Opinion
34209.
DECIDED OCTOBER 17, 1952. REHEARING DENIED NOVEMBER 21, 1952.
Complaint; from Bibb Superior Court — Judge Atkinson. June 12, 1952.
Frank G. Wilson, for plaintiff in error.
Robert v. Jones Jr., Johnson Jones, contra.
The court did not err in overruling the motion for a new trial, based on the general grounds.
DECIDED OCTOBER 17, 1952 — REHEARING DENIED NOVEMBER 21, 1952.
Richard G. Howard sued L. E. Epps, trading as Epps Motor Company, for $700 in Bibb Superior Court. The petition alleged substantially: that on May 13, 1950, the plaintiff purchased an automobile from the defendant; that the plaintiff executed a conditional-sales contract securing the balance of the purchase price due on the automobile; that the contract and a note for the balance were transferred with recourse by the defendant to Employees Loan Thrift Corporation, a financing agency; that in addition to the $400 down payment the plaintiff paid to Employees Loan Thrift Corporation, $322.28 from June 15 to October 4, 1950, making the total paid by the plaintiff $722.28; that the plaintiff was late in making the October payment, and Employees Loan Thrift Corporation, under the provisions of the conditional-sales contract, declared the balance of the purchase price due and took possession of the car; that, instead of selling the automobile, Employees Loan Thrift Corporation complied with an oral agreement it had with the defendant and returned the automobile to the defendant after the defendant had paid the balance due Employees Loan; that the note and contract was then retransferred to the defendant; that the defendant then sold the automobile, making a profit thereon of $700, no part of which has been delivered to the plaintiff; that the defendant is holding the $700 in trust for the plaintiff's use.
The conditional-sales contract provided that in case of default by the buyer, the seller or its assigns could declare the balance of the purchase price due and repossess the automobile without demand and sell it at public or private sale. The contract also provided that, in the event of repossession and resale by the seller or assigns, from the proceeds of such sale the seller should deduct all expenses for retaking, repairing and reselling the automobile, the balance thereof being applied to the indebtedness due and that any surplus should be paid over to the purchaser.
The defendant answered, denying the indebtedness but admitting the execution of the contract, the transfer of the contract to Employees Loan Thrift Corporation, the reassignment of the contract to the defendant, and the resale of the automobile. The case came up on appeal with the following agreed statement of facts: On June 6, 1951, the case was tried on the issues raised by the petition and answer. The evidence disclosed that the contract price was payable $400 down and $1450.26 in 18 monthly installments of $80.57 each, and that $322.28 had been paid at the time the contract was reassigned to the defendant. The evidence further showed that the cost of retaking, repairing, and reselling the automobile was $145.08, and that the automobile brought $1295 on resale. It was admitted that the defendant paid $914.35 for the contract at the time it was reassigned to him, and the court added $145.08 to this amount representing the cost of retaking, repairing, and reselling the automobile, and directed a verdict for the plaintiff for the difference between the amount paid for the contract and the cost of retaking, repairing, and reselling, and the amount realized at the sale. This difference was $235.57. The defendant showed that the unpaid balance on the contract amounted to $1127.72 and that the cost of retaking, repairing, and reselling was $145.08, leaving a difference due the plaintiff of $22.20. The defendant contended that the verdict should have been directed for $22.20, and not for $235.57 as was ordered by the court. The defendant's motion for a new trial on the general grounds was overruled and he excepts.
This case is controlled by the ruling in Lyle v. Mandeville Mills, 68 Ga. App. 88 ( 22 S.E.2d 186). The contract in this case was endorsed with recourse by Epps. The procedure by which the finance company took possession of the automobile and then delivered it to Epps together with a retransfer of the contract was very unusual, but under the facts the case will be treated as if Epps repossessed the automobile after he received the contract by retransfer; and since the plaintiff sought recovery under the theory of a legal repossession and sale under power, he cannot and does not complain of the manner in which the vehicle was repossessed and resold. The plaintiff in error urges two very strong arguments against the lower court's judgment. One is that there was no evidence of the amount due on the contract at the time of the retransfer, and that it might have been resold to Epps at a discount. Under certain circumstances this argument might be plausible, but we do not think that it is sound under the facts of this case. The automobile at the time of repossession was worth more than the actual balance due on the contract and the retransfer was executed under the provision of the original contract of transfer with recourse. Under such circumstances, in the absence of any evidence showing otherwise, there was a permissible inference, if not a presumption, that the consideration for the transfer was the actual amount due on the contract at the time, and that the unearned interest and insurance premium, or whatever refund there was on the latter, were applied as credits on the contract. It would be most irrational to assume or suspect that the finance company would suffer a loss on a retransfer to one whose obligation it was to guarantee the full payment of the contract, especially when there is no intimation of the insolvency of Epps or danger of loss because of the lesser value of the automobile. The other very plausible argument is that, where interest is included in the installments, as here, and there is no provision for prepayment privileges, the debtor could default in bad faith, have the whole sum declared due, and thereby obtain advantage of the prepayment privilege and save unearned interest and insurance premium. It is true that such a plan might be successfully used, and would be improper if done for an improper purpose, if, as a practical matter, a person could realize such an advantage when the cost of retaking, repairing, and reselling are taken into consideration. But it is hard to write a law that will fit any situation that might arise. Public policy many times compels the declaration of rules which work hardship in individual instances, but which are salutary, promote square dealing, and prevent frauds in the general run of affairs. The parol-evidence rule is a shining example. The good done by the rule providing against unjust enrichment in cases of unfortunate debtors to protect them against the payment of unearned interest, premiums, etc., so far outweighs the injustices which can be done by reason of the rule that it would not accord with common sense or good judgment to destroy the law because forsooth it might be used for improper motives. Besides, the harm done by improperly accelerating the maturity of a contract to save unearned interest is so slight as to be negligible. And, too, there is no law or rule which requires that a contract provide for the acceleration of maturity. Businessmen can know the law and provide against the improper use of what seems to us to be a wise rule.
It is contended that the court erred in not submitting the issues to a jury. The motion for a new trial was based only on the general grounds, and since there is no exception to the direction of the verdict, this court cannot consider that question. Head v. Towaliga Falls Power Co., 27 Ga. App. 142, 143 ( 107 S.E. 558); Kelly v. Cartledge, 151 Ga. 179 ( 106 S.E. 93).
The court did not err in overruling the motion for a new trial.
Judgment affirmed. Sutton, C.J., and Worrill, J., concur.