Dunlap-Huckabee Auto Co. v. Central Georgia Automotive Co.

Jenkins, P. J. A sold an automobile to B, retaining the title, by a properly recorded instrument, until payment of the balance due on the purchase price. The contract provided that the car should not be sold until fully paid for. B procured C, as his agent, to sell the machine to D, 0 acting innocently. D,. who also acted innocently, then took the car to A, the original owner, which still retained the title under the paper mentioned above, and A, without actual knowledge that the car was already its own property, purchased the car from D for $1,150. After thus regaining possession, A sold the machine to another, for a consideration which is not disclosed by this record. Upon discovering the situation, A sued C, the agent of B, in trover. It appears that all the parties except B acted in good faith. A'having elected to take a money verdict, the trial judge, on these undisputed facts, directed a verdict in A’s favor for $300, the balance due on the purchase-money note. The superior court sustained C’s certiorari, and entered a final judgment in his favor against A’s right to proceed; to which A excepts. Held: “The undisputed testimony showing that the plaintiff in the action of trover had parted with . . title prior to the institution of the suit and had not reacquired it,” a verdict for the plaintiff could not be sustained. Prater v. Painter, 6 Ga. App. 292, 293 (64 S. E. 1003); Hall v. Simmons, 125 Ga. 801 (2) (54 S. E. 751); Cox v. Fairbanks Co., 29 Ga. App. 538 (3) (116 S. E. 43); Everroad v. Dickson Planing Mill Co., 26 Ga. App. 329 (106 S. E. 193); Monk v. Jackson, 25 Ga. App. 25 (102 S. E. 382). Irrespective of other questions raised by the record and rhe briefs, and irrespective of any other right or remedy which uhe plaintiff might have, since it affirmatively appears that the plaintiff had sold the automobile in question to another, thus parting with all of its title prior to the suit, which sale is in no wise questioned, it could not maintain such an action as was here instituted. The superior-court judge properly sustained tne certiorari. Judgment affirmed. Stephens and Bell, JJ., concur.