Commercial Publishing Co. v. Campbell Printing-Press & Manufacturing Co. , 111 Ga. 388 ( 1900 )

Lumpkin, P. J.

The Campbell Printing-Press & Manufacturing Company brought against the Commercial Publishing Company, and R. B. Blackburn as receiver for its assets, an action of bail-trover for the recovery of a printing-press and outfit. In its petition the plaintiff alleged that it had entered into a. written contract with the Publishing Company under the terms-of which it agreed to purchase the property in question, paying therefor by instalments, but that, after paying a portion of the purchase-money, it had refused to comply further with its obligations; that the property was sold with reservation of title, and it was expressly stipulated in the contract that, should such default be made, the plaintiff should have the right to-immediately retake possession; but that, notwithstanding this stipulation and -the fact that the Publishing Company was in default, it had, on proper demand, refused to yield possession of the property, which conduct on its part amounted to a conversion of the same. On the trial the plaintiff elected to take a verdict for the property itself. The defense interposed was, that the contract between the parties was one of conditional sale, and the plaintiff was in equity liable to account for so much of the purchase-money as had been paid to it, etc., etc., to the end that the rights of the defendants in the premises might be protected, and an equitable rescission of the contract ■effected. The jury returned a verdict in favor of the plaintiff, which embraced a finding that the payments made upon thp purchase-price of the property did not exceed its fair rental value while in the possession of the Publishing Company. The ■defendants thereupon filed a motion for a new trial, which was ■overruled, and they excepted.

1. One ground of the motion alleges error in admitting oral evidence with reference to a certain matter, but fails to state what the evidence was. In several grounds complaint is made of the admission in evidence of certain documents, without setting the same forth either literally or in substance. In two of the grounds it is alleged that the court erred in refusing to permit certain questions to be answered, but the motion does not state what evidence the movant expected to elicit thereby. It is obvious, in view of the repeated rulings of this court, that none of these grounds of the motion present any question upon which we can undertake to pass.

2. The only question of law properly made is'presented in certain grounds of the motion assigning error upon the admission of evidence as to the value of the property for hire, and complaining of instructions given to the jury with reference to this matter. These instructions were to the effect that while it was incumbent upon the plaintiff to account for and return the purchase-money it had received, it was not bound to do so if the value of the property for hire, while in the possession of the defendants, was equal to or exceeded the amount of the payments made upon the purchase-price. It was insisted that the evidence admitted over objection was inadmissible, and the charges referred to were inappropriate, because the plaintiff had not in its petition prayed for the recovery of any sum as hire. We do not think the court erred either in admitting the evidence or in instructing the jury as indicated. It is evident that the court undertook to try the case in accord with the equitable rule, recognized in Hays v. Jordan, 85 Ga. 741, that where a seller of personalty, who has reserved the. title and has received partial payments of the purchase-money, brings an action to recover possession of the property, he is in equity and in good conscience liable to account for the money actually received, less the value of the property for hire. The answer of the defezidants, as we understand it, was intended to be framed in pursuance of this rule, though it lacked one essential element, viz., it did not allege a willingness to account for the hire or even in general terms assert a readiness on the part of the defendants to do equity. We do not think, therefore, that they can justly complain of the admission of evidence which would surely have been pertinent had their pleadings been complete. They were seeking an equitable rescission, and., in order to obtain equity, it was incumbent upon them to offer to do equity. It must not be overlooked that the plaintiff was standing squarely upon its legal right to recover possession of the property on the strength,of its title, which was undisputed, and which it had an undoubted right to assert because of the breach of a contract which expressly stipulated that.in case of default in paying any instalment of the purchase-money as it fell due, the plaintiff' should be entitled to retake the property. As the plaintiff was not seeking by its action to do more than this, and was not asserting any claim for hire, its right to recover was manifest, unless the defendants set up some reason, either legal or equitable, to the contrary. There was nothing from the plaintiff's standpoint, requiring it.to go into the equities between the parties; and as the defendants sought to do so, it was, to say the least, incumbent on them to set forth the equities pro and con and abide by the result. The evidence in question was, therefore, not inadmissible because the plaintiff was not suing for hire, but strictly pertinent to the issues which the answer sought ta raise, or at least ought to have raised in order to give the defendants a standing in court. The plaintiff was not seeking to prove the hire with a view to recovering the same, but its purpose was simply to defeat, by the introduction of competent evidence, the alleged right of the defendants to demand a return to them of the purchase-money which had been paid. This was perfectly legitimate; for, as above pointed out, the pleadings of the defendants, not those filed by the plaintiff, were incomplete and defective. As the evidence objected to was properly admitted, it follows, of course, that the instructions which the court gave in connection therewith were fully warranted, they being in substance correct.

3. The motion for a new trial also complains that the verdict was contrary to the evidence. In our opinion, there was ample evidence upon which to base the jury’s finding.

Judgment affirmed.

All the Justices concurring.