Opinion
37705.
DECIDED JUNE 29, 1959.
Action on contract. Habersham Superior Court. Before Judge Frankum. January 27, 1959.
Kimzey Kimzey, Herbert B. Kimzey, R. C. Scott, for plaintiff in error.
Kimzey Crawford, Linton K. Crawford, Sam Kimzey, contra.
1. A custom may not be considered a part of an express and unambiguous contract when the custom is inconsistent with and repugnant to the contract.
2. Where a conditional vendor obtains property from the vendee for a purpose other than that of exercising a power of sale, notice by the vendor to the vendee that the property is to be retained and sold under the terms of the contract is insufficient to authorize the exercise of the power of sale contained in the contract, and the vendee is not to be held to acquiesce in such a sale by reason of the fact that he does not protest against it after such a notice.
DECIDED JUNE 29, 1959.
Trailmobile, Inc., sued Corbett J. Church to recover a balance allegedly due on a conditional-sale contract given for the purchase price of a Trailmobile trailer. The petition alleged that the defendant failed to pay the purchase price when due and the plaintiff repossessed the trailer under the terms of the contract and sold it for $3,800, and that after crediting the defendant with rebates or finance charges and insurance premiums there was a balance due of $1,339.44. The action also was to recover $35.66 for repairs to the trailer. The defendant filed an answer in which he alleged that the repossession of the trailer by the plaintiff was illegal and that the plaintiff converted the trailer to its own use and was indebted to the defendant in the sum of $363.38 after allowing the sum of $1,424.05 as the reasonable rental value of the trailer for the time it was used by the defendant. The answer further alleged that at the time of the execution of the contract there was a universal custom among sellers and purchasers of trailers to the effect that in the event of a strike whereby trailers could not be used in their accustomed routes the instalments due for the periods of time a strike continued would not cause a default in the contract but that the due date of the payments would be postponed until the termination of the strike and that by reasons of a strike the instant contract was not in default due to the custom. The answer further alleged that the purported sale of the trailer by the plaintiff for $3,800 was illegal in that the plaintiff acquired possession of the trailer for the purpose of repairing it for the defendant and for no other purpose and that the plaintiff did not restore the possession of the trailer to the defendant or offer to do so before said alleged illegal sale. The plaintiff excepted to so much of the defendant's answer as set out the custom with respect to postponement of the due dates of instalments on the contract and the court sustained it. The court directed a verdict for the plaintiff. Defendant excepts to the sustaining of the demurrer to his answer and the denial of the motion for a new trial which was based on the alleged error in the direction of a verdict.
1. The contract sued on provides for the payment of the principal and other charges in 35 equal successive monthly payments of $213 beginning on October 25, 1956. The custom pleaded by the defendant was inconsistent with and repugnant to the express terms of the contract and could not be urged for a purpose which would have altered the provisions of an unambiguous express contract. Maddox v. Life Cas. Ins. Co., 79 Ga. App. 164 (6) ( 53 S.E.2d 235) and cases cited; Code § 20-704 (3), catchwords "Express contracts". The court did not err in sustaining the demurrer to the answer.
2. The contract sued on provides that in default of any payment due the vendor could declare all amounts due at its option and (1) retake possession of the trailer and sell it at any place in the vendor's discretion at public or private sale or (2) that the vendor could take possession of the trailer and credit the fair market value to the unpaid balance due on the contract. The defendant contends that the possession of the trailer was obtained by the vendor for the purpose of making repairs thereto and that, since possession was not restored to the vendee, the sale of the trailer, purportedly made under the provisions of the contract, amounted to a rescission of the contract, and that the vendee did not acquiesce in the sale by not objecting to it after the vendor notified him that the trailer would be sold and the proceeds applied to the debt. In such circumstances it was the duty of the vendor to return the possession of the trailer to the vendee in completion of its contract of bailment before it could legally take possession from the vendee for the purpose of sale under the power contained in the sale contract. The failure to do so, and the subsequent sale to itself, was a conversion of the trailer by the vendor. It was not incumbent upon the vendee to protest the sale which the vendor notified him it would make. The letter notifying the vendee of the sale was not such a letter in the due course of business which required an answer from the vendee. To put such a duty of protest upon the vendee would be to alter the terms of the sale and bailment contracts. If there was a ruling in Southern Auto Finance Co. v. Chambers, 65 Ga. App. 259, 265 ( 15 S.E.2d 903) to the effect that a notice of sale after the obtaining of possession of property for a purpose other than sale under power in a contract would excuse the re-delivery of the property to the vendee, it was obiter dictum and will not be followed. There was no notice in that case, and a ruling on the consequences of a lack of notice required no ruling on a state of facts when there was a notice.
The court did not err in sustaining the demurrer to the defendant's answer setting up the custom but did err in denying the motion for a new trial complaining of the direction of a verdict for the plaintiff.
Judgment reversed in part and affirmed in part. Quillian and Nichols, JJ., concur.