Padgett v. Collins

81 S.E.2d 309, 89 Ga. App. 769, 1954 Ga. App. LEXIS 577

Opinions

Quilrian, J.

The evidence has been set out somewhat in in detail because it consists only of the testimony of the plaintiff, and it is all material to the sole issue to be determined, which is whether or not the trial court erred in granting a nonsuit. It is well settled that, even though a petition may not set out a cause of action, if the plaintiff proves every fact charged, without at the same time disproving his right to recover by establishing the existence of other undisputed facts which show that he is not entitled to a verdict, it is not proper to award a nonsuit. Clark v. Bandy, 196 Ga. 546 (27 S. E. 2d 17). Conversely, where the plaintiff proves, every fact charged, but at the same time establishes other undisputed facts which show that he is not entitled to a verdict, it is proper to award a* nonsuit. Rountree v. Seaboard Air Line Ry. Co., 31 Ga. App. 231, 236 (120 S. E. 654).

The evidence of the plaintiff shows conclusively that, for a period of time up until approximately four months prior to the transaction here involved, Vance Martin was his agent to purchase and sell automobiles. In this connection he gave Martin two checks, signed in blank, leaving the date, payee, and amount to be filled in. He sent Martin to Leesville, South Carolina, where his agent purchased an automobile with one of these checks. Subsequently and about four months before the transaction here involved, he discharged Martin as his agent, and testified unequivocally that at the time of this transaction Martin was not his agent, but he neglected to recover from him the other check signed in blank. Martin took this check to Valdosta, Georgia, where the plaintiff had not sent him, and, after the termination of the agency, purchased there the automobile which is the subject matter of this litigation from Iiewett Auto Auction, which sold it on behalf of J. E. Mims of Tampa, Florida. Following this transaction, the plaintiff received, as his first notice thereof, a bill of sale for the automobile through the mail. Instead of accepting it and thereby ratifying the transaction, Padgett immediately attempted to stop payment on the check, and thereby repudiated the transaction. The check having already cleared, he then contacted the seller and procured another bill of sale, in which the blank check signed by the plaintiff and given by Martin was shown as the consideration of the transaction.

In order for the plaintiff to recover, the evidence must show a sale of the property by Mims, the owner, through Hewitt Auto Auction, to the plaintiff. The latter, if a party to the transaction at all, was such in his capacity of principal of his agent, Vance Martin. He testified unequivocally that Martin was not his agent and had not been for over four months prior to this sale. Still, the thought might arise as to whether the plaintiff, after Martin’s purchase of the car with his funds, ratified this act. If the plaintiff in this trover action has title or right of possession of the automobile in question, in face of the testimo^^ that Martin was not his agent or acting by his authority in purchasing the car, such right must arise by virtue of ratification of the unauthorized act. The burden of proving a ratification is on the party asserting' it. DeVaughn v. McLeroy, 82 Ga. 687 (4d) (10 S. E. 211). It is well settled that a principal cannot ratify the acts of an agent so as to affect the intervening rights of third parties. Graham v. Williams, 114 Ga. 716 (1) (40 S. E. 790); Dalton Buggy Co. v. Wood, 7 Ga. App. 477 (3) (67 S. E. 121). The evidence here fails to show exactly when the sale by Martin was made to the defendant, but “a vendor of personal property impliedly warrants the title thereto, and a bona fide purchaser thereof for value, without notice of any infirmity in the vendor’s title, will.be protected against loss on account of the same.” Malsby & Co. v. Widincamp, 24 Ga. App. 737 (1) (102 S. E. 178). Accordingly, the defendant here had a right to presume that Martin had title to the property when he purchased it, and the burden was on the plaintiff to show his right to recover, either through an authorized act of his agent in purchasing the car for him, or a ratification of an unauthorized act made at a time when it did not prejudice the rights of innocent third parties.

Code § 96-101 provides as follows: “Three elements are essential to a contract of sale: 1. An identification of the thing sold. 2. An agreement as to the price to be paid. 3. Consent of the parties.” The identification as to such sale as was consummated of the thing sold is well established in satisfaction of the first requirement. The price thereof was well established in satisfaction of the second requirement. As to the third requirement, there was consent of the parties and a valid sale. In order for these parties to be the vendor Mims and the vendee Padgett, the latter must have been represented by an agent authorized to act in his behalf, or he must have ratified the contract at a time when such ratification did not affect the intervening rights of the third person, Collins, the defendant here. Insofar as the case is laid on the proposition that the plaintiff was represented by an agent with authority to buy the car, the case is not proved as laid. Insofar as it is laid on the proposition that the plaintiff ratified the acts of Martin who purported to act in his behalf, the testimony of the plaintiff to the effect that Martin presented a check signed by him in payment of the car and received a bill of sale thereon made out to the plaintiff, is sufficient to present a jury question as to whether or not Martin was purporting to act for the plaintiff. However, in order to establish the case as laid on this theory, the plaintiff must go one step further and show that he ratified the transaction at such time and in such manner as not to affect the intervening rights of the third-party defendant. In this respect the evidence of the plaintiff fails. In the first place, Padgett refused to accept the bill of sale first received by him, and by undertaking to stop payment on the check repudiated the transaction. His later effort to ratify it fails to carry with it also evidence showing that he did this at a time and in a manner not affecting the intervening rights of the defendant. As previously pointed out, this is an essential element of the plaintiff’s case as to which the burden of proof rested upon him to establish. No sale of the property to the plaintiff through an authorized agent is shown by the evidence. The sale to the plaintiff shown by the evidence on the theory that he ratified an unauthorized act of a person purporting to act in his behalf fails to show -that such ratification came about at a time and in a manner so as not to affect the intervening rights of the defendant. In a trover action, to establish a prima facie case, the plaintiff must show title or the right of possession in himself. Jones v. McCowen, 34 Ga. App. 801 (131 S. E. 290); Perdue v. Griffin, 32 Ga. App. 100 (1) (122 S. E. 713). The plaintiff here was never in actual possession of the property, and based his action upon the theory that, lie held the legal title. The burden was therefore upon him to show a valid legal title as against the defendant, and under such circumstances the fact that he might have equitable title by reason of having paid the purchase money would not be sufficient. Southern Discount Co. v. Elliott, 86 Ga. App. 50 (70 S. E. 2d 605). To show such legal title in himself, it was necessary for him to prove that he ratified the unauthorized act of his purported agent prior to the purchase of the property by the defendant, who was an innocent third party, because, unless he did so, his act would not relate back to Martin’s original purchase so as to vest the title in himself. This he failed to do, and accordingly he failed to prove his case as laid.

The evidence without question authorizes a finding that the plaintiff here had an equitable title to the automobile. The legal title, however, was vested in Martin. Recognizing this principle, the plaintiff cites and relies on James v. Newman, 73 Ga. App. 79 (35 S. E. 2d 581) as authority for his right to recover under the evidence in this case. That case and the case at bar are similar factually, and here as in that case the right of the plaintiff to recover is based upon his occupying the legal status of the beneficiary of an implied trust. In the James case the plaintiff’s husband purchased an automobile with her funds, took title to it in his name, and finally left it in the possession of a third party to keep for him. This court, in an opinion written by Judge Parker, held that the plaintiff was, in the circumstances related, entitled to recover the property in a trover suit brought against the person into whose possession the plaintiff’s husband had delivered it. In the instant case it is true that Vance Martin did, without authority or permission, purchase the automobile with the plaintiff’s check. He did, just as did the plaintiff’s husband in the James case, hold the automobile in trust for the plaintiff. The plaintiff could have instituted a trover action against him or any person holding the automobile for his benefit. But, just at that stage this case and the James case depart from each other so widely in factual pattern that each is controlled by distinct principles of law. The departure lies in the fact that in the James case the property remained in the control of the trustee and was held for his benefit by the defendant, while in the instant case the chattel in question was sold for value by the trustee to a bona fide purchaser who had no knowledge or notice of the plaintiff’s equitable? title. It will here be observed that, when one purchases property with another’s funds, the latter is immediately vested, not with the legal title, but as a beneficiary of a constructive trust with an equitable title to the property. Code § 108-110. While this equitable title can, as held in the James case, be asserted by trover against the trustee or those holding the property for him, it cannot be asserted against one who, like the defendant here, occupies the position of a bona fide purchaser of the property for value and without notice of the equitable title of a beneficiary of a trust. Code § 108-416; Parker v. Barnesville Savings Bank, 107 Ga. 650 (1) (34 S. E. 365); Gorman v. Wood, 68 Ga. 524 (1); Dill v. Hamilton, 118 Ga. 208 (44 S. E. 989); Hathorn v. May nard, 65 Ga. 168 (1); Southern Discount Company v. Elliott, supra; 54 Am. Jur. 209, Trusts, § 266.

The trial court did not err in granting a nonsuit.

Judgment affirmed.

Gardner, P. J., Townsend, Carlisle, and Nichols, JJ., concur. Felton, C.J., concurs specially.