Eastman Cutting Room Sales Corp. v. Ottenheimer & Co.

472 S.E.2d 494, 221 Ga. App. 659, 32 U.C.C. Rep. Serv. 2d (West) 465, 1996 Ga. App. LEXIS 607

• Court: Court of Appeals of Georgia
• Decided: June 6, 1996
• Docket: A96A0432
• Status: Published

Opinions

Birdsong, Presiding Judge.

Eastman Cutting Room Sales Corporation appeals a judgment, following a bench trial, in favor of Ottenheimer & Company, Inc., on Eastman’s claim under OCGA § 11-2-702 (“Seller’s remedies on discovery of buyer’s insolvency”) for reclamation of equipment sold to Ottenheimer.

After the trial, the trial court found that under an agreement between Eastman and Ottenheimer, Eastman began delivery of the equipment in question in February 1995, the last delivery was made on May 26, 1995, and the equipment was fully installed by June 28, 1995. The trial court further found that on July 2, 1995, Eastman demanded reclamation of the property pursuant to OCGA § 11-2-702, that Eastman did not perfect a security interest in the property, and that Ottenheimer did not make any misrepresentation of solvency within the three months before the property was delivered.

The trial court also found that all of the equipment was received by Ottenheimer within the meaning of OCGA § 11-2-702 (2) on or before May 26, 1995, when Eastman delivered the equipment and Ottenheimer took possession of it. Thus, the trial court found that Eastman’s demand for reclamation on July 2, 1995, was not made within ten days of delivery of the equipment and denied Eastman’s complaint for reclamation.

This appeal followed. Eastman alleges that the trial court erred by holding that Ottenheimer received all of the equipment in question on or before May 26,1995, by finding that Eastman’s demand for reclamation was untimely, and by holding that Eastman was not entitled to reclamation of the equipment under OCGA § 11-2-702 (2). Held:

Under OCGA § 9-11-52 (a) the findings of trial courts in non-jury trials “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” “ ‘Thus, in cases of this nature, the trial judge sits as trier of fact, and his findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them.’ ” (Citation omitted.) Safeway Ins. Co. v. Holmes, 194 Ga. App. 160, 161 (390 SE2d 52).

Review of the transcript shows evidence to support the trial court’s findings. No witness testified that any equipment was delivered after May 26, 1995, and other witnesses testified that except for the final equipment that was delivered on May 26, the equipment was in place in March 1995. Under this evidence the findings of the trial court cannot be disturbed.

Moreover, we find the trial court’s determination that the equipment was delivered by May 26 fully consistent with OCGA § 11-2-103 (1) (c) (“receipt” means taking physical possession of goods) and OCGA § 11-2-401 (2) (title passes on physical delivery). Statutes are to be construed in accordance with their real intent and meaning (Johnson v. Housing Auth. of Atlanta, 198 Ga. App. 816, 817 (403 SE2d 97)), and should be read according to the natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation. Burbridge v. Hensley, 194 Ga. App. 523, 524 (391 SE2d 5).

Accordingly, we find no error.

Judgment affirmed.

Blackburn, J., concurs. Beasley, C. J, concurs specially.