Opinion
35453.
DECIDED FEBRUARY 23, 1955. REHEARING DENIED MARCH 18, 1955.
Foreclosure, conditional sale. Before Judge Cooper. Augusta Municipal Court. September 29, 1954.
Hugh G. Head, Jr., Claud R. Caldwell, for plaintiff in error.
Max Rubenstein, Henry J. Heffernan, contra.
1, 2. In the present case, where the plaintiff sought to foreclose a conditional-sale contract covering a described automobile, the claimant, after admitting a prima facia case in the plaintiff, by first introducing evidence and assuming the burden of proof, failed to overcome by evidence the prima facie case admitted by him. Moreover, the record shows that the conditional-sale contract had a transfer in the name of the corporation; and, since the transfer by a proper officer or duly authorized agent was not denied on oath, this transfer was sufficient for reasons shown in the opinion. The trial judge, hearing the case without the aid of a jury, erred in rendering judgment for the claimant and in thereafter denying the plaintiff's motion for new trial.
DECIDED FEBRUARY 23, 1955 — REHEARING DENIED MARCH 18, 1955.
Home Finance Company brought an action in the Municipal Court of Augusta against Charles Edward Cooper to foreclose a conditional-sale contract. United Motor Sales interposed its claim and posted the proper bond.
The case came on for trial before the judge, without the intervention of a jury, on August 24, 1954. The claimant presented its evidence first. James W. Kinsey testified for the claimant as follows: Charles Edward Cooper came to the United Motor Sales on May 21, 1954, and wanted to trade a 1954 Buick for a 1953 Oldsmobile. Cooper produced a bill of sale showing that it had been purchased from the Walker Buick Company, Savannah, Tennessee, on May 7, 1954, for $4,186, and that it was paid for. It was paid for partly with cash and partly with the trade of a 1950 Cadillac. Kinsey telephoned to the Walker Buick Company, at Savannah, Tennessee, to ascertain whether or not the Buick automobile was clear. After making the telephone call, he traded with Cooper, Three days later on May 24, 1954, a Mr. Walker, the owner of Walker Buick Company, called him and advised him that the information furnished him on May 21, 1954, was erroneous, and there was a lien on the Buick automobile in favor of Home Finance Company, Montgomery, Alabama; on May 25, 1954, Home Finance Company instituted a mortgage foreclosure proceeding in the Municipal Court of Augusta, and the Buick was levied on while in the custody of United Motor Sales; and that he had filed a claim on behalf of the United Motor Sales, and posted a bond. The Buick automobile had remained in the custody of the claimant. On the trial, an invoice from Walker Buick Company to Eddie Cooper, dated May 7, 1954, was introduced in evidence, along with the bill of sale on the 1953 Oldsmobile to Cooper by the United Motor Sales, and check whereby $400 was paid by United Motor Sales to Cooper, representing the difference between the price United Motor Sales paid for the Buick and the price Cooper paid for the Oldsmobile. C. R. Wright testified for the plaintiff: He was assistant manager of Home Finance Company, Montgomery, Alabama. The conditional-sale contract was bought from Walker Buick Company. The transfer on the conditional-sale contract was made by the general manager of Walker Buick Company. Upon receiving information that Cooper had sold the 1954 Buick automobile to United Motor Sales, he caused a duplicate original to be recorded in Richmond County, Georgia. Home Finance Company, Montgomery, Alabama, was the holder and owner of the conditional-sale contract, covering the 1954 Buick automobile which is the subject matter of the action. A duplicate original of the conditional-sale contract was introduced in evidence. The same witness testified that the original conditional-sale contract had been sent to the proper office in Pass Christian, Mississippi, for recording, and the same had not been returned and was not instantly available. On August 28, 1954, after the trial but before judgment, the plaintiff, Home Finance Company, amended its original affidavit by substituting for the duplicate original of the conditional-sale contract a photostatic copy of the original, which shows that it was recorded in Richmond County, Georgia, on May 29, 1954. This amendment was allowed subject to objection, and none appears in the record. On September 2, 1954, judgment was entered for the claimant. The plaintiff filed a motion for new trial on the general grounds, which was denied, and the exception is to this ruling.
1. On the trial of the case, the first evidence introduced was by the claimant. In view of this order of introducing evidence, it must be treated as if the claimant assumed the burden of proof. Calhoun v. Williamson, 189 Ga. 65, 66 ( 5 S.E.2d 41). Therefore, the claimant having assumed the burden of proof, admitted a prima facia case for the plaintiff in fi. fa. Krasner v. Croswell, 76 Ga. App. 421, 422 ( 46 S.E.2d 207). Since the plaintiff alleged that Cooper was indebted to it on the conditional-sale contract, which was transferred to it by Walker Buick Company, this admission of a prima facia case necessarily meant that the claimant conceded that the plaintiff had a valid transfer of the conditional-sale contract under which the indebtedness was claimed. See Criswell Baking Co. v. Milligan, 77 Ga. App. 861, 870 ( 50 S.E.2d 136). It then devolved upon the claimant to show that he held a better title to the automobile than the plaintiff. The evidence shows a recordation of the conditional-sale contract within the time provided by law, and consequently constituted notice of the title claimed by the plaintiff from the date of the contract. Code § 67-108. Thereafter, any purchaser of the automobile bought at his peril. The evidence conclusively shows that the claimant purchased the automobile subsequently to the acquisition of title by the plaintiff; and in view of the timely recordation of the conditional-sale contract by the plaintiff, the claimant failed to overcome the prima facia case admitted by it. It follows that the court erred in rendering a judgment for the claimant, and in thereafter denying the plaintiff's motion for new trial.
2. There is another reason why the court erred in denying the motion for new trial. The instrument was transferred by the signing of a corporation's name, without the signature of an officer and without a seal. This indorsement was not denied on oath by the claimant and was presumptively sufficient. The proceeding was based on the transferred instrument. Code § 20-805. We see no reason why the rule applying to a defendant in such a case should not apply to a claimant. Such an indorsement as we have in this case is sufficient proof of the transfer unless the indorsement is specifically denied on oath. Sheffield v. Johnson County Savings Bank, 2 Ga. App. 221 (2) ( 58 S.E. 386); Kirby v. Johnson County Savings Bank, 12 Ga. App. 157 ( 76 S.E. 996).
Counsel for the defendant in error requested that this court order to be sent up the following: 1. The conditional-sale contract attached to the original affidavit of the plaintiff in error. 2. The car invoice from Walker Buick Company to Eddie Cooper, dated May 7, 1954. 3. The canceled check of United Motor Sales, No. 292, for $400, payable to and endorsed by Charles E. Cooper. 4. The bill of sale dated May 21, 1954, from United Motor Sales to Charles E. Cooper, covering a 1953 Oldsmobile Holiday automobile. But, since a reversal of the judgment is required independently of such documents, it is unnecessary to order them sent up.
Judgment reversed. Felton, C. J., and Quillian, J., concur.