Opinion
38078.
DECIDED FEBRUARY 1, 1960.
Complaint. Fulton Civil Court. Before Judge Henson. October 1, 1959.
Bagwell Hames, James A. Bagwell, for plaintiff in error.
Heyman, Abram Young, Levy, Buffington Levy, M. Alvin Levy, contra.
1. "The seller of personalty who reserves the title, could, after obtaining a judgment against the buyer for the price and collecting a portion of the same, nevertheless, without cancelling the judgment or paying or tendering back what had been received, maintain against the buyer an action of bail trover for the purpose of collecting the balance of the purchase-money, with interest thereon." Jones v. Snider, 99 Ga. 276 ( 25 S.E. 668). Additional cases to the same effect are: Moon v. Wright, 12 Ga. App. 659 (2) ( 78 S.E. 141); Goldsmith-Leslie Co. v. Whitehead, 41 Ga. App. 287 (1) ( 152 S.E. 589); Holley v. Mutual Investment Corp., 91 Ga. App. 837 ( 87 S.E.2d 236).
2. The very essence of a retention-of-title agreement grows from the fact that the contract provides that title shall not pass to the buyer until the purchase price has been fully paid. The retained title constitutes security for the debt. There is nothing inconsistent in trying to collect the purchase price and at the same time retaining title as security for the unpaid balance of the price. An effort to collect payment does not constitute an abandonment of the security.
3. The case of Kennedy v. Manry, 6 Ga. App. 816 ( 66 S.E. 29) is that the foreclosure of a bill of sale as a mortgage, where the instrument contains both a retention-of-title clause and a mortgage on a particular chattel, debarred a subsequent trier action. The case was decided on the theory that the foreclosure of the mortgage admitted the title to the chattel to be in the defendant, and that where the title to personalty is admitted in the defendant a trover suit can not be maintained. The holding is not in conflict with the ruling of the case sub judice, for the reason that here the judgment pleaded as a bar to the present action in a previous case was obtained on a suit brought on the promise to pay contained in the conditional-sale contract, and obviously a suit on such promise, a promise to pay the purchase price of the chattel to which the contract retains title, does not admit the title to the same is in the maker of the instrument. The case of Kennedy v. Manry, supra, was decided prior to the act of 1921 (Ga. L. 1921, p. 114) embodied in Code § 67-1601, which permits a conditional-sale contract to be foreclosed as a mortgage. The case has also been overruled in so far as it conflicted with the holding of Goldsmith-Leslie Co. v. Whitehead, 41 Ga. App. 287, supra, and Hilliard v. General Motors Accept. Corp., 54 Ga. App. 105 (1) ( 187 S.E. 218), where it is said: "Where personalty is sold and title retained in the seller as security for the balance of the purchase-money, a suit by the seller to foreclose the contract as a mortgage, under the act of 1921 (Ga. L. 1921, p. 114; Code § 67-1601), does not have the effect of transferring the title into the buyer, and does not stop the seller from afterwards bringing an action of trover for the property." If more recent cases of this court predicated on Kennedy v. Manry, 6 Ga. App. 816, supra, do not conform in their holdings with Goldsmith-Leslie Co. v. Whitehead, and Hilliard v. General Motor Accept. Corp., supra, they must yield to the Goldsmith-Leslie case and the Hilliard case, and hence do not furnish precedent for a contrary view to that expressed in this opinion.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.