Opinion
31224.
DECIDED APRIL 18, 1946.
Trover; from Fulton superior court — Judge Hooper. January 19, 1946.
Thomas E. McLemore, for plaintiff.
George F. Fielding, for defendant.
A contract for the sale of personal property is executed when there is a down payment made and an agreement that the balance will be payable as soon as the OPA fixes the ceiling price on the property and there is a delivery of the property to the buyer. A subsequent delivery of the property to the seller for a special purpose will not alter the case where the right to temporary possession by the seller has ceased; and, with this appearing, the petition set forth a cause of action in trover, and the court erred in sustaining the demurrer to the petition.
DECIDED APRIL 18, 1946.
Fred Comstock instituted an action in trover against B. T. Tarbush to recover a 1942 Ford tractor and a utility trailer. The petition alleged: that on October 15, 1943, the plaintiff "bought" from the defendant the tractor and trailer; that he paid the defendant $1000 in cash and was to pay the balance as soon as the low OPA ceiling price was established; that the low OPA ceiling price on the trailer is $1022.40 and on the tractor $1196.84; that he tendered the balance to the defendant, who refused to accept it and deliver the truck and trailer to the plaintiff; that the defendant refused to go with the plaintiff to the OPA to determine the ceiling price on the tractor and trailer; that the rental value of the property is $200 per month. The defendant filed demurrers to the petition on the following grounds: "1. That it appears from the allegations of plaintiff's petition that he is not entitled to maintain an action of trover against this defendant. 2. That it appears that plaintiff does not have title to the property referred to, nor the right of possession thereof. 3. That it appears from said petition that no sale to said property was ever consummated as contended by the plaintiff, and that title to said property has never passed into the plaintiff, but is still in defendant." By amendment the plaintiff alleged: "1. Petitioner shows that the truck and trailer referred to in the original petition was sold and delivered by the defendant to petitioner, and petitioner had custody of the truck and trailer for approximately a week, and left the truck and trailer at the defendant's house in order to have the extra equipment checked on the truck and trailer to determine OPA ceiling prices. 2. Petitioner shows that the defendant contended the ceiling price was around $4600, but refused to go with petitioner to any person or persons to determine the correct price. 3. Petitioner avers that the defendant took the truck and carried it on Highland Avenue, and left the trailer at the AAA Highway Express on Fourteenth Street, and then refused to turn the truck and trailer back to your petitioner." Thereupon the defendant renewed his original demurrer and filed the following additional ones: "1. That it is conclusively shown from the original and amended petition that no sale of the property referred to was ever effected, and that title never passed to the plaintiff. 2. Defendant demurs to paragraphs 4, 5, and 6 of the amendment, and moves to strike the same upon the ground that said paragraphs attempt to set up matter irrelevant and immaterial and not germane to the cause of action declared on." The court sustained the demurrer and dismissed the action, and the plaintiff excepted.
1. The Supreme Court transferred this case to this court ( Comstock v. Tarbush, 200 Ga. 320, 37 S.E.2d 148), which necessarily means that the court did not err in sustaining the demurrers insofar as they attacked the petition for failure to show that the plaintiff was entitled to equitable relief.
2. "Even though a plaintiff might not be entitled to equitable relief under his averments or prayers, the petition should not be dismissed on general demurrer if it states a cause of action good at law, since in such a case he would be entitled to prove and enforce his strictly legal rights and remedies according to the rules of law." Latham v. Fowler, 192 Ga. 686, 690 ( 16 S.E.2d, 591), and cases cited. The petition as amended alleged an executed sale, which if proved would give to the plaintiff both the title to the property sued for and the right of possession thereto. The amended petition alleged that the property was sold and delivered to the plaintiff by the defendant, and that it was left in the possession of the defendant for a special purpose. Such possession was still, in law, the plaintiff's possession, since it did not contemplate surrender of the plaintiff's rights of title and possession. It is the contention of the defendant that there was only an executory contract, and that tender would not render it executed, and he cites McEntire v. Naylor, 47 Ga. App. 752 ( 171 S.E. 387). In that case there was no delivery of the property to the buyer, so neither the title nor the right of possession passed to him. "Three elements are essential to a contract of sale: 1. An identification of the thing sold. 2. An agreement as to the price to be paid. 3. Consent of the parties." Code, § 96-101. "A valuable consideration is essential to a sale; it must either be definite, or an agreement made by which it can be made certain; if its ascertainment becomes impossible, there is no sale." Code, § 96-104. "Generally the delivery of goods is essential to the perfection of a sale. The intention of the parties to a contract may dispense therewith; delivery need not be actual; constructive delivery may be inferred from facts. Until delivery is made or dispensed with the goods are at the risk of the seller." Code, § 96-107. If the price of goods was fixed and the delivery was perfect the contract was executed. Butler v. Lawshe, 74 Ga. 352. The fact that the price is to be ascertained by a method which is certain and exact subsequently to the contract does not affect the validity or completeness of the sale, nor does the fact that the sale is on credit. Daniel v. Hannah, 106 Ga. 91 ( 31 S.E. 734); Loud v. Pritchett, 104 Ga. 648 ( 30 S.E. 870); Tift v. Wight Weslosky Co., 113 Ga. 681 ( 39 S.E. 503); Allen v. Sams, 31 Ga. App. 405 ( 120 S.E. 808). In Clark v. Wood, 39 Ga. App. 340 ( 147 S.E. 173), there was no delivery. As to possession by the defendant as bailee, see Dudley v. Isler, 21 Ga. App. 615 ( 94 S.E. 827). Even if the price is considered as one for cash, the title passed. Loud v. Pritchett, supra. The petition in this case alleged every element of an executed sale — parties, agreement, definite method of fixing price, and delivery of the property. It follows that the plaintiff acquired the title and the right of possession to the property. The petition set forth a cause of action and the court erred in ruling to the contrary.
Judgment reversed. Sutton, P. J., and Parker, J., concur.