Opinion
35771.
DECIDED JULY 14, 1955. REHEARING DENIED JULY 26, 1955.
Trover. Before Judge Perryman. Taliaferro Superior Court. May 7, 1955.
J. A. Mitchell, for plaintiff in error.
Osgood O. Williams, contra.
The court erred in granting a nonsuit.
DECIDED JULY 14, 1955 — REHEARING DENIED JULY 26, 1955.
Roger Brewer, hereinafter called the plaintiff, filed a petition in trover against Carl Chapman, hereinafter called the defendant. The petition, omitting the formal parts, alleged: "1. That Carl Chapman . . . is in possession of certain property, to wit: 1 special, 1940 model Chevrolet, without motor number, black body, with trunk of wooden bottom, left light having been repaired, to which petitioner claims title of the value of $750. 2. That demand has been made on the said Chapman for the said property, and that he refuses to deliver the said property, or pay him the profits thereof. 3. That the yearly value of the said property is $150."
The defendant answered by denying the three paragraphs of the petition, and further pleaded "that Roy Brewer does not have title to said property described in the petition; has no right to claim title to same and does not have right of possession of said described property."
At the conclusion of the evidence the court granted a nonsuit. The plaintiff filed a motion for a new trial which was overruled, and error is assigned here on this judgment.
The evidence is as follows: The plaintiff, sworn in his own behalf, testified: "The car described by you in reading to the jury was my car. I never did sell it to Mr. Chapman, nor anybody else. I have never parted with the title to the car. I delivered it to Mr. Chapman for repairs. I think the value of it was around $750 at the time the suit was brought. It was a 1940 Chevrolet, black deluxe. I never did sell it to Mr. Chapman. I never tried to sell it to him. I never gave him a paper nor security deed upon it that I remember. I took the truck for repairs. He refused to give it back to me. I gave the car to Mr. Chapman for repairs at first in the fall of 1949. He did some work on it. He tore it down and found the plugs and everything in bad shape. When I first took it to him, the car, I took it to him for rings or anything else it would need. He came to my house and asked about getting a new motor. I told him that I only had so much money to put in it. My understanding is that he told me that it would be all right, and asked me if I could get up enough money to buy the parts for the motor. I told him I thought so. He said: `We will go ahead and fix it and get up what you can.' I brought him money every two weeks. He went ahead with the work. I think the bill was around $400, but I paid him all I had. I paid him somewhere around $150 or $200. Not less than $150. I don't think that it was less than $150. I would not swear that I paid him as much as $150. That is right, I got the car with the understanding that I would pay him every two weeks, $10 or $15 or whatever I had, and went home. On Monday morning I started here and the transmission tore up. It was pretty early in the morning and I went to Mr. Chapman's house and waked him up and asked him could he fix the car. He told me to take the truck and leave it. I asked him when I could get it. He said some time during the week. I left it in front of his shop and went to work. Saturday I came back and he had never done anything on it, and I asked him why. He didn't give any reason why. The only reason that he gave me was that he had not got to it. The next time I came up there, in about a week, he had torn it down and the transmission was out, and everything, and he told me he had to have the money for the parts and everything to go in it, that he didn't have money to buy. At that time I didn't have it, because I had already paid him what I had and what I could get. A while after that, I don't know exactly how long, maybe two or three weeks, I came back out there and asked him about it. He still hadn't put it together. I asked him about getting the automobile and see if I could get a transmission put in it. He objected. He said that he had to have his money. So that is how I left it, right there. It was sometime about the first of the year of 1950 when I first took it to him, or in the fall of 1949."
On cross-examination the same witness testified: "It is right, I carried the car over there in 1949 for repairs. I do not know the time of year. I figured it was somewhere around close to November . . . I do not know how far the car had been driven. I don't know the mileage. I do not know how far, I would not guess at it. I bought it July 6, 1945. It was a little over four years old when I bought it at a public sale in South Carolina. When carried to Mr. Chapman, the motor was in bad condition. It was using oil. I had worked with Mr. Chapman. I knew he was a good mechanic. I took it to see about the rings. He could not tell without going into the motor. I did not know the mileage of the car. It had no speedometer. I did not say that it was worth $750 before he fixed it. When I carried it to him, I imagine the market would be around $600. I don't know the market value. . . I imagine the car stayed there a couple of weeks the first time. The second time I took it there was in the fall of 1949. I filed this suit in 1950. In my bankruptcy proceedings I listed the car as part of my assets. At that time it was still in Mr. Chapman's garage. I remember coming here in the bankruptcy proceedings. I do not remember that the car was discussed at the hearing." Redirect: "I paid him between $150 and $200. He was to put a new motor in. At $400 undoubtedly. The value of the car would be as much as the work on it. He said that he put $400 on it. I imagine that he did. The value of the car would be as much as the work he did on it."
J. A. Mitchell, attorney, testified on behalf of the plaintiff: "I represented Mr. Roy Brewer in the bankruptcy proceedings. This is the list of the creditors. The amount shown Mr. Chapman is $226. I don't remember the referee in bankruptcy saying that he would do something for him. Exactly what he said, I do not remember. The referee just said: `You want that car?' Mr. Chapman said: `Yes.' The referee said: `I will give it to you.' There was no assignment. There was not any trustee in bankruptcy appointed on the estate. The car in question was listed among the assets of the bankrupt in the bankruptcy proceedings. I remember the referee in bankruptcy talking into one of these machines about giving the car to Mr. Chapman. Roy Brewer was discharged in bankruptcy August 16, 1950."
Carl Chapman, called for examination by the opposite party, testified: "I heard Mr. Brewer testify I put another motor in the car. Before I put it in, it was worth $100. After I put it in, it was worth $275, or $300. I sold it for $500. I sold it to a colored man for $500. It was worth $500. That is right. The suit had been filed at the time. I got the motor from the Chevrolet Motor Company. It was a new motor."
It will be noted that the evidence is undisputed that the title to the property was in the plaintiff. The record reveals a question of fact as to whether the defendant completed the work on the car in question according to his contract. The question is not made to the effect that the defendant failed to comply with the law regarding the assertion of his lien and to obtain possession of the car, if he had such lien.
Whether the defendant had such a lien is determinative of his rights. If he had such a lien, he must foreclose it in the manner provided by our State statutes. The procedure employed by the referee did not pass the title to the defendant, and could only have afforded an opportunity to foreclose a lien on the property if one existed. Forester v. Frizzell, 35 Ga. App. 562 ( 134 S.E. 182), and cases there dealing with estoppel do not apply here, inasmuch as estoppel does not apply on behalf of a defendant who has not pleaded it. Henry Hutchinson, Inc. v. Slack, 91 Ga. App. 353 ( 85 S.E.2d 620).
We reverse the judgment of the trial court and remand the case for another trial (if desired) on the facts, with proper instructions by the trial court as to the law applicable to the retention of the property by the defendant because of the claim of lien for material furnished and work done, taking into consideration the method provided by law for the foreclosing of liens in such cases.
Judgment reversed. Townsend and Carlisle, JJ., concur.