Colonial Credit Company v. Williams , 95 Ga. App. 76 ( 1957 )

Carlisle, J.

1. Where, upon the trial of an action of bail trover, brought by the holder of a title-retention contract, covering a described automobile, against the purchaser of the automobile, after the defendant had defaulted in some of his monthly instalment payments, it appears from the evidence without dispute that the plaintiff had made no demand for the automobile nor had there been a refusal by the defendant to return the automobile, and a conversion of the automobile by the defendant was not otherwise shown, a verdict in favor of the defendant is demanded. A purchaser’s default in the payment of the purchase money alone will not constitute a conversion of the property (Carter v. Spiegel, May Stern Co., 45 Ga. App. 754 (5), 166 S. E. 34, and citations); and, while Code § 107-101 provides that it shall not be necessary to prove a conversion of the property in an action of trover where the defendant is in possession, this rule does not apply where the property has been lawfully acquired by the defendant. Wood v. Sanders, 87 Ga. App. 84, 86 (73 S. E. 2d 55), and citations.

2. As the verdict for the defendant was demanded for the reasons indicated in the foregoing division of this opinion, the remaining assignments of error contained in the motion for a new trial need not be considered, and the trial court did not err in denying the motion for new trial.

Judgment affirmed.

Gardner, P. J., concurs. Townsend, J., concurs specially.