Farkas v. Williams , 22 Ga. App. 686 ( 1918 )

Wade,'C. J.

This is a trover action.instituted by Sigo Farkas to recover one Ford automobile. The case was submitted to a jury, and a verdict was returned in favor of the defendant. The plaintiff’s motion for a new trial was overruled, and he excepted. The case made out by the evidence is substantially as follows: Farkas loaned a certain Ford automobile to MeEachern to make a trip to Camilla, Ga. MeEachern drove the car to Camilla, and later to Thomasville, where he entered into a poker game with C. T. Williams, the defendant, and during the game, and after imbibing too freely of liquor, he sold the car as his own property to Williams for poker-chips aild cash. . After the game MeEachern told Williams that the car did not belong to him but was the property of the plaintiff Farkas, and proposed to rescind the trade, offering Williams, for that purpose, $10 more than had been advanced to'him on the ear. The offer was refused and Williams retained possession of the car. MeEachern then went to Albany, where the plaintiff resided, and told him of the circumstances stated above, whereupon they both boarded the train for Thomasville and demanded the car from Williams, whose refusal to comply with the demand resulted in the bringing of this suit to recover'the car.

The evidence shows clearly that the car sued for was the property of the plaintiff Farkas, and not that of' MeEachern, who sold it to the defendant without the consent or knowledge of the true owner. The plaintiff testified: “I am the owner of the Ford automobile described in the petition, and it is number 1401348. It1 is my property and belongs to me, and I claim title to the same. . , . I never authorized Mr. MeEachern to sell or dispose of my Ford car, now sued for, in any manner or way and have not ratified any of his acts.” MeEachern testified: “The car was not mine, but belonged to Mr. Farkas,” and “Mr. Farkas, the plaintiff in this case, never authorized me at any time to sell the same, or put it up in a poker game. It was his property and I had no right to use it in the manner I did.” The defendant Williams testified: “I cannot swear that this ear did not belong to Mr. Sigo Farkas, but I bought it from Mr. MeEachern, as I thought it was his.” Apparently, and as contended by the defendant, the jury based its verdict on the idea that the evidence as a whole showed that MeEachern was the duly authorized agent of Farkas to sell or trade the car sued for. However, the undisputed testimony of both Farkas and MeEachern, quoted above, absolutely disproves that any such special agency existed, or ‘that the latter was the general agent of the former. The mere fact that there was some evidence to the -effect that McEachern had been on previous occasions- the plaintiff’s agent for a similar purpose was wholly insufficient to support a conclusion that he disposed of the car as the agent of the plaintiff on this particular 'occasion. Especially is this true in view of the direct, ¡Dositive testimony that the car was disposed of without the authority, knowledge, or consent of the owner, and in the absence of any testimony disclosing knowledge on the part of the buyer that McEachern had ever previously acted as agent for the plaintiff in similar transactions. To the contrary, Williams (the buyer) testified that he thought at the time he purchased the car that it belonged to McEachern. Neither was there any evidence whatever tending to prove that the plaintiff ever ratified the unlawful and unauthorized sale of his car in any way. To the contrary, his testimony, as well as that of McEachern, shows conclusively that immediately upon learning of the disposal of the car he took a train for Thomasville and made demand of the defendant-to return the machine.

As we view the evidence, the verdict returned is unsupported by any testimony whatever, and the judgment overruling the motion for a new trial must be

Reversed.

Jenkins and Luke, JJ., concur. .