Opinion
33250.
DECIDED MARCH 1, 1951. REHEARING DENIED MARCH 13, 1951.
Trover; from DeKalb Superior Court — Judge Guess. July 21, 1950. (Application to Supreme Court for certiorari.)
Drennan Brannon, Howard, Tiller Howard, John D. Humphries, for plaintiff.
Fraser Shelfer, for defendant.
The evidence authorized the verdict in favor of the defendant, and the court did not err in overruling the motion for a new trial based solely upon the general grounds.
DECIDED MARCH 1, 1951. REHEARING DENIED MARCH 13, 1951.
The East Atlanta Bank instituted an action of trover against Dean Waters and J. W. Nicholson to recover three automobiles, a 1941 model Ford, a 1946 model Chevrolet, and a 1947 model Buick, each of which was more particularly described in the petition. The defendant Dean Waters was apparently not served and did not appear as a defendant on the trial of the case. The defendant Nicholson appeared and filed an answer of general denial, and upon the trial of the case, the jury returned a verdict in favor of Nicholson. The plaintiff's motion for a new trial, based solely upon the general grounds, was overruled and it excepted.
It appears from the evidence that the plaintiff claimed the automobiles by virtue of three bills of sale to secure debt which the Waters Motor Company, by its owner, Dean Waters, had executed to the plaintiff on February 9 and 17, 1948, to secure three loans made to Waters by the plaintiff. The plaintiff bank had been making loans of this nature to Waters for a period of three years. The president of the plaintiff bank testified that he had approved the loans on the three cars, but that he did not see the automobiles before the loans were made, but that in the usual course of making loans to Waters the bank would take a bill of sale from Waters, showing a complete description of the automobiles and Waters would say that he owned the automobiles and that they were free of any encumbrance, and each bill of sale contained a warranty of title. He further testified that he "did not have any knowledge whatsoever of any other claim or any one else claiming any interest in any of these automobiles at the time the bank made the loan," and that neither the defendant Nicholson nor any one else had put him on notice that he had any interest in Waters' business. The president of the bank also testified that he did not go to Waters' place of business to see the automobiles before the loan was made and "[he] made no other investigation as to the ownership of the automobiles; [he] took Mr. Waters' word for the fact that he owned them and his warranty in the bill of sale; [he] did not even ask him for the bill of sale or ask him where he bought the cars; or didn't ask him to show [him] his bill of sale or show [him] his title. [He] didn't ask him [Waters] to show [him] a transfer of a driver's license, or tag license, because frequently this information was taken from the tag." Mr. Waters testified that at the time he executed the bills of sale to the plaintiff he had the automobiles in question in his possession; that he did not tell the president of the bank or any of its other officials that Nicholson had any interest in his business; that Mr. Nicholson would buy automobiles, or that he (Waters) would buy some for Nicholson, and he (Waters) would sell the automobiles and he and Nicholson would "split" the profits on the automobiles belonging to Nicholson; that he (Waters) bought and sold a number of automobiles in which Nicholson had no interest. He explained his relationship with Nicholson thus: "The way I kept books with Mr. Nicholson was to give him one of these receipts (referring to defendant's exhibits "D," "E," and "F"). Whenever he would turn a car over to me for sale it was his car and I was going to divide the profits with him. He got half the profit for putting up the money. Whenever Mr. Nicholson would buy a car or reimburse me for a car, I would give him a receipt for that car. When I sold a car that belonged to Mr. Nicholson I would take the receipt back and tear it up. He would hold these receipts as long as I had the cars. I borrowed money on them from the bank, but the cars belonged to Mr. Nicholson; however, I didn't tell the bank and they thought the cars belonged to me. Where I bought these cars they would give me the tag slip and sometimes I had a bill of sale that they would sign over to me, but I don't know where any of those papers are. I never took any bills of sale in the name of Mr. Nicholson, when I bought them." Another witness, Paul Brecht, testified that it was a common practice in Atlanta for used-car dealers to accept automobiles on consignment for sale from individuals and finance companies. The defendant testified that Waters had purchased the 1941 Ford from a Dr. Martin and had given Martin a check for the purchase-price, but that he (Nicholson) had reimbursed Waters by giving him in cash the amount of the check. With reference to the Chevrolet, Nicholson testified that he had purchased this automobile from a Mr. Dawn, who had paid in cash, and that he turned it over to Waters for sale. With reference to the Buick, he testified that Waters had purchased it by check from the former owner and that he (Nicholson) had reimbursed Waters for the amount of the check. He further testified that he had not given Waters permission to borrow money on the cars, but he had merely turned them over to Waters to be sold. The notes and bills of sale executed by Waters to the plaintiff bank, and the receipts for the automobiles, executed by Dean and Charles Waters were introduced in evidence.
The jury was authorized to find that the defendant left three automobiles in the possession of Waters, a used-car dealer, under an agreement that the dealer and the defendant would, upon the sale of the automobiles, divide the profits; that the defendant is the true owner of the automobiles; that the used-car dealer, instead of selling the automobiles, executed a bill of sale to each of the automobiles in favor of the plaintiff bank to secure loans made by the bank to the dealer; that the plaintiff bank made the loans to the used-car dealer solely upon the representation of the dealer that he owned and was in possession of the automobiles and the officials of the bank making the loan had never seen the automobiles in question in the dealer's possession prior to making the loans; that the plaintiff bank made no investigation whatsoever of the dealer's title to the automobiles, and placed no reliance upon the dealer's apparent authority, indicia of title, possession, or upon any evidence of the right of selling the automobiles as, according to the custom of trade or the common understanding of the world, usually accompanies the authority of disposal. The jury was further authorized to find that the defendant had done nothing to mislead or deceive the plaintiff to make the loans to Waters.
Under this state of facts, which the jury was authorized to find existed, the defendant was not estopped by the provisions of Code § 37-113 from asserting his title to the automobiles, nor is the defendant divested of his title to the automobiles by virtue of the provisions of Code § 96-207. The defendant did nothing to mislead or deceive the plaintiff to make the loans to Waters. The plaintiff relied upon nothing except Waters' word in making the loans. The defendant conferred no power upon Waters which was used to inflict the injury upon the plaintiff. The evidence, therefore, authorized the verdict. There is nothing in Commercial Bank v. Armsby, 120 Ga. 74 ( 47 S.E. 589); Willingham v. McGuffie, 18 Ga. App. 658 ( 90 S.E. 356), Blount v. Bainbridge, 79 Ga. App. 99 ( 53 S.E.2d 122), or Commercial Credit Corp. v. Citizens Southern National Bank, 68 Ga. App. 393 ( 23 S.E.2d 198), contrary to what is here held.
The court did not err in overruling the motion for a new trial, based solely upon the general grounds.
Judgment affirmed. Gardner and Townsend, JJ., concur.