Opinion
36186.
DECIDED JUNE 14, 1956.
Trover; money judgment. Before Judge Rees. Macon Superior Court. January 23, 1956.
A. C. Felton, III, for plaintiff in error.
H. Thad Crawley, contra.
The trial court did not err in denying the defendant's amended motion for new trial.
DECIDED JUNE 14, 1956.
C. R. Simmons brought an action in trover against Herbert Hogg in which he sought to recover a money judgment for two described pieces of farm machinery. The material evidence presented on the trial of the case was as follows: The plaintiff testified that he had sold the defendant one of the pieces of machinery, that the defendant had paid a part of the purchase price and signed a bill of sale to secure debt on which at the time of the institution of the trover suit there remained an unpaid balance including interest to the date of suit of $199.19, that this bill of sale was not recorded and the indebtedness has not been paid, that he also sold the defendant the other piece of machinery, that no written contract was signed, that the defendant took delivery of this piece of machinery and promised to come back and sign a conditional-sale contract, that he did not come back and sign the contract, that the parties agreed that the title to this piece of machinery was to remain in the seller until the purchaser paid the purchase price, that title to both pieces of machinery was in the plaintiff, that a demand for the purchase price had been made upon the defendant, that a demand for the property had been made, that both demands had been refused, that title to the property was in the plaintiff, and that the value of the property was $1,365.17, the balance due. The bill of sale to secure debt covering the first piece of machinery referred to was introduced in evidence as well as a bill of sale to the plaintiff covering the second piece of machinery.
The defendant testified that he bought the first piece of machinery referred to from the plaintiff and signed the bill of sale introduced in evidence, that he and his brother purchased the second piece of machinery referred to from the plaintiff, but that no agreement was made that title to this property was to remain in the seller, that the full purchase price had not been paid, that both pieces of machinery were in his possession at the time the action was brought, that he had gone to the Montezuma Banking Company and secured a loan and given the bank a bill of sale to secure debt which covered the two pieces of machinery, that the loan had not been repaid, and that title to the two pieces of machinery was in the bank.
The defendant unsuccessfully sought to introduce in evidence a certified copy of the bill of sale to secure debt from him to the bank when the plaintiff's objection to the introduction of this evidence was sustained.
The trial judge hearing the case without the intervention of a jury rendered a money judgment in favor of the plaintiff in the amount of the value of the property. The defendant filed his motion for new trial on the usual general grounds which he later amended so as to include one special ground, to wit: That the trial court erred in rejecting the certified copy of the bill of sale to secure debt from the defendant to the Montezuma Banking Company. The trial court denied the defendant's motion for new trial as amended and it is to this judgment that the plaintiff excepts.
1. Where a vendee under a conditional-sale contract places the property covered by the contract in the hands of a third party where it cannot be reached by the vendor in a trover action it will not prohibit the vendor from recovering a money judgment from the vendee in a trover action. Thompson v. Carter, 6 Ga. App. 604 (3) ( 65 S.E. 599); Sims v. Nelson, 31 Ga. App. 271 (2) ( 121 S.E. 863). "Where the vendee under a conditional sale wrongfully converts the property before discharging the purchase-money note reserving title thereto, by selling it under circumstances such as would protect an innocent purchaser, the legal title does not really pass out of the vendor by reason of the vendee's wrongful act, although he can not assert it as against the equity of the innocent purchaser." Georgia Casualty Co. v. McRitchie, 45 Ga. App. 697, 702 ( 166 S.E. 49).
The bill of sale to secure debt which the defendant sought to introduce in evidence would not have shown such title in a third party as would have defeated a recovery by the plaintiff. If the title to the property was in the plaintiff, then this transfer would have shown a conversion on the part of the defendant, and if the title was in the defendant prior to this transfer it would not aid his defense to show that he had sold what was rightfully his. Therefore, there is no merit in this special ground of the motion for new trial.
2. Inasmuch as the plaintiff in error neither argued nor insisted upon the general grounds of the motion for new trial they are treated as abandoned.
The trial court did not err in denying the defendant's motion for new trial.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.