Harrison v. Central Georgia Automotive Co.

Stephens, J. 1. In an action in trover by the vendor to recover property sold under a retention-of-title contract, where the plaintiff sought a money verdict, and the value of the property was not in excess of the [604] unpaid purchase-money, the plaintiff was under no obligation to account to the defendant for any of the purchase-money actually paid. Decided February 22, 1924. Rehearing denied March 1, 1924. Daisy L. Ohurchwell, for plaintiff in error. Turpin & Lane, contra. 2. Where, before the filing of a trover suit, the defendant refused, on demand, to deliver the property to the plaintiff, but where an agreement was made between the parties at the time, by the terms of which the defendant deposited the property with a third person, where it was to remain until the defendant had made a payment upon the purchase price, and should not in the meantime be retaken by the defendant without the consent of the plaintiff, such action on the part of the defendant did not constitute either a delivery or a tender of the property to the plaintiff. 3. Where a sequestration of the plaintiff’s witnesses was requested by the defendant, the court did not abuse its discretion in allowing two officers of the plaintiff corporation to remain in the court-room during the trial. 4. Evidence of a witness that certain property was not stored anywhere, and had never been delivered into his possession or into the possession of the plaintiff, was evidence as to a fact, and was not subject to the objection tliat it was a conclusion of the witness. 5. It appearing without dispute that the title was in the plaintiff, and that the plaintiff had made a demand for the property, which demand was refused by the defendant, the court did not err in directing a verdict for the plaintiff, upon which judgment was entered for the amount of the proceeds of the property, realized from a “short-order sale” under the Civil Code (1910), §§ 5153, 6068, which sum was less than the undisputed balance due on the purchase-money as principal and interest. 6. The court did not err in sustaining certain demurrers to the defendant’s pleas, and in overruling the motion for a new trial. Judgment affirmed. Jenhims, P. J., and Bell, J., concur.