Opinion
35587.
DECIDED APRIL 14, 1955. JUDGMENT ADHERED TO JULY 7, 1955.
Trover. Before Judge Philips. Decatur City Court. September 23, 1954.
Stewart Hall, Wm. Hall, for plaintiff in error.
Grigsby H. Wotton, contra.
1. The offer of the automobile to the plaintiff's cashier or to its attorney did not for certain reasons meet the technical requirements of a legal tender. However, it is held in the case of Groover v. Brandon, 200 Ga. 153 (5): "A tender is not required where the party to whom the offer is made states that the tender would be refused if made." Consequently, whether the tender was legally made or not, the declaration of the plaintiff's counsel waived tender of the property.
2. Where a chattel is tendered, and the party to whom it is tendered refuses to accept it, he does not abandon the property by leaving it for a period of less than four years in the possession of the party making the tender.
DECIDED APRIL 14, 1955 — JUDGMENT ADHERED TO JULY 7, 1955.
The Citizens Bank of Greensboro, Georgia, brought a trover action against M. E. Rogers, in the City Court of Decatur to recover an automobile. The plaintiff made an election to take a money judgment.
The petition was substantially as follows: that M. E. Rogers was a resident of DeKalb County, and was in possession of a 1947 Plymouth deluxe two-door sedan automobile of a value of $842.47, to which the plaintiff claimed title or a valuable interest therein and the right to possession; and that the defendant refused to deliver the above-described property to the plaintiff or pay it the profits thereof.
The defendant's answer set forth: that he denied the value alleged; that he could neither admit nor deny the plaintiff's title to the property or its right of possession of the property; that the plaintiff made demand for the automobile, and the defendant "tendered and offered" to deliver said automobile to the plaintiff; that the plaintiff refused to accept tender of the automobile; and alleged that the plaintiff was not entitled to recover any profits of said automobile, and that the plaintiff's claim of $5 per day hire is unjust, and the plaintiff is not entitled to recover hire in any amount.
The plaintiff claimed title by virtue of a bill of sale to secure a debt payable to it and signed by Willie Lee Payne. In the bill of sale the title to the automobile in question was vested in the plaintiff to secure the payment of $944.30. The bill of sale was duly recorded in the clerk's office of the Superior Court of Greene County on June 30, 1953. About a week after the defendant bought the automobile from Payne, when the bank's cashier received notice of the sale, he, representing the bank's interest, telephoned the defendant and informed him that the plaintiff held a duly recorded bill of sale to secure a debt against the automobile. Thereupon the defendant admitted having bought the automobile and invited the plaintiff's cashier to send someone for the automobile. After a lapse of from three to four days or a month from the time he purchased it — the evidence not being clear as to which — the defendant sold the automobile to a third party.
It appears from the record that at some time after the conversation between the plaintiff's cashier and the defendant, the matter was referred to the plaintiff's lawyer, who took it up with the defendant.
The defendant, called by the plaintiff for cross-examination, testified: "Q. You did receive the Plymouth automobile which we are discussing here from Mr. Payne August 4th? A. Yes sir, from Willie Lee Payne, he gave me a bill of sale showing he had a clear title to it, the bill of sale was from the Morgan Motors and Implement Company and showed the car had been paid for by cash. I called the Morgan People and asked them about it. It was three times as much as the Plymouth was worth. I couldn't see any sense in anybody paying that much for that car. Mr. Morgan said the car had been paid for in cash and it was all right to buy the car. Q. On that bill of sale that Mr. Payne gave you, his address is shown as Greensboro, Ga.? A. Yes sir. Q. You knew he lived in Greene County? A. He told me he did. Q. Did you make any inquiry in Greene County relative to the car? Q. After you received the car from Mr. Payne you sold it in your business? A. I sold it after I couldn't get you to take it back. I tried to get you to take it back and you wouldn't take it. Q. You had a conversation with me over the phone? A. Yes sir, you said you didn't want it, that you didn't want anything but the money. Q. You told me the car was wrecked. A. No sir, I did not. Q. You remember testifying in this case before? A. Yes sir. Q. You remember me asking you whether you told me the car was wrecked and you said `I told you the car was wrecked at that time?' A. The car was wrecked when I bought it. Q. In what way? A. Every way, tore up all over. Q. You sold it to a lady? Q. Did you sell this automobile to a lady? A. Yes sir. Q. Who did you sell it to? A. It was tore up so bad I didn't want to sell it myself, I got another salesman to sell it. Q. You mean you do not know who he sold it to? A. He sold it to a lady. Q. You said you remembered a telephone conversation with me? A. Yes sir. Q. Do you remember telling me over the telephone you had sold it to a lady and she had had a wreck and the insurance company had it. Do you remember that statement? You said I could have it back if I got it from the insurance company. A. I did not make no such statement to you, the only statement I made was for you to get the automobile and you said you did not want it and wasn't going to take it back, you said you wanted the money. Q. Going back to my question: when you testified in this case before, did you not make this statement: `I told you the automobile was wrecked at that time?' A. I might have, it was wrecked. Q. It had been involved in an automobile wreck after you had received it from Willie Lee Payne? A. It had. Q. When you say it was wrecked when it came to you, you mean bad condition, in your opinion? A. It was all worn out all over. Q. You mean to tell the jury it was in a collision or something like that? A. Yes sir, it had been in a collision. Q. With what? A. Another automobile or something. Q. What was wrong with it? A. Beat up all over, worn out all over, did not have any tires. I spent over a hundred dollars on it. Q. How much did you pay Willie Lee Payne for it? A. $250. He came one morning early and wanted to sell it, and he wouldn't take $250, he showed me the bill of sale, what he had paid for it, he said he couldn't take that little amount for it. He left there and he came back later and said he had shopped all over town and I was the highest bidder. I just made him the offer. If I had not made him the offer I wouldn't have given him but $175 for it. Q. Did you pay him the $250 for it? A. Yes sir, I couldn't go back on my word. Q. How much did you later sell the car for to the lady? A. $495. I gave the salesman $25 to get it off my hands, and I put about a hundred dollars in the car myself. Q. And she had a wreck with it up in north Georgia? A. I don't know that. Q. Where was it? A. I don't know, somewhere in town, she said the wrecking car pulled it in, somewhere in the city limits. Q. You told me I could get this wreck and have it. A. Yes, I tried to get the sheriff to come and get the car. Q. You never did take the car to the bank? A. No sir. Q. You did not carry it down to the bank? A. No sir, but I tried to get them to come and get it."
The defendant testified, when later appearing as a witness in his own behalf: "Q. Will you tell the jury what, in your opinion, was the market value of that automobile during that entire time? A. I paid $250 for it, I paid that because I made that offer. Q. Tell the jury what in your opinion, would be a fair market value of that automobile at any time, the highest one, any time from August 4th, 1953, up to the present time, give a dollar and cent figure? A. At the time I bought it it was worth about $200, today it would be worth $50 to $60. Q. Did you have a conversation with the bank in Greensboro about this automobile? A. Yes sir. Q. Prior to that conversation, did you have any idea that the Bank of Greensboro or anybody, had any mortgage on it? A. No sir, I did not. Q. Did you buy the car in good faith? A. Yes sir. Q. Did you pay your money for it? A. Yes sir. Q. How much did you pay for it? A. $250. Q. When you received the telephone call from Mr. Bell of the Bank of Greensboro, did you tell him you had the car? A. Yes sir. Q. Did you or not offer the car back? A. Yes, I offered the car back, I never refused to give him the car. I tried to get him to send for it. Q. They wouldn't take the car back — did you consider that to be absolvment of the car? A. Yes sir. Q. And you turned it over to this other man? A. Yes sir. Q. In the conversation you had with Mr. Bell, did he say anything about sending the sheriff down here? A. Yes sir. Q. Did the sheriff communicate with you? A. No sir, he never did come. Q. Did he ever talk to you on the telephone? A. Yes sir. Q. What did you say to him? A. I told him I expected him to come and get it. Q. At the time you offered the car back to Mr. Bell and the sheriff, was it in as good condition as when you received it? A. Yes sir, better. Q. How much did you spend fixing the car up? A. Over a hundred dollars. Q. How many times did you talk to Mr. Wotton about it? A. I talked to him two or three times. Q. How much money did you spend on the car? A. Over a hundred dollars. Q. What did you do to it? A. I got my mechanic to work on it. Q. Did you tighten the car up all over? A. Yes sir. Q. Would you say you overhauled it? A. Yes sir. Q. Put tires on it? A. I think I put on one or two tires, I have my own mechanic. Q. Do you know what date you first talked to Mr. Wotton? A. Yes sir, a week or so after I bought the car. Q. The first time you talked to Mr. Wotton had the car been sold? A. No sir. Q. Had the car been wrecked then? A. No sir. Q. The first time you talked to Mr. Wotton, Mr. Grigsby Wotton, did you offer him the car back? A. Yes sir, he said he did not want the car, never did want it, he wanted the money, that is what he said. Q. The car was not wrecked at that time? A. No sir. Q. Later the car was wrecked? A. Yes sir. Q. Did you have a conversation with Mr. Wotton after that time? A. No sir. Q. Mr. Rogers, that car was sold to Mrs. Leona Cesson. Can you tell me exactly what that last name is? A. LeCarron. Q. For $495? A. Yes sir. Q. Sold on August 8, 1953? A. I don't remember the date, that should be the ninth. Q. Ninth instead of the eighth? A. Yes sir. Q. Any way, only four or five days after you received it from Willie Lee Payne you sold it? A. No sir, it was over a month. That should have been the ninth month. Q. You are changing the month instead of the day? A. Yes sir. Q. You made this record? A. Yes sir, but I can make a mistake as well as anybody else. Q. Your testimony is, although your record shows you received it on August 4th and sold it on August 8th your record is in error and you sold it on September 8th? A. Yes sir. Q. You had it a little over a month? A. Yes sir. Q. Do you still deny when you and the gentleman talked over the telephone you told him the car was wrecked? A. I told him to come and get the car. Q. You told him to come and get the car? A. Yes sir. Q. Also told him the car was wrecked. A. The car was wrecked when I bought it. Q. Did you tell him this woman had wrecked the car? A. I might have."
The defendant purchased the automobile, for the recovery of which the trover action was instituted, with constructive notice of the plaintiff's title and right to possession of the same. He predicated his defense upon the contention that he tendered the automobile to the plaintiff, and that the plaintiff's failure to take possession immediately amounted to an abandonment of it. The defendant specifically relies upon the statement of the plaintiff's attorney at law, who was handling the collection of the bill of sale under the terms of which the plaintiff held title to the automobile, that he "did not want the car, never did want it, he wanted the money."
The plaintiff maintains that it was not bound to accept the automobile when offered to its attorney by the defendant, for the reason that it had been sold by the plaintiff to a lady and wrecked by her before the offer was made.
If the undisputed evidence had shown this to be true, the plaintiff's counsel unquestionably would have had the right to refuse the defendant's offer. Georgia, Florida c. Ry. Co. v. Blish Milling Co., 15 Ga. App. 142 (8) ( 82 S.E. 784).
But while the defendant's evidence was somewhat confused and equivocal regarding the condition of the automobile at the time the offer was made, and as to whether the defendant offered the automobile to the plaintiff's attorney before or after it was wrecked by a lady to whom the defendant had sold it, it was sufficient to make an issue as to whether it was damaged in the wreck before or after the offer was made.
The offer of the automobile to the plaintiff's cashier or to its attorney did not for certain reasons meet the technical requirements of a legal tender. However, it is held in Groover v. Brandon, 200 Ga. 153 (5) ( 36 S.E.2d 84): "A tender is not required where the party to whom the offer is made states that the tender would be refused if made." Consequently, whether the tender was legally made or not, the declaration of the plaintiff's counsel waived tender of the property.
This does not mean that the refusal of the offer of the automobile, or the declaration of the plaintiff's attorney above quoted amounted to abandonment of the property, or a renunciation of the plaintiff's title to it. In the first place, the plaintiff had the right to foreclose its bill of sale after the automobile had been sold by Willie Lee Payne, the maker of the paper, to the defendant. If it had accepted the tender of the property, and had taken the automobile, this might have had the effect of terminating all incidents of Payne's obligation under the bill of sale, and might have precluded a foreclosure of that instrument.
For this reason no duty rested upon the plaintiff to accept possession of the automobile.
Secondly, it does not appear from the testimony that the attorney was authorized to renounce the plaintiff's right to the property or to abandon it. So far as the record discloses, he had no authority other than that vested in him by reason of the relationship of attorney and client existing between him and the bank.
An attorney employed, as in this case, to handle the collection of a bill of sale, is not empowered to surrender his client's right or title to the property described in it. Code § 9-606 provides: "Limitation on authority. — Without special authority, attorneys cannot receive anything in discharge of a client's claim but the full amount in cash."
The defendant contends that the testimony of the plaintiff bank's cashier shows that the attorney possessed the unusual authority to renounce, abandon, or surrender the plaintiff's title to the automobile. The testimony upon which this position is based was as follows: "Q. When did you first retain Mr. Grigsby Wotton to look after this matter? A. Mr. Wotton is the bank's attorney. Q. Was it within a month after you had your telephone conversation with Mr. Rogers? A. I don't know when he was retained, he is the attorney for the bank, he handles everything for the bank. Q. Any conference Mr. Wotton had with Mr. Rogers was that your authorization? A. Yes sir."
It clearly appears from this excerpt of the cashier's evidence that the attorney had no authority in excess of that usually conferred upon a lawyer by virtue of his employment. The cashier, so far as the record disclosed, was not authorized to confer any additional authority upon his employer's attorney.
Thirdly, the evidence did not authorize the inference that the plaintiff's attorney had any intention of abandoning any right the plaintiff had in the automobile. Seldom do holders of instruments such as mortgages, conditional-sale contracts, or bills of sale made to secure a debt, want the property. In most instances the holder of the paper wants to realize the recovery of the debt evidenced by the instrument. If the holder of such a secured obligation asserts that he does not want the chattel, title to which the instrument retains or conveys, it certainly does not mean that he does not want the funds that will be realized from a foreclosure of the paper.
The evidence did not show that the plaintiff's attorney expressed an intention to abandon the automobile. Merely leaving it in the defendant's possession for three days or a month after he had offered to surrender it did not constitute an abandonment of the property. Even adverse possession of personality does not ripen into prescriptive title in less than four years. Code § 85-1706; Blocker v. Boswell, 109 Ga. 230 ( 34 S.E. 289); Culbreath v. Patton, 73 Ga. App. 667 (1c) ( 37 S.E.2d 719).
If the defendant, instead of selling the automobile, had promptly, upon discovery that the plaintiff instead of Willie Lee Payne held legal title to the same, tendered it to the plaintiff or its representative, and if the automobile had not been wrecked while in the defendant's possession before the tender was made, there would have been no conversion of the automobile by the defendant, and the plaintiff could not have maintained a trover action against him.
But, according to the defendant's own testimony, he did not keep the automobile in his possession, but, claiming it as his own, sold it to a lady. No better way of asserting an adverse title to property, and no more effective method of converting it to his own use, could have been chosen.
The court properly denied the defendant's amended motion for new trial. Judgment affirmed. Nichols, J., concurs. Felton, C. J., concurs in the judgment.