Opinion
38479.
DECIDED OCTOBER 18, 1960.
Trover. Fulton Civil Court. Before Judge Camp. June 14, 1960.
Franklin B. Anderson, for plaintiff in error.
Powell, Goldstein, Fraser Murphy, Robert R. Harlin, James L. Rankin, contra.
The evidence in this case does not demand a finding that the defendant rescinded the conditional-sale contract and converted the automobile described therein to its own use, and the court did not err in overruling the plaintiff's motion for a new trial on the general grounds.
DECIDED OCTOBER 18, 1960.
Josephus Peters instituted an action in trover against the American Discount Company to recover a certain Ford automobile. The uncontradicted evidence showed that the Discount Company owned the written title to the Ford by virtue of a conditional-sale contract executed by the plaintiff, payable to Wade Motor Company and transferred to the Discount Company; that of the $3,770.28 owed in the contract by the plaintiff he had made only five payments of $104.73 each, for the instalments due April 7, May 7, June 7, July 7, August 7, 1959, and that at the time the Discount Company took possession of the Ford on October 5, 1959, and at all times thereafter, there was an unpaid balance of $3,246.63; that the instalment of $104.73 due on September 7, 1959, was not paid and that no instalment maturing thereafter was paid; that the Ford was damaged in an accident on August 29, 1959, and that the plaintiff had it towed to Wade Motor Company, where he had purchased it, for the purpose of having it repaired; that the damages to the Ford which were caused by the accident were repairable, and that the estimates for repairs ranged from about $900 to $1183; that the collision insurance policy contained a $50 deductible clause and that the loss payee of the insurance policy was the Discount Company; that the Ford in its damaged condition had a fair value ranging from $1100 to $1300 and that the speedometer showed 15,057 miles; that although the Ford was repairable, the plaintiff refused to settle the loss with the insurance adjustor and demanded another automobile; that he signed a proof of loss and noticed that the defendant Discount Company was a joint payee of the check for the amount of damages, to be used to pay the repair bill, he tore up the proof of loss and notified the adjustor that his car had been repossessed and that the plaintiff had no further interest in the claim; that on October 6, 1959, the day after the Discount Company had repossessed the Ford, the plaintiff demanded that the Discount Company replace the Ford with a new car; that the plaintiff made no demand for the return of his wrecked Ford; that the defendant took possession of the Ford from Wade Motor Company on October 5, 1959, and paid the storage charges which the plaintiff had incurred by reason of carrying the automobile to the Wade Motor Company; that the conditional-sale contract provided that in the event of default in the payment of any instalment the holder of the contract could declare the entire balance due and owing on the contract without notice to the purchaser and could take immediate possession of the property without legal process and without demand and hold the same for the purchaser without any responsibility or liability on the part of the holder, and that the holder could resell the property at public or private sale with or without advertisement and with or without notice to the purchaser, and that the proceeds of any such sale should be applied to the expenses of retaking, repairing, storing or selling such property, and the balance applied to the amount due the holder. One important question in dispute under the evidence was whether the plaintiff tendered to the Discount Company on October 6, 1959, the September 7, 1959, instalment of $104.73, then past due.
The court trying the case without a jury found in favor of the defendant. The plaintiff excepts to the overruling of his motion for a new trial on the general grounds.
The plaintiff contends that a verdict was demanded in his favor under the rule in Tifton Chevrolet Co. v. Mathis, 44 Ga. App. 839 ( 163 S.E. 308) and Dasher v. Williams, 30 Ga. App. 122 ( 117 S.E. 108). There was no rescission of the contract as a matter of the law under the Mathis case, supra, for the reason that the evidence was conflicting as to whether the plaintiff made a tender of the September 7th instalment. The court was authorized to find that no such tender was made. No finding was required that there was a rescission under the Williams case, supra, in that there is no evidence that the Discount Company repossessed the property and treated it as its own without giving the buyer any credit for its value. The Ford was repossessed on October 5, 1959. The trover action was filed on October 13, 1959. There is no evidence whatever, as stated, to show that the Discount Company treated the Ford as its own after repossession. The Ford had been damaged extensively and it would seem that the Discount Company would have the obligation to the plaintiff to decide whether to have the Ford repaired before selling it under the power granted in the conditional-sale contract so as to obtain the best possible price and if it decided that it was to the best interest of all concerned to have the car repaired, it should be allowed a reasonable time for having such repairs made without being charged with any misconduct with reference thereto. It can not be inferred from the mere fact that the discount Company retained possession of the Ford for one week after possession that it had treated the Ford as its own since repossession and had therefore rescinded the conditional-sale contract. The record is silent as to whether the car had been repaired and sold or sold without repair and that the defendant had failed to give proper credit on the contract to the plaintiff. The repossession of property under the terms of a conditional-sale contract does not in itself rescind the contract. Barrett v. Distributors Group, Inc., 85 Ga. App. 529 ( 69 S.E.2d 810); Carter v. General Finance Thrift, Inc., 96 Ga. App. 423 ( 100 S.E.2d 99); Phillips v. Drake Motor Co., 68 Ga. App. 618 ( 23 S.E.2d 538); Hargett v. Muscogee Bank, 32 Ga. App. 701 (5) ( 124 S.E. 541).
The court did not err in overruling the motion for a new trial.
Judgment affirmed. Nichols and Bell, JJ., concur.