Pritchard v. Ballard ( 1934 )

Stephens, J.

1. Where personal property was sold, under a retention-of-title contract, at a stipulated price, and another article of personal property was accepted from the purchaser as a cash payment on the purchase-price of the property sold, but was left in his possession, although title thereto passed into the seller, the agreed valuation of the property accepted as the cash payment was, on the trial of a suit against the purchaser for a conversion of the latter property, relevant as an admission by him as to the value of the property at the time the agreement was made, but is not conclusive of its value at the time of the conversion, which was eighteen months later. Odum v. Cotton States Fertilizer Co., 38 Ga. App. 46 (3) (142 S. E. 470).

2. Upon the trial of a suit in trover against the purchaser to recover the value of the property, where the jury afterwards found for the plaintiff in a value equal to the agreed valuation, it was error to exclude evidence offered by the defendant that at the time of the alleged conversion and afterwards the property, which was a refrigerator, was “old, rotten and practically rusted out and useless for the purpose intended,” and was of a value much less than the agreed valuation which had originally been placed upon it. The exclusion of this evidence, which was from the testimony of witnesses who were apparently disinterested, was error notwithstanding the defendant himself had given testimony to the same effect. Had the excluded testimony been before the jury, they might have given to it, as the testimony of disinterested witnesses, a probative value which they did not give to the testimony of the defendant, who was not disinterested in the outcome of the case.

3. The court erred in not granting the defendant a new trial.

Judgment reversed.

Jenkins, P. J., and Sutton, J., concur.