Opinion
36498.
DECIDED FEBRUARY 18, 1957.
Action on contract. Before Judge Henson. Fulton Civil Court. October 4, 1956.
Daniel B. Clark, Nick Long, Jr., for plaintiff in error.
A. Walton Nall, Nall, Sterne, Miller, Cadenhead Dennis, contra.
1. The trial court did not err in refusing to direct a verdict.
2. The evidence shows an option to buy, title remaining in the vendor, and under the facts of this case, the evidence is ample to support the verdict and judgment.
3. Where evidence adduced upon the trial of the case corresponds to the pleadings on the doctrine of estoppel, and where the evidence was admitted without objection, a charge upon the doctrine of estoppel is not erroneous.
4. Special grounds 4, 5, 6, 7 and 8 show no cause for reversal, under the peculiar facts of this case.
DECIDED FEBRUARY 18, 1957.
Claude S. Bennett, Inc., hereinafter called the plaintiff, brought suit against Donald K. Vanneman, hereinafter called the defendant, as follows: Count 1 alleged that the defendant was indebted to the plaintiff in the sum of $7,482.50 on an open account, and that demand was made and payment refused.
Count 2 alleged that the defendant was indebted to the plaintiff in the amount of $7,482.50 because of the following facts: That on or about December 26, 1953, the defendant entered into an agreement to purchase a certain diamond from the plaintiff; that the agreement provided that the defendant would have possession of the diamond and would make payment of $500 per month and that the sale of the diamond would become final not later than July 1, 1954; that while the diamond was in the possession and control of the defendant it was lost, stolen or misplaced because of the alleged carelessness and negligence of the defendant in failing to exercise the proper care for the safekeeping of the diamond; that demand was made on the defendant to return the diamond or pay the value thereof, but the defendant did not do so.
Count 3 alleged that the defendant was indebted to the plaintiff in the sum of $7,482.50 in that a certain diamond was consigned to the defendant by the plaintiff; that the defendant took possession of the diamond under the said consignment or option to buy and agreed to buy said diamond from the plaintiff at the termination of the consignment period, on or before July 1, 1954; that the defendant accepted the risk of loss of said diamond during the said consignment period; that while the defendant had possession and control of the diamond it became lost, stolen or misplaced because of the negligence of the defendant in failing to exercise care for its safekeeping by leaving the said diamond in an insecure place exposed to loss from numerous workmen who were in the home of the defendant on the day of the loss; that the defendant failed to abide by his agreement as to responsibility for loss during the consignment period and failed to pay the agreed price for the diamond.
The defendant answered denying all allegations of the petition except jurisdiction, consignment of the diamond to him, taking possession of the diamond on or about December 26, 1953, and for further plea and answer said: "(a) That said stone was consigned to him subject to final acceptance not later than July 1, 1954, and that at the time said stone disappeared, he had not finally accepted said stone and title thereto being in the plaintiff, such plaintiff assumed the risk for the loss, in particular by reason of the following facts: Subsequent to the consignment of said stone to the defendant, he procured a binder with the General Insurance Company of America with the intention of scheduling said stone and insuring it by endorsement under a personal property floater policy which he then had with General Insurance Company of America, and after said binder was issued and before scheduling the same under the terms of said existing insurance policy by endorsement, the General Insurance Company of America required a more accurate description of said stone and an appraisal thereof and asked defendant to provide the same; that thereupon, during the early morning of January 5, 1954, defendant contacted Mr. J. M. Rudder, president of the plaintiff corporation for such detailed description of the stone and an appraisal thereof so as to have said diamond properly protected by insurance; that on said occasion the said J. M. Rudder informed defendant that since the stone was in his possession on consignment and title thereto was in the plaintiff, that plaintiff's own insurance covered said stone in the event of loss or theft thereof and that it was unnecessary for defendant to secure such insurance protection in his own name; that defendant, in reliance upon these representations by the president of plaintiff corporation, cancelled the binder which he had procured in the General Insurance Company of America as of 11 a. m., January 5, 1954.
"(b) Defendant avers that it is his information and belief that the plaintiff did make claim for the loss of said stone with its own insurance carrier, representing in said claim so made that the title to the stone was in the plaintiff at the time of the loss and that said insurance company paid said loss, at least in part.
"(c) Defendant says by reason of the facts aforesaid the plaintiff is estopped to deny the title to the stone was in it at the time of said loss and that the risk of the loss of said stone was assumed by plaintiff."
At the trial the plaintiff made a motion for a directed verdict, which the court denied. The jury returned a verdict in favor of the defendant. The plaintiff made a motion for new trial on the general grounds and thereafter added eight special grounds, which motion was denied by the trial court and the case is here for review.
The evidence shows substantially as follows: James M. Rudder, vice-president and manager of the plaintiff, testified that the defendant selected the diamond which is the subject matter of this suit; that a tentative price was agreed upon and the transaction was reduced to writing; that the diamond was delivered to the defendant after it was set; that the option to sell or title-retention contract was prepared in the office of the plaintiff, was sent out with the diamond when it was delivered, and was signed by the defendant in pencil; that on or about January 5, 1954, the defendant discussed with the witness the matter of insuring the diamond under a personal property floater insurance policy which the defendant had with an insurance company, the defendant asking the witness for certain information about the diamond. The witness testified that the defendant "brought up the matter of insurance. I told him that I felt that our policy [meaning that of the plaintiff] would cover that. Now I know that is not probably what anybody would want to hear me say, in here. But I told him that. And I did further say: `But I will find out.'" Witness testified that the diamond "got gone" before he found out. The same witness called and testified that the defendant's wife called him by telephone the same day the diamond was discovered missing; that immediately he called the police department and Pinkerton's Detective Agency; that he called Mr. Hartner, who was connected with the insurance company with whom the plaintiff does business. John North, employed by the General Insurance Company of Seattle, at the time he was approached regarding insuring the diamond, and who held a general floater insurance policy for the defendant, testified that he issued a binder contract of insurance on December 31, 1953, under a personal property floater insurance policy on the diamond in question in this suit; that on December 31, 1953, the defendant called the witness and asked about getting the diamond insured; that the witness asked the defendant for a jeweler's appraisal, description as to weight and color, etc., for insurance purposes on the diamond; that he held the binder with the notation "hold for further information" but not hearing from the defendant for several days he called the defendant, asking for the appraisal, whereupon the defendant said: "It will not be necessary. I have been instructed by the jewelry firm who this stone belongs to . . ." The witness testified that the reason for lifting the binder was that the defendant understood that there was double insurance. And acting on his instruction, he lifted it. This was done as of 11 a. m. on January 5, 1954. The loss of the diamond was reported to the witness at approximately 3:30 o'clock of the same date.
The defendant testified that he had a conversation with Mr. Rudder, the vice-president and manager of the plaintiff, substantially to the same effect as Mr. Rudder's testimony. The witness testified that he talked with Mr. Rudder on two occasions regarding the insurance on the diamond and Mr. Rudder told the witness that he felt the diamond was insured by the plaintiff. He testified that since he did not have title to the diamond, hence no insurable interest, he saw no reason to have it insured a second time. He testified that he called a Mr. North (connected with the company who handled the binder) and told Mr. North the substance of the defendant's conversation with Mr. Rudder and had the binder lifted on the diamond at approximately 11 o'clock on January 5, 1954. He testified that the same care was used in protecting the diamond as was used in protecting other jewelry owned by him and/or his wife; that he turned over the diamond to his wife, explaining the circumstances of its purchase and testified that Mr. Rudder knew he was to do this. The same witness was recalled and testified that the invoice on the diamond was dated December 26, 1953.
The defendant's wife testified that she cared for the diamond as she cared for other jewelry in her possession; that when she discovered the loss of the diamond she immediately called her husband, then called Mr. North, leaving messages as to the urgency of the matter so that she would be called immediately as soon as each of them was available; that the police department was on the job investigating the matter the same day on which the loss was discovered; that she called Mr. Rudder when she failed to reach her husband or the insurance agency immediately.
The invoice shows substantially the following: Date, December 26, 1953, Claude S. Bennett, Diamond Merchants, vendor; Mr. Donald K. Vanneman, 3198 Habersham Road, N.W., vendee. Merchandise: One diamond to be set in customer's mounting $7,300 plus sales tax, $182.50, total $7,482.50; and further: "This diamond is consigned to Mr. Vanneman subject to final acceptance not later than July 1, 1954. It is agreed that payment of $500 a month will be paid." This was signed by the defendant. The reverse side of the contract, also signed by the defendant, shows, among other things: "The title to said property is to remain in vendor until all of the purchase price has been fully paid. There shall be no abatement in the purchase price on account of any loss, damage or destruction of said property, whether due to the fault of vendee or not. Upon fully complying with the terms of this contract, the title to said property shall vest in vendee." The record shows that the defendant secured a binder shown as an exhibit in the record, on December 31, 1953, which binder was lifted on January 5, 1954, as shown hereinabove.
1. To refuse to direct a verdict is within the discretion of the trial court and in the absence of abuse of such discretion, this court will not reverse a case for such refusal.
2. We have set out substantially all of the evidence adduced at the trial and find it ample to support the verdict and judgment. The general grounds are without merit.
3. Special grounds 1, 2 and 3 of a motion for new trial assign error because it is alleged that the court erred in charging the doctrine of estoppel. It will be noted that the pleadings as set out hereinabove show that estoppel is pleaded properly. It will be noted that the diamond was consigned to the defendant with option to purchase and subject to final acceptance not later than July 1, 1954. It will be noted also that in count 3, paragraph 4, the plaintiff shows that the defendant took possession of said diamond under said consignment with option to purchase and agreed to buy said diamond from the plaintiff at the termination of the consignment period on or before July 1, 1954. The evidence shows that the diamond disappeared during the period of the consignment with option to purchase. The question as to whether or not the defendant would have been liable after July 1, 1954, is not before the court. The evidence adduced upon the trial clearly brought in question the doctrine of estoppel and such evidence corresponded to pleadings of estoppel. Moreover, the evidence regarding estoppel was admitted without objection. See Fletcher v. Reaves, 28 Ga. App. 205 (2) ( 110 S.E. 510). It is not necessary that the pleader use the word "estoppel." Facts on which estoppel rest must be pleaded and proved. This was done and it was clearly the duty of the trial court to charge upon the doctrine of estoppel. Special grounds 1, 2 and 3 are not meritorious.
4. Special grounds 4 assigns error because it is alleged that the court erred in allowing in evidence the testimony of an insurance agent of the defendant as to the conversation which took place when the defendant called the insurance agent to have the binder lifted. Counsel for the plaintiff objected to this testimony. The court said: "I think he has the right, under the circumstances, and in view of your interrogation, to explain why he lifted the binder, and what his instructions were." The same evidence had been developed previously from a witness for the plaintiff as well as for the defendant, and the testimony of the witness North was not harmful to the plaintiff. The court did not err in this respect. This special ground is not meritorious.
5. Special ground 5 assigns error in that the binder was presented as an exhibit. The plaintiff contends that the defendant had no title or insurable interest in the diamond at the time its loss was discovered, having given the diamond to his wife, and that this exhibit had no place in the evidence. It is elementary that regardless of the person to whom the defendant "gave" the diamond, had the defendant not complied with the terms of the contract of assignment or option to purchase, the diamond would have been repossessed by the plaintiff. There is evidence that the defendant explained the whole transaction to his wife and it may be assumed that she understood that if the defendant did not decide by July 1, 1954, to purchase the diamond it would be returned to the plaintiff's jewelry store. The diamond was still in the possession of the defendant, even though being used by the defendant's wife. A straight contract of purchase was not involved, only a contract of assignment or option to purchase. The law is as stated in McKenzie v. Roper Wholesale Grocery Co., 9 Ga. App. 185 ( 70 S.E. 981): "An option to the effect that the consignee may purchase the goods is not incompatible with a contract of consignment; but in such cases the consignee does not become bound as a debtor for the purchase price until he exercises his option to buy, or until he disposes of the goods or violates his contract of consignment." On page 188 of the same case the court said: "In consignments the bailee is merely the agent of the bailor, and the bailor can not force him to pay for the goods, unless he has sold them, has appropriated them to his own use, or has violated the contract of agency." In view of the whole record in this case presenting the issue of title to the diamond and the insistence on the part of the plaintiff that the defendant pay for the diamond, we are of the opinion that this exhibit was supported by other testimony and was admissible. The trial court did not err in admitting this exhibit. Special ground 5 is without merit.
6. Special grounds 6 and 7: Special ground 6 assigns error because the court did not charge, without a written request, the definition of a contract. Special ground 7 assigns error because the court failed to charge without a written request, the essentials of a contract. The court charged that the instrument was an option to purchase. In view of the whole charge of the court, which was full and comprehensive, and in the absence of a timely written request so to charge, the court did not commit reversible error as set out in special grounds 6 and 7.
7. Special ground 8 assigns error in that the court should have charged as follows: "Where one having a right to accept or reject a transaction, takes and retains benefits thereto, he becomes liable thereby." In this consignment or option to buy contract, it would seem that the contract which was to exist from December 26, 1953, to July 1, 1954, would have no excuse for existing had the defendant not been given possession of the diamond. Otherwise the defendant obviously would have waited until July 1, 1954, or some other time and purchased the diamond outright by a proper contract of sale. Possession was all he got out of the option to buy it at a future time. This ground is not meritorious.
The court did not err in any of the rulings.
Judgment affirmed. Carlisle, J., concurs. Townsend, J., concurs specially.
The printed form signed by the defendant was a retention-title contract under which, upon loss or destruction of the property, with or without fault of the vendee, there would be no abatement of the purchase price, and under this provision the plaintiff could recover even though title did not pass, unless estopped to urge this provision of the contract as contended by the defendant. However, the printed provisions of a contract, when in conflict, must yield to those written in, as follows: "This diamond is consigned to Mr. Vanneman subject to final acceptance not later than July 1." Such a contract amounts only to a contract of bailment. Whitaker v. Paden, 78 Ga. App. 145, 147 ( 50 S.E.2d 774) and citations. The contract might have further provided that any loss while the merchandise was in the defendant's possession would fall on him, but it failed to do so. What it did provide was that loss would not abate the purchase price, and until the defendant exercised his option to buy there was no purchase price to abate. It follows that under the circumstances here set forth the defendant was liable merely as a bailee — that is, if he had not purchased the property by July 1, 1954, he would have owed the plaintiff the duty of returning it. Prior to such time he was entitled to its possession, and owed the plaintiff the duty of exercising ordinary care to avoid loss or damage to it. The plaintiff apparently proceeded on this theory by alleging, in counts 2 and 3, that the ring disappeared due to the defendant's negligence. In my opinion this is the crux of the case. The evidence presented a jury question as to whether or not the defendant was negligent, and the jury resolved this question in favor of the defendant. Under this view of the case, special grounds 3 and 4 are without merit for the reason that the defendant had a right to plead and prove acts of the plaintiff which he contended prevented him from insuring the property as a circumstance showing the care he exercised toward it. Also, under this theory, if the loss was the result of the defendant's negligence, his measure of damages would have been the reasonable value of the property rather than the contract price, although the latter, of course, would be evidence of the former.