Chalker & Russell v. Savannah Motor Car Co. , 37 Ga. App. 532 ( 1927 )

Jenkins, R. J.

1. The remedy of a mechanic who has made repairs for a vendee upon machinery held by him under a title-retention contract is by paying the vendor the balance of the purchase-price of the property due by the vendee, and then subjecting the property to the mechanic’s lien for the labor and material furnished under his contract with the vendee. Baughman Automobile Co. v. Emanuel, 137 Ga. 354 (73 S. E. 511, 38 L. R. A. (N. S.) 97).

2. In a trover suit brought by the reservation-of-title owner against a mechanic in possession of the property, the court did not err in rejecting the proffered amendment to the plea of the defendant mechanic, which undertook to set up that the repairs were made by the defendant for the vendee of the automobile, and that the veiidee “was authorized by the said plaintiff [vendor] to have said car repaired,” since the effect of such a proposed amendment would go merely to indicate that the vendee was acting in the matter of having the car repaired with the approval of the vendor, and not that the vendor had obligated itself to be responsible for the cost thereof, the effect of the allegation set forth in the proposed amendment amounting to nothing more than the provision set forth in the contract of purchase and sale whereby the purchaser was authorized and obligated to keep the car in repair at her own expense.

3. “In actions for the recovery of personal property, if the defendant at the first term will tender the property to the plaintiff, together with reasonable hire for the same since the conversion, disclaiming all claim of title, the costs of the action shall be paid by the plaintiff, unless he can prove a previous demand of the defendant, and a refusal to deliver it up.” Civil Code (1910), § 4494. However, “a tender in trover must embrace all the property claimed by the plaintiff, and must be unconditional.” Georgia &c. Ry. Co. v. Blish Milling Co., 15 Ga. App. 142 (8) (82 S. E. 784). Accordingly, the requirements of the code-section quoted can not be taken as having been met when the alleged tender of the automobile consisted of an offer to return it stripped of various parts of the machinery with which it was equipped when received by the defendant, and likewise stripped of the various portions of the equipment which had been substituted for the original equipment by the defendant mechanic.

Decided December 15, 1927.

4. The court correctly charged the jury that the agreed contract price of the property as between the vendor and vendee was not to be taken as the measure of damages in a suit against one who was not a party to that contract. The court further correctly charged them that the measure of- damages was the highest proven value of the property between the date of the conversion and the time of the trial. There was proof for the plaintiff going to show that the market value of the property when taken over by the defendant for repairs was from $1,000 to $1,200, whereas the amount of the recovery was in the sum of $571.15. The jury were authorized to infer that the value of the automobile after it had been repaired by the defendant, at which time delivery to the plaintiff was refused, had not been diminished so as to reduce the value below the amount of the recovery, and the court did not err in allowing the plaintiff to prove its value at the time it was taken over by the defendant for repairs in order to establish its value at the time its surrender was refused after the repairs had been made.

5. The evidence demanding a verdict in favor of the plaintiff, and authorizing the verdict in the amount rendered, under the rules of law stated above, none of the exceptions taken would authorize the reviewing court to set aside the verdict and judgment. The judge of the superior court properly overruled the defendant’s certiorari.

Judgment affirmed.

Stephens and Bell, JJ., concur. Lewis A. Mills, Henry McAleer, for plaintiffs in error. I. G. Farthing, Joseph T. Hill, contra.