McEntire v. Naylor

Court of Appeals of Georgia

McEntire v. Naylor

171 S.E. 387, 47 Ga. App. 752, 1933 Ga. App. LEXIS 643

CourtCourt of Appeals of Georgia

DecidedOctober 21, 1933

Docket23365

StatusPublished

Cited by2 cases

This text of 171 S.E. 387 (McEntire v. Naylor) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McEntire v. Naylor, 171 S.E. 387, 47 Ga. App. 752, 1933 Ga. App. LEXIS 643 (Ga. Ct. App. 1933).

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Opinion

Sutton, J.

1. Under the evidence adduced on the trial of a trover action, the contract on which the plaintiff relied to show title and right of poso session in himself was a mere executory agreement to sell, not passing title to the personalty which was the subject-matter of the trover action; and in such a case, although a part of the purchase-money has been paid down, the sale can not be rendered executed simply by a tender by the vendee of the remainder of the purchase-money, where the vendor, repudiating the contract, declines the tender and refuses to deliver the property. Civil Code (1910), 4125; Dudley v. Isler, 21 Ga. App. 615 (3, 4) (94 S. E. 827) ; Clark v. Wood, 39 Ga. App. 340 (147 S. E. 173). Accordingly, trover would not lie against the vendor, but the plaintiff’s remedy would be an action for damages for breach of the contract. Maddox v. Wagner, 111 Ga. 146 (36 S. E. 609) ; Clark v. Wood, supra.

2. The court properly directed a verdict against the plaintiff, and did not err in overruling the plaintiff’s motion for new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur. B. B. Lambert, for plaintiff. H. A. Allen, for defendant.

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Sutton, J.

1. Under the evidence adduced on the trial of a trover action, the contract on which the plaintiff relied to show title and right of poso session in himself was a mere executory agreement to sell, not passing title to the personalty which was the subject-matter of the trover action; and in such a case, although a part of the purchase-money has been paid down, the sale can not be rendered executed simply by a tender by the vendee of the remainder of the purchase-money, where the vendor, repudiating the contract, declines the tender and refuses to deliver the property. Civil Code (1910), 4125; Dudley v. Isler, 21 Ga. App. 615 (3, 4) (94 S. E. 827) ; Clark v. Wood, 39 Ga. App. 340 (147 S. E. 173). Accordingly, trover would not lie against the vendor, but the plaintiff’s remedy would be an action for damages for breach of the contract. Maddox v. Wagner, 111 Ga. 146 (36 S. E. 609) ; Clark v. Wood, supra.

2. The court properly directed a verdict against the plaintiff, and did not err in overruling the plaintiff’s motion for new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur. B. B. Lambert, for plaintiff. H. A. Allen, for defendant.

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171 S.E. 387, 47 Ga. App. 752, 1933 Ga. App. LEXIS 643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcentire-v-naylor-gactapp-1933.

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