Opinion
36852.
DECIDED SEPTEMBER 27, 1957.
Action for money paid under contract. Before Judge Etheridge. Fulton Civil Court. July 10, 1957.
Joe Salem, for plaintiff in error.
Currie, McGhee Weltner, contra.
1. The court was authorized to find that there had been no mutual departure from the terms of the contract, which, under Code § 20-116, would require notice before strict compliance could be relied upon.
2. The evidence authorized the finding that the defendant gained possession of the plaintiff's automobile for the purpose of repossession and sale under the default provision of the contract.
DECIDED SEPTEMBER 27, 1957.
Hoover Carter sued General Finance Thrift Corporation for money the plaintiff had paid to the defendant on a note and conditional-sale contract. The plaintiff purchased an automobile from a dealer and executed a conditional-sale contract and a note for the balance of the purchase price on the automobile. The dealer transferred the note and conditional-sale contract to the defendant. The plaintiff over a period of some 16 months made various payments in varying amounts to the defendant. The plaintiff alleged that "on or about October 13, 1956, the defendant herein sent one of their agents, whose name is not known to the plaintiff, but is well known to the defendant, to your plaintiff's home and requested him to come down to the office so that they could refinance said automobile. Your petitioner then drove his automobile to the office of General Finance Thrift Corporation and parked same on their lot. He and the agent then went into the office, whereupon the office personnel informed him to have a seat, that they were drawing up the refinance papers. After the office personnel discussed this matter with themselves, your petitioner was informed by one of the agents in said office, whose name is not known to your petitioner, but is well known to the defendant herein, that they would not refinance the car, but that your petitioner would have to pay the balance due, $1,674, before he could drive said car off of the defendant's lot. Your petitioner further shows that at said time he was only $42.11 in arrears in his payments and that he had never been notified by the defendant herein that said defendant was compelling your plaintiff to a strict compliance of the terms of the contract as set out herein, and that by the acts set out herein the defendant did rescind the sales contract as set out herein, and that further that said contract is vague and indefinite as to the amount of payments due each and every month, and that said waiver of strict compliance by the defendant amounted to a rescission of said contract." The plaintiff alleged that the reasonable hire of the automobile was $50 a month and that the defendant owed to him the difference between the reasonable hire of the automobile and the amount the plaintiff had paid thereon.
The case was tried by the judge sitting without the intervention of a jury. The judge found for the defendant. The plaintiff's motion for new trial based on the general grounds only was denied and he excepts.
1. The plaintiff admits that he had not made the monthly payments called for under the contract on their due dates, but contends that by the defendant's continual acceptance of payments less than the sums due and on dates after they were due, the parties had through a course of dealing modified the contract respecting these monthly payments and that before the defendant could hold the plaintiff to a strict compliance with the terms of the contract, the defendant was required, under the authority of Code § 20-116, to give the plaintiff the required notice, which the plaintiff contends the defendant never gave. The plaintiff further contends that the defendant never gained possession of the automobile for the purpose of repossession and sale under the terms of the contract but had merely regained possession of the automobile for the purpose of storage until the plaintiff brought his account to a current basis.
A departure from the terms of a contract relied on to require notice of intention of strict compliance must be mutual between the parties and must have been intended. Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695, 704 (4) ( 58 S.E. 200); Southern Feed Stores v. Sanders, 193 Ga. 884 (3) ( 20 S.E.2d 413). The question of mutual departure is generally one for a jury to determine. Mauldin v. Gainey, 15 Ga. App. 353 (5) ( 83 S.E. 276); Craig v. Craig, 53 Ga. App. 632, 635 (2) ( 186 S.E. 755); Haynie v. Murray, 74 Ga. App. 253 (2) ( 39 S.E.2d 567); Prothro v. Walker, 202 Ga. 71 (1a) ( 42 S.E.2d 114). The court was authorized to find that the defendant had not intended to depart from a strict compliance with the contract regarding the time and amount of monthly payments by accepting payments which were not on time and were not in the full amount, especially in view of the evidence that during the life of the contract the defendant had made or had attempted to make forty-two contacts with the plaintiff regarding the status of his account.
2. The court was further authorized to find that the defendant gained possession of the car from the plaintiff for the purpose of repossession and sale under the default provision of the contract. The plaintiff alleged in his petition that at the time he brought the automobile in to the defendant's office at their request, he was informed by the defendant that they would not refinance the automobile but that he would have to pay the entire balance due before the defendant would allow the plaintiff to take possession of the automobile. There was also evidence on the part of the defendant that their intention was to repossess the automobile for the purpose of sale rather than to store the automobile until the plaintiff could put his account on a current basis. So long as an allegation remains in a plaintiff's petition, such allegation is conclusive against him. Head v. Lee, 203 Ga. 191, 203 (8) ( 45 S.E.2d 666); Mitchell v. Arnall, 203 Ga. 384, 386 (8) ( 47 S.E.2d 258). Thus, where the plaintiff alleged that when he brought the car into the defendant's office the defendant demanded that the account be paid in full, the plaintiff's testimony that on that occasion the defendant only requested a payment to bring the account to a current basis was without probative value and could not be considered by the court.
The defendant was not required to give the plaintiff notice that it was going to repossess the automobile in accordance with the terms of the contract. Heist v. Dunlap Co., 193 Ga. 462, 466 (3) ( 18 S.E.2d 837).
A repossession under the terms of a contract does not in itself rescind the contract. Barrett v. Distributors Group, Inc., 85 Ga. App. 529 (2) ( 69 S.E.2d 810); Dickerson v. Universal Credit Co., 47 Ga. App. 512 ( 170 S.E. 822).
Since the evidence authorized the judgment, the court did not err in denying the motion for new trial.
Judgment affirmed. Quillian and Nichols, JJ., concur.