Baldwin v. Boaz

Jenkins, P. J.

The evidence fully authorized a finding that the bottles sued for went into the actual possession of the defendant, and were retained and used by him. But as to the truck and stationery items, there appears to have been no proof either of use or of actual delivery. The only evidence of delivery of the truck is, that at the death of the plaintiff’s intestate the car was in a garage at Calhoun, Ga., and that it 'remained there, and that in a conversation ■ with the agent of the plaintiff administratrix, but before he had qualified as such, the defendant said, “When the weather is better, we’ll check this matter up; you leave the truck where it is until I call for it,” and that about three weeks or a month later the defendant repudiated this arrangement and refused to take the truck. On recall the agent testified that the defendant “bought the truck, . . and he told me to leave it where it was until later, and he would get it.” The defendant denied any such agreement. There was no other proof as to a delivery, and no proof of any use or benefit to the defendant, or even of any detriment to the plaintiff, from merely allowing -the truck to remain where it was when the intestate died.

We have considered the evidence with reference to the question as to whether the mere unauthorized constructive delivery such as is here contended to have been made would authorize the recovery for these items as on a quantum valebat or implied contract. Assuming that the evidence quoted above goes far enough to show an unauthorized constructive delivery as part of an intended complete transaction, and not, as some of the testimony tends to indicate, no delivery, or an incomplete delivery, under a mere executory arrangement to complete the transaction when “the weather is better,” we are of the opinion that such an unauthorized constructive delivery will not sustain the recovery, where the car and the stationery merely remained as they were when the intestate died, and the disputed unauthorized and merely constructive delivery was actually repudiated even before the administratrix took charge of the estate, and where the defendant never received any actual possession or any use or benefit, and it does not appear that the plaintiff suffered any injury or detriment. While the recovery for the item of bottles was authorized, the judgment as a whole, including items for the truck and stationery, will be affirmed only upon condition that the plaintiff write off from her recovery the latter items.

Judgment affirmed on condition.

Stephens and Bell, JJ., concur.