Opinion
34566.
DECIDED JUNE 10, 1953. REHEARING DENIED JULY 7, 1953.
Trover. Before Judge Vaughn. DeKalb Superior Court. February 6, 1953.
Phillips, Johnson Williams, for plaintiff in error.
Gaines DeGive, contra.
The court did not err in any respect regarding the exceptions pendente lite, the admission of evidence, not in overruling the motion for a new trial.
DECIDED JUNE 10, 1953 — REHEARING DENIED JULY 7, 1953.
J. T. Henry (plaintiff in the court below and plaintiff in error here), whom we shall refer to as the plaintiff, on June 27, 1951, filed suit in the Superior Court of DeKalb County against J. E. Cowan and A. E. Foster, doing business as the Chevrolet Machinery Company, hereinafter called the defendants. The petition, a trover proceeding, was in three counts, referring to different personal property in each count. The first count substantially alleged that, on April 6, 1949, the Deputy Sheriff of DeKalb County took possession of certain property of the plaintiff by virtue of a fi. fa. issued from the superior court of that county in favor of E. M. Vinson for the use of the officers of said court and against Henry Hutchinson, Inc., and Joel T. Henry (plaintiff) and A. B. Harris, stockholder in Henry Hutchinson, Inc. but not a party here. The fi. fa. was for the principal sum of $639.99 and $1.60 costs. A copy of the fi. fa., together with the entry of the levy thereon, was attached as an exhibit. This fi. fa. was levied on one 25" B. G. Smith Mill shaper, with vice, known as tool T. E.-3. The property levied on was duly advertised and was sold by the sheriff to satisfy an execution for costs of a receivership proceeding instituted by the stockholders of Henry Hutchinson, Inc. At the time the levy was made, the plaintiff was president of the corporation of Henry Hutchinson, Inc. The defendants bid in for $800 the property levied upon. Before the levy was made the receivership was dismissed by an agreement between the stockholders, including the plaintiff, on the condition that the costs for which the execution mentioned in this court was issued, should be paid. Under the settlement of the plaintiff became the sole owner of the stock of the corporation, paying approximately 10¢ on the dollar for it. Thereafter, the plaintiff as president transferred the property sold under the fi. fa. to the plaintiff individually. About two years after the sale the plaintiff made demands upon the defendants for the property, claiming that the title never vested in the defendants because the levy was excessive, in that the property levied upon in this count and sold to the defendants was worth $5,000, the judgment was for only $639.99, plus $1.60 costs, and the property was purchased by the said defendants at said sale for $800. It is further alleged in the petition that there was $80,000 worth of property on the said premises of the corporation, consisting of various articles of merchandise of various values. This was the only attack upon the sale, i. e., that it was excessive.
Count 2 alleges a sale of certain of the personal property of the corporation in favor of a fi. fa. for $13,606.26, besides costs, which latter fi. fa. was issued under and by virtue of a State of Georgia Unemployment Contribution fi. fa. We will not concern ourselves further with the trover proceedings relative to this fi. fa. in count 2 of the petition, since under the evidence it was shown that the property sold thereunder did not bring the amount of the fi. fa. The plaintiff concedes that under this situation he cannot maintain a trover action as for an excessive levy. The plaintiff, therefore, abandoned the contest as to the excessiveness of this levy.
As to count 3, the plaintiff alleged that he had made demands of the defendants for the following property to wit:
One paper attachment __________________________________$ 390.00 One collet chuck ______________________________________ 180.80 One set chuck collets _________________________________ 96.80 One 12" 4 jaw universal chuck _________________________ 215.42 One set lathe dogs 1/2" to 1 1/2" _____________________ 6.48 One face plate ________________________________________ 61.40 One set turning tool holders and bit __________________ 16.92 One #3 bar boring set _________________________________ 29.16 One electric ball bearing motor with reversing type magnetic starter and push button ____________________ 254.40 _________ Total ____________________________________$1,251.78 It is alleged in this count of the trover proceeding that the sheriff did not levy on these items, and that at the same time the defendants took possession of the shaper and vice described in count one of the petition, and it is alleged that the defendants also took charge, without authority, of the items above set forth in count 3.The defendants answered the petition, and to count one alleged that the plaintiff at the time of the levy in 1949 was president of the corporation, Henry Hutchinson, Inc.; that he did not point out any other property which the officer was directed to levy upon to satisfy the admittedly valid judgment for costs of court in the receivership proceeding; and that the items set forth in count three of the petition were attached to, under, and around the lathe mentioned in count two, and were attachments and accessories which went with and belonged to the said lathe. The sheriff's levy mentions the LeBlond Lathe and all accessories. It was further alleged in the defensive answers to counts one and three that there were a number of bidders at the sale; and alleged further that the property sold under the execution described in counts one and three was never carried to the courthouse, but that the prospective bidders inspected the shaper described in count one and the accessories and attachments described in count three in the corporation's place of business. With further reference to the shaper, as well as articles concerned in count three, the defendants alleged that soon after the sale the plaintiff, while president of the corporation, and before he had purchased the entire stock, went to the defendants and offered them $800 for the articles which they had purchased. The defendants stated to the plaintiff that they had gone to some expense in inspecting the property before the sale and otherwise in connection therewith, in moving the property purchased to the plaintiff's place of business, and had incurred an expense of at least $100, and while they could not sell the property to the plaintiff for $800, the purchase price which they paid the sheriff, they would sell it to the plaintiff for $900; that the plaintiff went away; that, after waiting for several months for the plaintiff to complete the sale with the defendants, the defendants reconditioned the machinery and sold it to someone else.
The plaintiff demurred specially to the answer of the defendants on the ground that the allegations with reference to the agreement of sale by the defendants to the plaintiff for $900 set up no defense to the plaintiff's trover action. It was urged in the demurrer of the plaintiff to the answer that the only issue was title or no title, and that the amendment with reference to the offer to sell sought to set up a defense ex contractu against a tort action. The court overruled the special demurrer, and the plaintiff filed exceptions pendente lite. The case proceeded to trial. A jury found for the defendants under count one. The court directed a verdict for the defendants under count two. The jury found a verdict for the defendants under count three. The plaintiff filed a motion for new trial, assigning error on exceptions pendente lite and on his amended motion for new trial as to all three counts.
Counsel for the plaintiff in his argument expressly abandons the general grounds of his motion for new trial insofar as count one is concerned. As stated above, counsel concedes the correctness of the directed verdict as to count two. As to count three of the petition, the plaintiff contends that the evidence is insufficient to support the verdict returned by the jury under that count.
1. We will deal first with exceptions pendente lite and with the evidence which was admitted, over objections, with reference to the allegations of the answer regarding the question of an agreement to sell the property to the corporation through its president, the plaintiff. It is conceded by counsel for the plaintiff that the exceptions pendente lite, based on the special demurrer of the plaintiff to the allegations with reference to the proposed sale by the defendants to the plaintiff, and the evidence which the court admitted, over objections, concerning the same subject matter, should be treated together. Counsel for the plaintiff do so in the brief, and we will follow their suggestions here. It must be kept in mind as we go along that the only contention of the plaintiff is that the levy was excessive. If the levy was excessive, the sale conveyed no title. It occurs to us that, since counsel for the plaintiff have abandoned the general grounds as to count one, they have to all intentions and purposes, admitted that according to the evidence the levy was not excessive. If the levy was not excessive, then just how could the contentions in the exceptions pendente lite and the evidence admitted with reference to what took place between the plaintiff, as president of the corporation, and the defendants shortly after the sale and after the property purchased had been moved from the corporation's place of business to that of the defendants, work harm to the plaintiff? Since the main issue, as contended by the plaintiff, and contested by the defendants, was on the sole point of excessiveness of the levy, the allegations of the answer that the plaintiff desired to purchase the property back for $800, and that the defendants in that same connection offered to sell it to the plaintiff for $900, would be relevant to establish the value of the property at the time of the levy, the conversion taking place so soon thereafter. The excessiveness of a levy is determined by the value of the property at the time of the levy. This is true notwithstanding that a plaintiff in a proper trover action may recover the highest proven value of the property from the date of the conversion to the date of the trial. The plaintiff argues that he was not estopped from asserting title as alleged in his petition. We do not understand that any such contention was advanced by the defendants in the pleadings or in the evidence to this effect. Neither the allegations of the answer nor the evidence sought to inject a defense ex contractu against the trover action, sounding in tort. We find no reversible error for any reason assigned as to count one of the petition.
2. We come next to consider whether the evidence in the record is sufficient to sustain the verdict in favor of the defendants on count three. The plaintiff contends that in this count the items set forth hereinbefore were never levied upon by the sheriff nor sold by him. It was set up in the answer that all of such items except "One set of chuck collects [value] $96.80; One set of lathe dogs 1/2 to 1 1/2" [value] 6.48; One set of turning tool holders and bits [value] 16.92," were attachments and accessories of the LeBlond lathe machine. All of the items mentioned in the petition were shown by evidence of the defendants to be either attachments or accessories to the LeBlond lathe machine, including the last three items mentioned. It was also set up in the answer that they were attached to the lathe machine or in a box underneath it, and that all of them were attachments and accessories to the lathe machine. There was no objection to the introduction of evidence with reference to these three items not mentioned in the defendant's pleadings. The sheriff's levy showed that the lathe machine and all accessories thereto were levied upon by him. When we take the whole record into consideration, it is our opinion that there was sufficient evidence to sustain the verdict in favor of the defendants. We are not unmindful of the fact and the law that property not levied upon under a fi. fa. cannot be sold. Counsel for the plaintiff cite many decisions to this effect. This was a sharp issue before the jury, that is, whether the items set out in count three were levied upon by the sheriff and sold as attachments and accessories to the LeBlond lathe machine.
There is no assignment of error on the charge of the court (and the charge is not a part of the record). While this is true, it is presumed that the trial court charged the jury fully upon the law applicable to the evidence on an essential defense. Counsel for the defendants sets forth in his brief his contentions as to the law on this issue, and counsel for the plaintiff do not deny the correctness of the charge on this point as a correct principle of law. We have read the contentions of the defendants as to this principle, and we find it is a correct one under the allegations in count three and the evidence introduced in support thereof.
In view of the whole record pertaining to count three of the petition, the contention of the plaintiff that the verdict is without evidence to support it is not meritorious. The court did not err in any respect regarding the exceptions pendente lite, the admission of the evidence, nor in denying the motion for new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.