Opinion
35769.
DECIDED JULY 15, 1955. REHEARING DENIED JULY 27, 1955.
Trover. Before Judge Lowe. Fulton Civil Court. May 9, 1955.
Woodruff, Swift Stephens, for plaintiffs in error.
Powell, Goldstein, Frazer Murphy, Frank Love, Jr., contra.
There was evidence on which the jury could have found that the defendant was not a bona fide purchaser for value; therefore, the trial court erred in directing a verdict for the defendant.
DECIDED JULY 15, 1955 — REHEARING DENIED JULY 27, 1955.
W. A. Nimmons and Odell Nimish doing business as W. A. Nimmons Used Cars brought an action in trover against Ballentine Motors of Georgia, Inc., to recover a described 1949 Ford automobile. On the trial of the case the following evidence was presented: The plaintiff had purchased the automobile in Chicago, Illinois, and brought it to Georgia for the purpose of resale. The automobile was offered for sale at an auction but did not bring the price that the plaintiffs desired and was not sold. Later, while the automobile was still on the grounds of the auction lot, it was sold to J. B. Archibald who gave the plaintiffs a check for $600 for the automobile. Title was not to pass until the check cleared. The check did not clear. Archibald had given the defendant corporation several bad checks and while some of these bad checks were outstanding he gave the defendant a bill of sale on the Ford automobile which is the subject of the present action, along with bills of sale on several other automobiles to "take up" a part of the outstanding bad checks. After the bills of sale were given to the defendant, but before the automobiles were to be delivered on the next day or the following morning, Archibald "skipped out" from his place of business with all the automobiles covered by the bills of sale, other than the one in question. The defendant then took possession of the automobile in question through a bail-trover action. It was admitted that the plaintiffs had made a demand on the defendant for the automobile in question and that the defendant had refused to surrender possession of the automobile. At the close of the evidence the judge, on motion of the defendant, directed a verdict for the defendant. The plaintiffs by a direct bill of exceptions assign error on the direction of the verdict on the grounds that the verdict directed was not as a matter of law demanded by the evidence, that there was evidence adduced which would have authorized the jury to find in favor of the plaintiffs, and that there were issues of fact which should have been presented to the jury for consideration.
Where a seller gives to a purchaser unqualified delivery of personal property, taking for payment a check that is worthless, no title passes as between the seller and the purchaser. However, where the purchaser sells the personal property to a third party who is a bona fide purchaser for value, the original seller is estopped from asserting his title as against the bona fide purchaser. Blount v. Bainbridge, 79 Ga. App. 99 ( 53 S.E.2d 122). Therefore, here the only question is, was there any evidence on which the jury could have found that the defendant was not a bona fide purchaser for value? It is undisputed that both the plaintiffs and the defendant were holding bad checks given them by Archibald. The defendant contacted Archibald in Columbus, Georgia, where it took a bill of sale from Archibald covering the automobile in question to protect itself to the extent of the value of the automobile as against the bad checks it held from Archibald, and then left the automobile in the possession of Archibald until the next day or the following morning in the hope that Archibald could raise the money to redeem all of his bad checks being held by the defendant. The defendant contends that, since the plaintiffs did not sell the automobile in question under a title-retention contract or a conditional-sale contract, the plaintiffs were estopped from claiming the automobile from the defendant. It is apparent that the defendant knew that Archibald had been issuing bad checks when purchasing automobiles, since it was the holder of over $16,000 worth within the month preceding the present transaction, and in addition thereto the bill of sale obtained by the defendant from Archibald had written thereon, " . . . [?] title good on outstanding checks." The plaintiffs and the defendant differ as to whether the first word in the above quotation from the bill of sale was "Car" or "Our", but, regardless of which it was, or if it was some other word, in view of all the evidence adduced, it presented a question for the jury as to whether the defendant had sufficient notice to the extent provided by Code § 37-116, for the notation on the bill of sale stated in effect that there was a check or checks outstanding for the purchase price of the automobile. Accordingly, the trial court erred in directing a verdict for the defendant.
Judgment reversed. Felton, C. J., and Quillian, J., concur.