Cornett & Co. v. Newsome

Hill, J. 1. (After stating the foregoing facts.) The main bill of exceptions fails to show any assignment of error upon the judgment overruling the demurrer, nor does the record show any assignment upon the exceptions pendente lite complaining of that judgment. In the absence of such assignment of error, this court cannot consider the question made on the judgment overruling the demurrer. Tift v. Shiver, 24 Ga. App. 638 (102 S. E. 47); Campbell v. State, 24 Ga. App. 138 (100 S. E. 30); Smiley v. Smiley, 144 Ga. 546 (87 S. E. 668). 2. In the absence of the entire charge of the trial court, this court cannot intelligently pass upon the isolated fragment of the charge specified and will not consider such detached portion unless the portion of the charge excepted to is without qualification and is inherently erroneous. Central R. v. Senn, 73 Ga. 705; Mixon v. State, 15 Ga. App. 252 (82 S. E. 935); Mills v. State, 133 Ga. 155 (65 S. E. 368). 3. The main question in the ease is whether or not the facts submitted to the jury were sufficient to support the defense set up, that the retaking of the two mules by the sellers, without authority, and the appropriation of the proceeds thereof to their own use, amounted in law to a rescission of the contract of sale and to a legal cancellation of the contract. The general proposition is well established that when property has been sold and delivered to the buyer under a contract of sale, and the buyer has refused or failed to pay the purchase-money due thereon, and the seller thereupon retakes possession of the property and holds it as his own, or disposes of it for his benefit, and does not give to the buyer any credit on the debt for its value, the re [343] taking of the property operates as a complete rescission and cancellation of the contract of sale. This principle is thus stated by the Supreme Court: “ When an election is made to take the property itself, and it has been recovered by the plaintiff, this is a rescission of the contract of purchase, and no subsequent action can be had for any further recovery.” Glisson v. Heggie, 105 Ga. 34 (31 S. E. 118). In the case of Pannell v. McGarity, ante, 71 (107 S. E. 352), the court held, in effect, that where the contract of sale contains a provision that if the note is not paid at maturity, the vendor is authorized to repossess himself of the property, to sell it for cash at public outcry, and to credit the proceeds from the sale on the nóte, this principle is not applicable, and the vendor can also bring suit in trover for the sole purpose of obtaining possession of the property in order that he might sell it and credit the proceeds of the sale on the purchase-money note. There is a great distinction between the case just cited and the facts of the one under consideration. Here no such election was provided for in the contract of purchase, nor did the sellers retake the property and sell it and apply the proceeds as a credit on the purchase-money note, but on the contrary they retook possession of the property without authority and applied it for their own benefit, subsequently bringing a foreclosure suit for the full amount of the note. We think the present case is controlled in principle by the decision of the Supreme Court in Glisson v. Heggie, supra, and that the conduct of the sellers, in retaking the property and in selling it without authority and without giving to the buyer the benefit of the sale, amounted in law to a full rescission and cancellation of the contract of sale, and that under the evidence the jury were fully authorized to find a verdict in accordance with this' principle, in favor of the defendant, and that there was no error in overruling the motion for a new trial. Judgment affirmed. Jenkins, P. J., and Stephens, J., concur.