Scarboro v. Goethe

Pisrr, P. J. In an action of trover by a vendor against a vendee, in which the former claimed title based upon a conditional bill of sale, reserving to himself' title to the property sold until the purchase-money should be paid, no demand was necessary where it appeared that the defendant was in possession of the property, claiming title thereto, at the time of the action, his defense being that, owing to payments made and partial failure of consideration, he was due only a small balance of the purchase-money, of which he made tender. Accordingly, it was erroneous, in such a case, to grant a nonsuit upon the ground that no demand was shown to have been made prior to the suit. Civil Code, § 3887; Muse v. Wright, 103 Ga. 783; Grant v. Miller, 107 Ga. 804. Judgment reversed. By five Justices.