Martin v. Turner , 70 Ga. App. 735 ( 1944 )

The direction of the verdict for the plaintiff was not error.

DECIDED MARCH 4, 1944. J. R. Turner, doing business as Turner Motor Company, sued A. A. Martin and J. A. Martin on a promissory note given for the balance of the purchase-price of an automobile truck, which was alleged to be past-due and unpaid. Attached to the petition was the conditional contract of sale between the parties. The contract provided that the price of the truck was $1200, that the down-payment was $400, and that a note, payable in twelve equal monthly installments of $78 each, was executed by the buyer; that title to the truck should remain in the seller until the note was paid; that the seller could assign the note or contract to another without passing title of the truck to the purchaser; that if the purchaser should fail to pay the note, or any installment thereof when due, the full amount of the purchase-price then unpaid would become immediately due and payable at the seller's option, and he could take possession of the truck, and sell it at either private or public sale, with or without notice to the purchaser, and the proceeds of the sale, after deducting expenses, liens, storage, and a reasonable attorney's fee paid or incurred by the seller, would be applied to the amount due on the note, and the balance, if any, would be paid to the buyer; and that in case of a deficiency, the buyer "covenants to pay forthwith that amount to the holder of said note." Also attached to the petition was a paper in which the plaintiff assigned "with recourse," to Commercial Credit Corporation, his title to the above stated contract and to the truck therein referred to.

J. A. Martin pleaded that he was in the armed services of the United States, whereupon the plaintiff elected to proceed against A. A. Martin alone. A. A. Martin admitted a prima facie case in the plaintiff. After the introduction of evidence, the court directed a verdict for the plaintiff, and the defendant excepted by direct bill of exceptions. Error was also assigned on the disallowance of an amendment to the answer, but that assignment is expressly abandoned in the brief of counsel for the plaintiff in error. The undisputed evidence supported the allegations of the petition and demanded the verdict directed. The defendant's main contention is that there was a conflict between the testimony of the plaintiff and that the Jesse Aycock, which raised an issue of fact that should have been submitted to the jury.

The undisputed evidence disclosed that the truck, while in the defendant's possession, was wrecked and badly damaged; that the due, to the commercial Credit Corporation; that the corporation called upon the plaintiff to pay the notes, and he paid them; and that the corporation also instructed the plaintiff to repossess the truck, and he did so, and sold the truck at a private sale for a sum which left a deficiency in the amount due him. Aycock testified that before and after the repossession of the truck, and before it was sold, he and the plaintiff entered into an oral contract for Aycock's purchase of the truck for a sum that would have left no deficiency. The plaintiff denied making such a contract. However, we do not think that conflict in the evidence raised an issue for the determination of the jury. Assuming that Aycock's testimony was true, the contract was a more verbal one, and since it involved an amount of more than fifty dollars, was no enforceable. Code, § 20-401. par 7. The other contentions of the defendants are without merit.

Judgment affirmed. MacIntyre and Gardner., JJ. concur.