Wallace v. Flatauer Fixture & Sales Corp.

Eelton, J.

Where plaintiff by written retention-of-title contract purchases from defendant certain equipment and at the execution of the contract pays defendant a down payment on such equipment, and plaintiff requests defendant to hold the equipment on his behalf until he secures a location to install such equipment; and where defendant stores the equipment in accordance with the request and plaintiff never directs defendant where to physically deliver such equipment; and where plaintiff later informs defendant that he could not find a location for the equipment and requests the down payment back and defendant refuses, and plaintiff brings an action of money had and received for the down payment; and where the undisputed evidence shows that defendant still stores the equipment on behalf of plaintiff, Held-.

1. The filing of the suit for the down payment constituted a repudiation of the contract by plaintiff, and under Code § 96-113, defendant had a cause of action against plaintiff for the purchase-price of the equipment irrespective of the fact that defendant still had possession (Screven Oil Mill v. Mente & Co., 43 Ga. App. 780 (160 S. E. 104), and the facts constituting such cause of action are a good defense to the action for the recovery of the down payment. The evidence authorized the court, sitting without the intervention of a jury, to find for the defendant.

Decided April 6, 1951. Augustus M. Roan, for plaintiff. Brown & Shoob, for defendant.

The court did not err in overruling plaintiff’s amended motion for a new trial.

Judgment affirmed.

Sutton, C.J., and Worrill, J., concur.