Summary
In Trusco Finance Co. v. Childs, 87 Ga. App. 789, 75 S.E.2d 336, an incorrect motor number, not even vaguely resembling the true number, was inserted in a conditional sale contract covering an automobile.
Summary of this case from Vicars v. Discount CompanyOpinion
34394.
DECIDED MARCH 14, 1953.
Complaint; from Stephens Superior Court — Judge Frankum. October 13, 1952.
O. J. Tolnas, McClure Ramsay, for plaintiff in error.
Frank C. Gross, Ollie Mae Stowe, contra.
It was a question for a jury whether, under the facts of this case, the recorded title-retention contract relied on constituted constructive notice to the defendant in error that the title to the automobile bought by him remained in the plaintiff in error. The court erred in sustaining the general demurrer and in dismissing the action.
DECIDED MARCH 14, 1953.
Trusco Finance Company sued Ty Childs, trading as Childs Motor Company, for the value of a certain automobile. The petition alleged in substance the following: that on or about February 15, 1952, the defendant came into possession of a "4 Dor Ford Custom Automobile, year model 1950, motor number 164514," having received the same from one Paul Whitehead; that said automobile was on December 26, 1951, sold and delivered by Meyers Motor Company, of Hart County, Georgia, to said Paul Whitehead, on a conditional-sale contract, a copy of which, together with the note therein described and the recording slip, is attached to the petition, marked respectively exhibits A, B, and C, the original contract, note, and recording slip having been at the time of said sale executed by Paul Whitehead to Myers Motor Company; that the defendant at the time of taking possession of the automobile had constructive notice of the conditional-sale contract by virtue of the recordation of the said recording slip; that on December 26, 1951, for a valuable consideration the said Myers Motor Company transferred and assigned the contract, note, and recording slip to the plaintiff, and the plaintiff is now the legal title-holder of said automobile; that the defendant after getting possession of the automobile, without the knowledge and consent of the plaintiff, disposed of same beyond the limits of the State and placed same beyond the reach of legal process in the State of Georgia; that the plaintiff has made demand upon the defendant for the automobile, and the defendant has failed and refused to deliver it to the plaintiff; that the value of the automobile is greater than $1111, which amount is due the plaintiff under the terms of the conditional-sale contract; that through error the motor number of the automobile was entered in said contract as "827525" instead of "164514"; that the automobile was described in the contract as a "4 Dor Custom Ford, Year Model 50," then and there purchased from said Myers Motor Company, and delivered to said Paul Whitehead; that Whitehead, at the time the defendant received from him possession of the automobile, had had no other automobile, had no automobile with motor number 827525, and had no "4 Dor Custom Ford, year model 1950," between said time and the date, December 26, 1951, other than the one sold and delivered by Myers Motor Company to him; and that said automobile had remained in the possession of Paul Whitehead until the defendant took possession of it. The recording slip, attached as an exhibit, was in part as follows: "City of Hartwell, County of Hart, State of Ga. The undersigned, herein called, `Purchaser,' has this 26 day of December, 1951, purchased and acknowledged delivery from Myers Motor Company, herein called Seller, the following motor vehicle, to wit: Class: Used; Make Type: 4 Dor Ford Custom; Year Model: 50; Model: Custom; Serial Number: 827525; Motor Number; 827525, together with its equipment and accessories, and receipt thereof is acknowledged." It bore the signature of Paul Whitehead. A general demurrer to the petition was sustained and the action was dismissed. To this judgment the plaintiff excepts.
The question for determination is whether the recorded title-retention contract constituted constructive notice to a third person that the title to the automobile remained in the seller's assignee. It is contended by the defendant in error that such did not constitute constructive notice to third persons because the recorded contract contained a motor number different from the motor number of the automobile purchased by the defendant in error. We cannot say as a matter of law that such was insufficient to constitute constructive notice. In Nichols v. Hampton, 46 Ga. 253, the question was the sufficiency of description as to third persons of the property covered by the following instrument: "$200. By the first day of February next, I promise to pay Margaret J. Hampton, or bearer, two hundred dollars for value received in a bay mare and buggy, Margaret J. Hampton holding a lien on said horse and buggy until it is paid for." The Supreme Court there said: "True, the description will apply to any bay mare, but there is another description added, to wit: the bay mare sold by the plaintiff to Johnson." In Thomas Furniture Co. v. T. C. Furniture Co., 120 Ga. 879 ( 48 S.E. 333), the recorded conditional bill of sale relied on to constitute constructive notice read: "I have this day purchased of the A. S. Thomas Furniture Company 1 dresser, 1 bed, 1 w. stand. . ." The Supreme Court held that the instrument was sufficient notice, the description being sufficient to put third persons on notice. Both of these cases hold that one is not restricted to the mere physical description of the property recited in the instrument recorded, but may look to a recital in the instrument that the property was that property purchased by the vendee from the vendor on a certain day as a further means of identifying the property.
The incorrect motor number did not vitiate the contract. The doctrine of falsa demonstratio non nocet — "mere false description does not make an instrument inoperative" — applies. Farkas v. Duncan, 94 Ga. 27 ( 20 S.E. 267). In addition to the motor number, the title-retention contract contained the following description of the automobile: Class: Used; Make Type: four-door Ford Custom; Year Model: 1950; Model: Custom; Serial Number: 827525. Regardless of whether the above description alone is sufficient to constitute constructive notice, under the rulings in Nichols v. Hampton, and Thomas Furniture Co. v. T. C. Furniture Co., both supra, there is "additional description" in the recorded title-retention contract which, coupled with the above description, affords a key to the identity of the property and which could authorize a jury to find that the contract as recorded constituted constructive notice, i.e., "The undersigned [Paul Whitehead], herein called `Purchaser', has this 26 day of December, 1951, purchased and acknowledged delivery from Myers Motor Company, herein called Seller, the following motor vehicle, to wit." This "additional description" identifies the automobile as the one purchased from Myers Motor Company by Paul Whitehead on December 26, 1951, and distinguishes that particular automobile from all other 1950 four-door custom Ford automobiles. See Paradies Rich v. Warren Co., 53 Ga. App. 457 (1) ( 186 S.E. 438). It is a question for a jury as to whether a person of ordinary business prudence would have discovered, from pursuing such lines of inquiry as the data given in the title-retention contract would naturally suggest to his mind, that the title to the automobile remained in the plaintiff in error. ( Pinson-Brunson Co. v. Bank of Danielsville, 40 Ga. App. 793, 796, 151 S.E. 549), considering such facts as whether Paul Whitehead bought only one 1950 four-door custom Ford on December 26, 1951; whether the serial number on the automobile in question corresponded with the serial number set out in the recorded title-retention contract; that the automobile was bought directly from Whitehead, etc. Hicks v. Walker Brothers Co., 31 Ga. App. 395 (2) ( 120 S.E. 694).
While the opinion in Morris Eckels Co. v. Fulton National Bank, 208 Ga. 222 ( 65 S.E.2d 815), does not show it, the record in such case discloses that not only did the mortgage there fail to state the location of the mortgaged property, but it did not show from whom the property was bought, as did the title-retention contract in the instant case.
Any rulings appearing in Shearer v. Housch, 32 Ga. App. 663 ( 124 S.E. 356), and Master Loan Service v. Maddox, 68 Ga. App. 429 ( 23 S.E.2d 179), contrary to what has been here ruled must of necessity yield to the Supreme Court decisions cited herein.
The court erred in sustaining the general demurrer to the petition and in dismissing the action.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.