Consolidated Loan & Finance Co. of Atlanta, Inc. v. Howell

Court of Appeals of Georgia

Consolidated Loan & Finance Co. of Atlanta, Inc. v. Howell

157 S.E.2d 328, 116 Ga. App. 308, 1967 Ga. App. LEXIS 791

Court of Appeals of Georgia·Decided September 13, 1967·No. 43002·Published

Opinion

Felton, Chief Judge.

The provisions of the conditional sale contract, (not a negotiable instrument in this case, and which was assigned to the plaintiff with notice of the assignment to the defendant debtor) that in default of any installment payment the seller “may” declare the unpaid balance immediately due and “may” retake the property and sell it at public or private sale and that such rights are cumulative of any other right seller has at law or in equity do not preclude the assignee of the contract from suing thereon and obtaining a general judgment for the balance due thereon. The Civil Court of Fulton County ruled that the failure of the assignee to retake the prpperty precluded the action on the contract. The provision for retaking the property was permissive only and did not preclude the bringing of an action to recover the balance due on the contract. The superior court erred in denying the petition for certiorari.

Judgment reversed.

Hall and Eberhardt, JJ., concur.

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Felton, Chief Judge.

The provisions of the conditional sale contract, (not a negotiable instrument in this case, and which was assigned to the plaintiff with notice of the assignment to the defendant debtor) that in default of any installment payment the seller “may” declare the unpaid balance immediately due and “may” retake the property and sell it at public or private sale and that such rights are cumulative of any other right seller has at law or in equity do not preclude the assignee of the contract from suing thereon and obtaining a general judgment for the balance due thereon. The Civil Court of Fulton County ruled that the failure of the assignee to retake the prpperty precluded the action on the contract. The provision for retaking the property was permissive only and did not preclude the bringing of an action to recover the balance due on the contract. The superior court erred in denying the petition for certiorari.

Judgment reversed.

Hall and Eberhardt, JJ., concur.

Consolidated Loan & Finance Co. of Atlanta, Inc. v. Howell, 157 S.E.2d 328, 116 Ga. App. 308, 1967 Ga. App. LEXIS 791 (Ga. Ct. App. 1967).

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157 S.E.2d 328 (Consolidated Loan & Finance Co. of Atlanta, Inc. v. Howell) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.