McElmurray v. Heard Bros.

119 S.E. 220, 30 Ga. App. 677, 1923 Ga. App. LEXIS 625

• Court: Court of Appeals of Georgia
• Decided: July 27, 1923
• Docket: 14686, 14687
• Status: Published

Opinion

Broyles, C. J.

1. “ Where property has been pledged to secure a debt and is wrongfully sold by the pledgee, who nevertheless applies a part of the proceeds to the payment of the debt and tenders the balance to the pledgor as a settlement of their respective rights in the property, an acceptance by the pledgor of the sum tendered, with full knowledge at the time, of all the facts, will be held a ratification of the sale, although such acceptance was under protest; the pledgee not having at the time agreed that such acceptance might be made without prejudice. The action was in trover, and the court did not err in granting a non-suit. Reynolds Banking Co. v. Neisler, 130 Ga. 789 (61 S. E. 828); Stanley v. City of Glennville, 140 Ga. 306 (2 a) (78 S. E. 1064).” Kennedy v. Dexter Banking Co., 29 Ga. App. 95 (113 S. E. 819).

(a) The facts of the instant case are not materially different from those of the Kennedy ease, just quoted from, and the ruling in that case is controlling in this ease, which, like the Kennedy ease, was an action in trover. It follows that the court did not err in awarding a nonsuit.

Judgment on the main hill of exceptions affirmed; cross-hill is- dismissed.

Luke and Bloodworth, JJ., concur. Jordan & Moore, for plaintiff. John B. L. Smith, Grady C. Harris, Harris, Harris & Witman, for defendants.