Turner v. Coggins

Stephens, J. 1. The defense that one is a bona fide purchaser for value without notice should be specially pleaded. Carter v. Pinckard, 68 Ga. 817; Donalson v. Thomason, 137 Ga. 849 (6) (74 S. E. 762). Where in a trover suit the defendant files only a general denial, denying possession and conversion of the property, and where no issue as to the bona fides of his purchase is raised by the evidence, the plaintiff is not defeated in a recovery because it appears that a contract between the plaintiff and the alleged vendor of the defendant, retaining title in the plaintiff, was not recorded before the original purchaser, the alleged vendor of the defendant, parted with possession of the property. 2. In the absence of any request the court did not err in refusing to charge the law relative to the impeachment of witnesses. 3. Where the holder of the legal title under a retention-of-title contract sues a stranger to the contract in trover for an alleged conversion of the property by having obtained possession of it from the original purchaser -under the contract, it is not necessary for the plaintiff to [581] show any rescission and cancellation of the contract or its surrender by the plaintiff. Decided February 8, 1924. Brooke & Henderson, for plaintiff in error. Wood & Vandiviere, contra. 4. This being a suit in trover to recover of the defendant the value of a certain mule alleged to have been the property of the plaintiff, where in support of the plaintiff’s petition there is evidence to the effect that the mule was sold by the plaintiff under a retention-of-title contract on October 16, 1919, to a person who upon the same day resold it to the defendant, and a verdict having been rendered for the plaintiff, newly discovered evidence offered as a ground for a new trial by the defendant to the effect that the person to whom the plaintiff sold the mule was sometime in October, 1919, and also “sometime in the fall of the year two or three years ago this last fall” seen with “a black mare mule which appeared to weigh about 1000 or 1100 pounds,” which was so far as it went a description of the mule in controversy, which was a “black mare mule 5 years old about 15% hands high, weight about 1000 pounds,” was insufficient to authorize the grant of a new trial, since it was entirely impeaching in its nature and was not sufficiently definite as to time, or as to the identity or description of the property in controversy, to be conclusive or likely to produce a different result. Judgment affirmed. Jenkins, P. J., and Bell, J., concur.