Opinion
36784.
DECIDED JULY 11, 1957. REHEARING DENIED JULY 31, 1957.
Trover for automobile. Before Judge Henson. Fulton Civil Court. May 1, 1957.
Hurt, Gaines, Baird, Peek Peabody, for plaintiff in error.
Ben T. Beasley, Jr., contra.
Where a car is purchased by a check, later found to be worthless, and where such car is put into possession of the purchaser and is later sold by the original purchaser to an innocent purchaser for valuable consideration, trover will not lie for the original seller to recover the property.
DECIDED JULY 11, 1957 — REHEARING DENIED JULY 31, 1957.
Gouldman-Taber Pontiac, Inc., filed a trover action in the Civil Court of Fulton County against J. Leroy Thomas and Granger O. Woodall, d/b/a Thomas Woodall. Under a stipulation of facts the judge, without the intervention of a jury, rendered judgment in favor of the defendants. The motion for new trial on the general grounds only was denied and the case is here for review.
The defendants answered the action by denying that the plaintiff had any title, interest or right of possession of the car involved and claimed complete title to be in the defendants.
The entire evidence consists of stipulations between the parties as follows: "(a) That the plaintiff in this case, was owner of a certain automobile, described as a 1954 Chevrolet, four-door, designated by serial No. F54Z0338288, at the time of the transaction with T. W. Payne set out below.
"(b) That on or about the 29th of May, 1956, Mr. T. W. Payne, came to the place of business of the plaintiff in this action, and purported to buy the automobile in question from the plaintiff, telling the plaintiff that he would give him his check for the purchase price, which is stipulated to be $995 plus $29.85 tax, or a total of $1,024.85.
"(c) That there was a discussion about the check which T. W. Payne was to give, and a conversation was had over the telephone between Mr. Holton, the salesman, and someone at the Trust Company of Georgia where the money was to be loaned to Mr. Payne to cover this automobile.
"(d) Plaintiff in this action, delivered the automobile to Mr. Payne, giving him the keys therefor immediately, and said Payne gave plaintiff his check for the purchase price.
"(e) Thereafter, plaintiff paid a commission to the salesman, Mr. Holton, on this sale, but after learning that the check given to them by Mr. Payne was no good, plaintiff recharged back the amount of commission to the salesman.
"(f) In the meanwhile, on the 29th day of May, of this same year, Mr. Payne, having the automobile in his possession, and having the keys thereto, approached the defendants, Messrs. Woodall and Thomas, and offered to sell them the automobile in question and Mr. Woodall purchased the automobile in question on behalf of the defendants from Mr. Payne, and accepted delivery of the automobile, and gave Mr. Payne his check in the amount of $890 in full payment for said automobile.
"(g) The check given by Mr. Payne was worthless and never paid.
"(h) That thereafter, the plaintiff in this action, discovered that this automobile was in the hands of Mr. Woodall of the firm of Thomas Woodall, and made demand therefor, and upon refusal to deliver, this action was brought.
"(i) At the time of the delivery of the car to Payne, no bill of sale or State registration license certificate or other writing was delivered to Mr. Payne by the plaintiff or its agents.
"(j) Mr. Woodall questioned Mr. Payne as to his credit and received credit references.
"(k) The value of said automobile at the time it was purchased by defendants was $890.
"(l) The reasonable hire for said automobile was $5 per day."
This case concerns the sale of a car to a person who paid for the car by a check (the check made in payment being returned later, showing insufficient funds to cover); the car was immediately sold to a third party who paid for the car by check; possession was given by the original owner to the party who first bought it and possession was given by that purchaser to the third party involved.
Counsel for the plaintiff cites and relies on Sparkman v. Brown, 42 Ga. App. 335 ( 156 S.E. 240) as authority for reversal. The case at bar differs from that case in that in the Sparkman case the purchase money was never tendered in any form. In the instant case the purchase price was paid, although by a check which later proved to be worthless. In Taylor v. Gill Equipment Co., 87 Ga. App. 309 ( 73 S.E.2d 755) a Diesel engine was delivered to a purchaser in Chicago under the specific agreement that cash would be remitted as soon as the purchaser arrived in Junction City, Georgia. The purchaser did not remit and the property was subject to trover action. The case at bar differs from Chafin v. Cox, 39 Ga. App. 301 ( 147 S.E. 154) because of the difference in the trade practices in the automobile industry as compared with the trade practices involving other personal property. Car dealers have set up a certain procedure for the trade, differing widely from practices of retailers of other types of personal property. The instant case differs from Bank of Waynesboro v. Davis, 35 Ga. App. 201 ( 132 S.E. 246) for the same reason. It occurs to us that the transactions from beginning to end were handled in a loose manner. The record does not disclose that the State registration certificate was transferred nor did a bill of sale accompany either of the transactions. Code § 96-207 provides: "Where an owner has given to another such evidence of the right of selling his goods as, according to the custom of trade or the common understanding of the world, usually accompanies the authority of disposal, or has given the external indicia of the right of disposing of his property, a sale to an innocent purchaser divests the true owner's title." When the plaintiff accepted the check and turned possession of the car over to the purchaser, the purchaser having the apparent right of ownership, he could and did dispose of the property to an innocent third party for valuable consideration and by so doing divested the plaintiff of title, under the record in this case. Nations v. Lassiter, 94 Ga. App. 504 ( 95 S.E.2d 25) does not take this case out of the rule of law protecting an innocent third party purchaser for value. In Capital Automobile Co. v. Ward, 54 Ga. App. 873 ( 189 S.E. 713) this court held: "Where an owner of personal property agrees to sell it to another person for cash, and on delivery of the property to the purchaser, accepts checks in payment, and thereafter such purchaser, having been placed in possession of the property by virtue of such agreement to sell, sells it for a valuable consideration to a third person who has no notice of the true owner's title, the owner is thereafter estopped to set up his title as against such third person, although the checks so given, on due presentation to the drawee bank, are returned as worthless." In Blount v. Bainbridge, 79 Ga. App. 99 ( 53 S.E.2d 122) this court held: "Where the owner of an automobile offers it for sale at an auction, and it is unconditionally delivered to such purchaser, the seller accepting a check for the purchase-price, and such purchaser sells it for a valuable consideration to a third person who has no notice of the giving of the check, the title of the original owner is divested or he is estopped from asserting it as against the innocent third party purchaser, although the check is unpaid and returned as worthless." See also Hall v. LeCroy, 79 Ga. App. 676 ( 54 S.E.2d 468) wherein it is held: "Where, from the stipulations of fact agreed upon by the parties to a trover suit brought by P against D, it appears that P sold an automobile truck to A, and took in payment therefor A's personal check, that A subsequently sold the truck to B who then sold to D, under such facts as to show that D had no notice of the dishonor of A's check, a verdict and judgment for D were authorized, and the court did not err in overruling the plaintiffs motion for a new trial." In that case this court said, on page 678: "Although some decision of our appellate courts seem to have held contrary to the foregoing authority, this court in Capital Automobile Co. v. Ward, supra, after citing such contrary decisions, concluded that `Those decisions must, of course, yield to former decisions of this court and the Supreme Court, and to the provision of our Code.'
"`Where an owner has given to another such evidence of the right of selling his goods as, according to the custom of trade or the common understanding of the world, usually accompanies the authority of disposal, or has given the external indicia of the right of disposing of his property, a sale to an innocent purchaser divests the true owner's title.' Code § 96-207. Blount v. Bainbridge, supra." It appears that this court has, as shown hereinabove, used Capital Automobile Co. v. Ward, 54 Ga. App. 873, supra, as a basis for reconciling previous holdings of the appellate courts which appeared to be in conflict, and that case holds in favor of the defendants here. We adhere to that decision and affirm the judgment of the trial court, based on Capital Automobile Co. v. Ward, supra.
Judgment affirmed. Townsend and Carlisle, JJ., concur.