Opinion
31300.
DECIDED JULY 10, 1946.
Trover; from Fulton Civil Court — Judge McClelland. April 13, 1936.
James H. Dodgen, for plaintiff in error.
Frank A. Bowers, contra.
Under a conditional-sales contract the vendor has a right to the possession of the property sold, when the buyer fails to pay therefor, and may maintain an action of trover to recover possession of the property from one in possession thereof.
( a) The judgment of the judge trying the case without a jury is supported by evidence and will not be disturbed by this court.
DECIDED JULY 10, 1946.
D. M. Crawley sued Howard Stanfield and J. C. Stanfield in trover in the Civil Court of Fulton County. The petition alleged in substance that the defendants were in possession of a certain automobile, of the value of $432, to which the plaintiff claimed title or a valuable interest therein and the right to possession thereof. Howard Stanfield answered, denying the allegations of the petition, and setting out that he had purchased the automobile from the plaintiff, paying him $265 on the purchase-price and leaving a balance due of $185, that the automobile was worthless and not suited for the purpose intended, and he sought to recover a judgment against the plaintiff for $265.
On the trial before the judge without a jury, the plaintiff testified in part: "As to this conditional-sales contract with note attached that you hand me, also recording form bearing the notation `recorded in book 1469, page 511,' that is the Plymouth car that I sold Mr. Stanfield. . . I delivered the automobile described in this note to Howard Stanfield, the same automobile described here. Neither J. C. Stanfield nor his brother Howard paid the note. They paid something on the note. They lacked a balance of $432. . . I own the note now." The defendant, Howard Stanfield, testified in part: "I signed this note, this contract."
The court entered judgment in favor of the plaintiff for $350 and costs, and the exception here is to the judgment overruling the defendant's motion for a new trial.
The plaintiff in error contends that the judgment is without evidence to support it, in that there is nothing in the record to authorize a finding that the defendant in error claimed title or any interest in the property sued for in the present action. While the defendant in error in his brief filed in this court states unequivocally that the conditional-sales contract was placed in evidence, this contract does not appear in the brief of evidence. It is well settled that, in case of a conflict between the recitals of fact in the brief of counsel and the facts as disclosed by the brief of evidence in the record, the brief of evidence controls.
The parol evidence was uncontroverted that the defendant purchased the automobile in question from the plaintiff under a conditional-sales contract, and the evidence authorized a finding that the purchase-price of the automobile had not been paid and was in default at the time of the institution of the trover proceedings. It is well-settled law that, where property is conveyed by a conditional-sales contract, the vendor retains title thereto until the purchase-price is paid and that, in case of default in the payment of the purchase-price, the vendor, or the holder of the conditional-sales contract, may maintain trover to obtain possession of the property from one in possession of the same. In this connection, see the Code, §§ 67-1401, 107-102; Scott v. Glover Co., 7 Ga. App. 182 (2) ( 66 S.E. 380); Spiers v. Hubbard, 12 Ga. App. 676 ( 78 S.E. 136), and citations; Wilson v. Owen, 19 Ga. App. 159 ( 91 S.E. 233).
The judgment of the judge trying the case without a jury is supported by evidence and will not be disturbed by this court.
Judgment affirmed. Felton and Parker, JJ., concur.