Mallary Bros. Machinery Co. v. Wood

Supreme Court of Georgia

Mallary Bros. Machinery Co. v. Wood

66 S.E. 785, 133 Ga. 615, 1909 Ga. LEXIS 286

CourtSupreme Court of Georgia

DecidedDecember 23, 1909

StatusPublished

Cited by2 cases

This text of 66 S.E. 785 (Mallary Bros. Machinery Co. v. Wood) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mallary Bros. Machinery Co. v. Wood, 66 S.E. 785, 133 Ga. 615, 1909 Ga. LEXIS 286 (Ga. 1909).

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Opinion

Lumpkin, J.

1. This ease is substantially controlled by the decision in Wall v. Johnson, 88 Ga. 524, which has not been reviewed or modified; nor was any request made for this court to review or modify it. See also Muse v. Wright, 103 Ga. 783 (30 S. E. 662) ; Grant v. Miller, 107 Ga. 804 (33 S. E. 671); Scarboro v. Goethe, 118 Ga. 543 (45 S. E. 413). (a) There was not such clear evidence of an agreed rescission of the contract of conditional sale of personalty as to authorize the grant of a nonsuit on that ground.

2. Where an action to recover personal property was brought, and bail process issued, and on failure of the defendant to give bond the plaintiff d'id so and took possession of the property and sold a portion of it, this would prevent him, from electing to take a money verdict at the trial, but would not prevent him from proceeding for hire and cost. Mallary v. Moon, 130 Ga. 591, 595 (61 S. E. 401).

3. That the plaintiff in an action of trover had not announced his election of the form of verdict which he desired when the evidence on behalf of the plaintiff closed would furnish no ground for a nonsuit. This is specially true where, upon failure of the defendant to give bond in a bail proceeding in the action of trover, the plaintiff gave a bond, took possession of the property and sold some of it, so that he could not elect to take a money verdict.

Judgment reversed.

All the Justices concur.

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Lumpkin, J.

1. This ease is substantially controlled by the decision in Wall v. Johnson, 88 Ga. 524, which has not been reviewed or modified; nor was any request made for this court to review or modify it. See also Muse v. Wright, 103 Ga. 783 (30 S. E. 662) ; Grant v. Miller, 107 Ga. 804 (33 S. E. 671); Scarboro v. Goethe, 118 Ga. 543 (45 S. E. 413). (a) There was not such clear evidence of an agreed rescission of the contract of conditional sale of personalty as to authorize the grant of a nonsuit on that ground.

2. Where an action to recover personal property was brought, and bail process issued, and on failure of the defendant to give bond the plaintiff d'id so and took possession of the property and sold a portion of it, this would prevent him, from electing to take a money verdict at the trial, but would not prevent him from proceeding for hire and cost. Mallary v. Moon, 130 Ga. 591, 595 (61 S. E. 401).

3. That the plaintiff in an action of trover had not announced his election of the form of verdict which he desired when the evidence on behalf of the plaintiff closed would furnish no ground for a nonsuit. This is specially true where, upon failure of the defendant to give bond in a bail proceeding in the action of trover, the plaintiff gave a bond, took possession of the property and sold some of it, so that he could not elect to take a money verdict.

Judgment reversed.

All the Justices concur.

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66 S.E. 785, 133 Ga. 615, 1909 Ga. LEXIS 286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mallary-bros-machinery-co-v-wood-ga-1909.

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