Cowart v. Brigman Motors Co.

Stephens, J. A seller of personal property who has reserved title in himself by a conditional bill of sale can, upon a rescission of the contract of sale and accounting to the purchaser for any excess of the purchase-money received over the rental value of the property, recover the property in trover from the purchaser. Hays v. Jordan, 85 Ga. 741 (11 S. E. 833, 9 L. R. A. 373); Scott v. Glover, 7 Ga. App. 182 (66 S. E. 380). The right of the purchaser to have such an accounting is a condition precedent to the seller’s right to recover in trover, and the rendition of a judgment in the trover suit brought by the seller against the purchaser necessarily amounted to an adjudication of the purchaser’s right to such an accounting. Civil Code (1910), §§4335, 4484. It follows, therefore, that a suit afterwards brought by the purchaser against the seller, to recover such excess in payments made by the purchaser to the seller over the rental value of the property, was properly dismissed on demurrer, where it appeared from the petition that the seller had in a former suit against the purchaser asserted the title retained by him against the purchaser in a conditional bill of sale, and had recovered the property in trover. The superior-court judge therefore properly overruled the petition for certiorari, brought by the plaintiff in the municipal court, excepting to the judgment of the judge of the municipal court sustaining the demurrer to the petition. Judgment affirmed. Jenkins, P. J., and Bell, J., concur.