 2, 3, 4, and 6, and inserting in lieu thereof other allegations, so that the petition as amended, as to material parts, read as follows: "2. That on Saturday, March 7, 1957, one Haskell Bentley, alias Sammy Smith, converted the property of plaintiffs, being one 1957 Ford Fairlane automobile Mtr. No. D7AT-14412, in the following manner: (a) On said date Haskell Bentley, representing himself to be "Sammy Smith," went to plaintiffs' place of business, an automobile sales lot, in Dothan, Alabama, and represented to a salesman an employee of plaintiffs, a Mr. Corbin Lively, that he Bentley as "Sammy Smith" was interested in purchasing said automobile; (b) said Bentley, as "Sammy Smith" represented to said Mr. Lively that he desired to use said automobile over the weekend for trial and approval of his wife in Troy, Alabama; (c) it was agreed that said Bentley should have the weekend use of said automobile for the purposes aforesaid and, further, that Bentley, as "Sammy Smith," should leave with Mr. Lively a check and return the following Monday or Tuesday to receive a bill of sale to said automobile if his wife approved the car and if his check had been paid; (d) Mr. Lively gave Bentley a memorandum stating that "Sammy Smith" was in possession of said automobile with the consent of Malone Motor Company, said memorandum being requested by said Bentley, "Sammy Smith" for his protection in driving the car to Troy, Alabama, there being no tag on said automobile and said Bentley, "Sammy Smith" having no title to said automobile; (e) said Bentley, "Sammy Smith" then drove said automobile away, and has never returned the same; (f) the check given to the Malone Motor Company signed by "Sammy Smith" under the arrangement between said Bentley and Lively, was to have been cleared by Malone Motor Company, plaintiffs prior to Bentley's return for the consummation of the sale of said automobile, but the same was dishonored and has not been paid. 3. That thereafter, on or about June 15, 1957, the defendants took possession of said automobile, and thereafter, on or about the same date, sold and disposed of the same. 4. That at the time defendants took possession of said automobile, the said automobile had a market value of Two Thousand Nine Hundred dollars. 5. By taking possession of and disposing of said automobile which was the property of the plaintiffs and to which the plaintiffs were entitled to the possession, defendants converted plaintiffs' property. That prior to the institution of the suit, plaintiffs have made demand on the defendants for possession of said automobile or payment therefor, but the defendants have refused to comply with either demand."
After the plaintiffs amended, the defendants demurred to the petition as amended, and in a separate motion sought to have the amendment stricken. The trial court overruled the defendants' demurrers and motion to strike, and to such judgment the defendants now except.
1. The defendants demurred specially to paragraphs 2 and 3 and the first sentence of paragraph 5 of the petition as amended as alleging conclusions without alleging facts to support them. The allegations complained of in paragraphs 2 and 3 were allegations of the ultimate facts to be proved, and how or why the check given by Bentley was dishonored, and how the defendants gained possession or how many other persons had possession of such automobile after the plaintiffs lost possession of it were not necessary averments since such allegations would be allegations of evidentiary matter which is not required. See Norman v. Norman, 99 Ga. App. 755, 759 ( 109 S.E.2d 900), and citations.
The allegation contained in the first sentence of paragraph 5 of the petition as amended, to the effect that the defendants, by taking possession of and disposing of the plaintiffs' property, were guilty of conversion, was not a conclusion but was only an allegation of an ultimate fact. The trial court did not err in overruling the special demurrers to the petition as amended.
2. The original petition sought to recover for the conversion of a described automobile by the defendants, and the amendment sought merely to amplify the original pleadings and did not seek to set up a new cause of action. The original action sought to recover from the defendants because they had converted the described property, and the amendment did not seek to change such cause of action but sought merely to amplify such allegations so that the duty not to convert as well as the actual conversion of the property would be shown, to wit, the duty, the breach, the damages. Assuming arguendo that the original petition was insufficient, yet if the amended petition was not subject to the defendants' general demurrer, no new cause of action being alleged, the motion to strike the amendment was properly denied. See Ellison v. Ga. R. Co., 87 Ga. 691 (6) ( 13 S.E. 809): "Enough to amend by in matter of substance, in aid of an incomplete cause of action, is the least amount of substance in a declaration which will serve to show that, according to the original design of the pleader, what is offered to be added rightly belongs to the cause of action which he meant to assert, and that the addition proposed would make the cause of action complete. There must be a plaintiff, a defendant, jurisdiction of the court, and facts enough to indicate and identify some particular cause of action as the one intended to be declared upon, so as to enable the court to determine whether the facts proposed to be introduced by the amendment are part and parcel of that same cause. Any amendment whatever which, if allowed, would leave the cause of action incomplete should be rejected."
"Where one who has no right of possession obtains possession of personal property through fraud, he can convey no title thereto, and a party who purchases the property from one in possession under such circumstances does not acquire title as against the true owner, and unless the true owner becomes estopped by conduct which leads the purchaser to believe that the person in possession had authority to sell, he may recover the property from the purchaser." Wyatt v. Singley, 103 Ga. App. 182 ( 118 S.E.2d 841). "If a person obtains possession of property of another by trick or fraud, or under false pretense of bailment, with intent to appropriate the property to his own use, and the owner intends to part with possession only of the property, the possession is obtained unlawfully, and the subsequent appropriation in pursuance of the original intent is larceny. Great American Ins. Co. v. Gusman, 80 Ga. App. 471 (1) ( 56 S.E.2d 319); Martin v. State, 123 Ga. 478 ( 51 S.E. 334); Kelley v. State, 24 Ga. App. 155 (2) ( 100 S.E. 23); McNatt v. State, 27 Ga. App. 642 (2) ( 109 S.E. 514); Kent v. State, 66 Ga. App. 147 (1) ( 17 S.E.2d 301)." Reserve Insurance Co. v. Interurban Transit Lines, ante.
The petition as amended alleged that Bentley, using a fictitious name, fraudulently obtained possession of the described automobile from the plaintiffs by posing as a prospective purchaser and giving a forged check. Under the decision in McElroy v. Williams Brothers Motors, Inc., 104 Ga. App. 435 ( 121 S.E.2d 917), Bentley was guilty of larceny (see Code §§ 26-2602, 26-2603), and since a thief can convey no title, having none to convey, the petition set forth a cause of action, and the defendants' general demurrer was properly overruled since the petition did not show a situation where a bona fide purchaser would be protected.
Judgment affirmed. Frankum and Jordan, JJ., concur.