Carter v. American Slicing Machine Co. , 23 Ga. App. 422 ( 1919 )

Bloodworth, J.

The American Slicing Machine Company sold to Y. L. Carter a slicing machine and retained title thereto. The terms of the sale were $10 cash, 12 monthly payments of $10 each, and a final payment of .$5 within 13 months. After making three payments of $10 each Carter refused to pay more, claiming that the machine was “not any good to me at all.” The vendor brought an action of bail-trover. Carter filed pleas, and, among other things, alleged failure of consideration. On the trial, after all the evidence, including the contract, was in, the trial judge directed a verdict for $105, being the amount of the purchase-price, less the payments of $30. The defendant excepted.

1. “In an action of trover by a vendor against a vendee, in which the former claims title based upon a note reserving to himself title to the property sold until the purchase-money is paid, no demand is necessary where it appears that the defendant was "in possession of the property, claiming title thereto, at the time of the action, his defense being that, owing to a partial failure of consideration, he was not due the balance of the purchase-money to the plaintiff.” Muse v. Wright, 103 Ga. 783 (30 S. E. 662). While the facts in the case under consideration differ somewhat from those in the case of Muse v. Wright, supra, the principle involved is the same in both cases. See Civil Code (1910), § 4483; Grant v. Miller, 107 Ga. 804 (2) (33 S. E. 671); Scarboro v. Goethe, 118 Ga. 543 (45 S. E. 413); Moore v. Ramsey, 144 Ga. 118 (86 S. E. 219); Young v. Durham, 15 Ga. App. 679 (5) (84 S. E. 165); Pearson v. Jones, 18 Ga. App. 448 (4a) (89 S. E. 536).

2. “It has been held a number of times by this court, that, as between the original seller and the original purchaser, the agreed price as stated in the contract of sale is prima facie but not conclusive evidence of the actual value of the property, and that upon proof.of the contract, in the absence of rebutting testimony as.to value, the plaintiff was entitled to recover the balance due thereon.” Lott v. Banks, 21 Ga. App. 249 (94 S. E. 324). See also Elder v. Woodruff Hardware Co., 9 Ga. App. 484 (71 S. E. 806); s. c., 16 Ga. App. 255 (82 S. E. 268); Jordan v. Jenkins, 17 Ga. App. 58 (86 S. E. 278); Moore v. Furstenwerth-Uhl Jewelry Co., 17 Ga., App. 669 (87 S. E. 1097); Young v. Durham, supra. The written contract of sale showed an agreed purchase-price of $135 for the machine. There was no other testimony as to value. It was admitted that $30 of the purchase-price had been paid. Under the pleadings and the evidence, the court properly directed a verdict for $105, the amount of the purchase-price, less the admitted payments.

Judgment affirmed.

Broyles, P. J., concurs. Stephens, J., concurs dubitante.