Fulghum & Lewis v. General Motors Acceptance Corp. , 30 Ga. App. 609 ( 1923 )

Broyles, C. J.

1. “ The rule that the bringing of a suit in trover by a venuor of property wno has reserved title thereto in himself until payment of the purchase-price, and his election to tahe the property itseij, and his recovery of it, amount to a rescission of the contract of purchase, and that there can be no subsequent action for any further recovery, is not applicable to a case where the contract of sale contains a provision that if the note given for the purchase-price of the property is not paid at maturity, the vendor is authorized to repossess himself of the property, to sell it for cash at public outcry, and to credit the proceeds from the sale on the note; and where the vendor, upon the failure of the vendee to pay the note at maturity, and upon the refusal of the vendee to give up the property, brings a suit in trover for the sole purpose of obtaining possession of the property, in order that he may sell it and credit the proceeds of the sale on the note, and where, prior to the hearing of the trover suit, the vendee returns the property to the vendor, and the vendor sells it at public outcry and credits the proceeds of the sale on the purchase-money note.” Pannell v. McGarity, 27 Ga. App. 71 (107 S. E. 352).

Decided July 10, 1923. Rehearing denied July 27, 1923.

(a) The request of counsel for the plaintiff in error, that the decision in the Pannell case, supra, be reviewed and overruled, is denied.

2.- Under ■ rhe principle of law laid down in the Pannell case, supra, and the particular facts of the instant case (which distinguish it from the various cases cited and relied upon by counsel for the plaintiff in error), the trial court did not err in directing a verdict in favor of the plaintiff, or thereafter in overruling the motion for a new trial.

Judgment affirmed..

Luloe and Bloodworth, JJ., concur. Robinson & Ford, for plaintiffs in error, Benjamin F. Neal, contra,