Herrington v. Sears, Roebuck & Co. , 37 Ga. App. 795 ( 1928 )

Stephens, J.

1. In a suit in trover to recover personal property where the plaintiff relies for the establishment of title upon a written contract with the defendant, whereby the defendant agrees to make certain monthly payments to the plaintiff until the property is paid for, and providing that when the property is paid for it will become the property of the defendant, and where the contract does not indicate the price to be paid for the property, the plaintiff, carrying the burden of proof, can not establish title to the property without proof that the entire purchase-price therefor has not been paid, and this fact can not be established without proof of some contractual obligation on the part of the defendant to pay a certain definite and fixed price for the- property. A mere charge on the books of the plaintiff, showing a balance due by the defendant upon the property sold, even if it could be considered as relevant evidence to supply the omission of the amount of purchase-price from the written contract, is not, in the absence of other proof, sufficient to authorize an inference that the defendant contracted to pay any fixed sum for the property. See, in this connection, Shields v. Carter, 22 Ga. App. 507 (96 S. E. 330); Millsaps v. Strange, 37 Ga. App. 716.

Decided March 3, 1928. F. A. Cantrell, J. M. Lang, for plaintiff in error. Henson & Barnett, contra.

2. Since the evidence failed to authorize the verdict found for the plaintiff, the court erred in overruling the defendant’s motion for a new trial. Judgment reversed.

Jenloms, P. J., and Bell, J., concur.