Peoples Loan & Finance Corporation v. Raymond Lawson

271 F.2d 529

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 15, 1959
• Docket: 17745
• Status: Published

Opinions

HUTCHESON, Circuit Judge.

Brought by Raymond Lawson, the ap-pellee, against Peoples Loan & Finance Corporation, the appellant, and two of appellant’s agents, the suit was in trover for the wrongful conversion by the appellant and its agents of eleven automobiles owned by him. The damages sought were the market value, alleged as $13,095, of the automobiles and the reasonable hire thereof from the date of conversion. The appellant denied that plaintiff was the owner of the automobiles described in the complaint, alleged a value of $9960.00 for ten of them, and asserted by way of special defense that title to the automobiles had vested in appellant or appellant was an innocent purchaser, * against whom Lawson was es-topped to assert his title, if any.

Thereafter, appellant, alleging that Georgia Casualty and Surety Company, which had given its check to plaintiff for the larger part of the loss under a loan receipt, was a real party in interest, moved to add it as a party plaintiff, and the motions denied, there was a trial on the merits¹ before a jury resulting in a verdict and judgment for plaintiff for $11,655.00, as the value of the automobiles, and $2,369.85, as their rental value between the time of conversion and the time of trial.

Defendant-appellant, asserting reversible errors,² is here insisting that the judgment was wrong and must be reversed.

We do not think so. On the contrary, for the reasons hereafter briefly stated, we think the judgment was right and must be affirmed.

Appellant’s first contention that payment by the insurance company, notwithstanding the loan receipt, was not a loan but a payment, and the company, as subrogee, should have been made a party to the suit, may be summarily disposed of. It is sufficient to say of it that the law is settled to the contrary and to refer in support to Luckenbach v. W. J. McCahan Sugar Rfg. Co., 248 U.S. 139, at pages 148-149, 39 S.Ct. 53, 63 L.Ed. 170, and to 39 Am.Jur., “Insurance”, Sec. 1337, pp. 1002-3, 1959 Supp. p. 222. Cf. also Green v. Johns, 86 Ga. App. 646, 72 S.E.2d 78, and Augusta Broadcasting Co. v. United States, 5 Cir., 170 F.2d 199.

Appellant’s reliance on United States v. Aetna Cas. & Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171, is entirely misplaced, both because that suit had to do only with the Anti-Assignment Act, R.S. 3477, 31 U.S.C.A. § 203, and because there no loan receipt was involved, and, as shown at page 382 of 338 U.S. at page 216 of 70 S.Ct.; it was held that the Surety Co., though it had paid without taking a loan receipt, was not an indispensable party. If, here it could be claimed that Georgia Casualty and Surety Company was a proper or necessary party, it certainly was not indispensable, and since its joinder would have ousted the jurisdiction of the court, the refusal to join it could not have been error.

The same summary disposition may be made of the claims: that plaintiff did not prove that it had ever had title to the automobiles; that there was insufficient competent evidence to support the verdict; and that the admission of evidence and the charge as to the value and sales price of the automobiles at the auction in Chattanooga was error. This is so because, under the uncontradicted evidence, when Lawson sold the automobiles to Douglas, he did have the title and the case was tried on the theory that he had. Indeed, appellant, in its defense, alleged that “plaintiff Raymond Lawson, dba Chattanooga Auto Auction, sold to Douglas Motor Sales, Inc., in the normal and usual course of the business of said automobile company, the cars in question”. Under the laws of Georgia, therefore, there was no real issue, either factual or legal, as to whether Lawson had title to the automobiles at the time Douglas, through whom alone appellant claims, purchased them from Lawson at Chattanooga. Conley v. Thornton, 81 Ga. 154, 7 S.E. 127.

In the light: of the verdict for only $11,655, the admission of the appellant in his pleadings that the value of the automobiles was $9960.00; of the evidence as a whole as to value; and of the liberal rules governing proof of value in Georgia and elsewhere,³ it is little short of frivolous to assert that it was error to charge that the jury could consider evidence of sales prices and that, because of the insufficiency of proof as to value, a verdict should have been directed. Moreover, appellant put forward below no such ground for the direction of a verdict, and he cannot do it here.

This brings us to the storm center of the case, the error most strongly pressed and relied on, that a verdict should have been directed on the ground that the evidence established as matter of law that defendant was a bona fide purchaser and plaintiff was estopped to assert title against it.

On its part, appellant, quoting from Gouldman-Taber Pontiac, Inc. v. Thomas, 96 Ga.App. 279, 99 S.E.2d 711:

"Where a car is purchased by a check, later found to be worthless, and where such car is put into possession of the purchaser and is later sold by the original purchaser to an innocent purchaser for valuable consideration, trover will not lie for the original seller to recover the property.”

and citing in support Capital Automobile Co. v. Ward, 54 Ga.App. 873, 189 S.E. 713; Blount v. Bainbridge, 79 Ga.App. 99, 53 S.E.2d 122; Wolfe v. Smith, 80 Ga.App. 136, 55 S.E.2d 675; and Southern Discount Co. v. Elliott, 86 Ga.App. 50, 70 S.E.2d 605; asserts that the facts of this case bring it within the principle there laid down and require verdict and judgment for appellant.

Appellee, quoting from Cobb County, etc. v. Board of Lights, 211 Ga. 535, 87 S.E.2d 80, at page 84:

“Before an equitable estoppel will rise, the party asserting it must have relied and acted upon the declarations or conduct of the party sought to be estopped and not on his own knowledge or judgment.”

and from East Atlanta Bank v. Nicholson, 83 Ga.App. 557, 63 S.E.2d 699, 701:

“The defendant did nothing to mislead or deceive the plaintiff to make the loans to Waters. The plaintiff relied upon nothing except Waters word in making the loans. The defendant conferred no power upon Waters which was used to inflict the injury upon the plaintiff.”

urges upon us that the case of Gould-man-Taber, supra, like the other cases relied on by appellant, does not state any -different ruling, and that, under the evidence in this case, the verdict of the jury was amply supported, if not demanded.

Pointing to the facts: that plaintiff in his bill of sale expressly reserved title until the check was paid; that defendant did not see or ask to see the bill of sale or otherwise inquire about its terms; that it did not see or ask to see the automobiles; that it relied upon nothing that the plaintiff had done; that it simply accepted the application for the loan on the statement of the borrower; and that, under the law of Tennessee, where the sale was made, Edwards v. Central Motor Co., 198 Tenn. 50, 277 S.W.2d 417, as in Taylor v. Gill Equip. Co., 87 Ga.App. 309, 73 S.E.2d 755; Douglas Motor Sales, Inc. v. Cy Owens Inc., 99 Ga.App. 890, 109 S.E.2d 874 and generally elsewhere, the title to the car did not pass; appellee insists that, under the evidence, including especially the relation between appellant, the borrower, and Douglas, the insolvent lender, a case was made out fully supporting, if not demanding, the jury verdict.

A careful reading of the Georgia cases on the point, including particularly the Gouldman-Taber case, supra, relied on by appellant, and the East Atlanta Bank case, supra, relied on by appellee, leaves us in no doubt that, under Georgia law, the equities here are with the appellee, and the verdict of the jury is amply supported by the evidence, perhaps indeed demanded by it.

In the well reasoned Gouldman-Tabor case, Judge Gardner, writing the opinion, gathers together and discusses other Georgia cases upon their particular facts. Stating that the principle relied on in the Gouldman case was first enunciated in the leading case of Capital Automobile Co. v. Ward, 54 Ga.App. 873, 189 S.E. 713, he relies strongly on it as correctly stating the rule and its basis. It is interesting to note that Judge McIntyre, who wrote the opinion in that case, wrote the opinion in the later case of East Atlanta Bank v. Nicholson, on which appel-lee relies, and that, in the latter opinion, he stated that there was nothing in the earlier opinions contrary thereto.

We think the judgment was right and that it must be affirmed.

Affirmed.

1 . Stated, as they must be, in the light most favorable to the jury verdict, these are the material facts:

On August 1, 1957, Douglas Dennard, president of Douglas Motor Sales, Inc., a used car dealer at Rome, Georgia, went to Chattanooga, Tennessee, where he purported to purchase from Raymond Lawson, dba Chattanooga Auto Auction, the eleven automobiles in suit. Dennard gave Lawson certain checks drawn on the Bank of Dalton, which, had they been honored and paid, wonld have paid the purchase price of the automobiles.

Lawson thereupon delivered to Dcnnard a written document as to each automobile in which it was specifically provided that the title to each automobile would remain in the seller, i. e., Chattanooga Auto Auction, in which name Lawson did business, until “any check or draft given for the sale price of said vehicle, or any part of the same, has been honored and paid in full”. These documents further provided that “until said check or draft shall have been honored and paid in full, title to the above described vehicle shall be retained by the seller and not pass to buyer nor shall this sale be considered consummated. * * ”

The checks given to Lawson by Den-nard for the eleven automobiles were dishonored and Lawson was not paid for the automobiles. The automobiles were in possession of Lawson at the time Douglas was permitted to carry them away, following the giving of the checks by Douglas and the delivery of the eleven documents by Lawson.

Lawson testified that in his opinion the market value of each of the eleven automobiles from Aug. 1, to Aug. 10, 1957, was the sum shown under the heading “Sales Price,” on the copy of the sales document for each car as shown by the eleven documents introduced in evidence as Plaintiff’s Exhibit No. 1. These were also the prices which Douglas Motor Sales, Inc., which had its place of business at Rome, Georgia, had agreed to pay for the automobiles.

On Aug. 2, 1957, a representative of Douglas Motor Sales, Inc. one Branan prepared 11 notes and bills of sale to secure debt, by the terms of which Douglas Motor Sales, Inc. purported to convey the eleven automobiles in suit to appellant as security for loans of money made by appellant to Douglas. Branan took them to Dan Smith, a loan officer in the employ of appellant, and Smith issued appellant’s check payable to Douglas Motor Sales, Inc. for $10,520.00, the amount of the loan.

Smith testified that Branan did not deal with anyone else at Peoples Loan and Finance Corp. in connection with the loans on the eleven automobiles, that Branan dealt only with him. He further testified that at the time he made this transaction with Branan, he “simply took those notes and made this check”; that he didn’t ask anything about where the automobiles came from; that Branan didn’t tell him anything about the automobiles ; that he did not know of his own knowledge where the automobiles were; and that he accepted the notes from Branan “without knowing whether he actually had the cars there or not”.

Appellant had been financing Douglas Motor Sales, Inc. since 1955. Charles N. McOoy was a vice-president and a stockholder in the appellant corporation. He had also been a vice-president and director of Douglas Motor Sales, Inc. since 1955. McOoy had been associated with appellant finance corporation since 1947. However, because of Ms “finance company affiliations”, he found it necessary to resign as vice-president of Douglas Motor Sales, Inc. in writing on Aug. 2, 1957, the same day that appellant claims to have made the loans to Douglas on the automobiles in suit.

Appellant had information in its records on July 29, 30, and 31st and August 1, 1957, which, had it been consulted, would have led it to the discovery that Douglas Motor Sales, Inc. could not continue business due to financial difficulties.

On Aug. 5, appellant for the first time chocked the identity of the automobiles which it had listed on its bills of sale to secure debt given to Dan Smith by Branan on August 1, by checking the motor numbers on the automobiles actually found on Douglas Motor Sales lot. It then took possession of the automobiles, sent them to Marietta, Georgia, and sold them to various purchasers.

2 . (1) The denial of its motion to add Georgia Cas. & Surety Co. as a party plaintiff;

(2) The denial of its motions to direct a verdict because (a) plaintiff failed to prove that it had ever had title to the automobiles; (b) because, if it had had title, the evidence established as matter of law that defendant was a bona fide purchaser and plaintiff was estopped to assert title against it; and (c) because there was insufficient competent evidence of value to support the verdict;

(3) The admission of evidence as to the value of the automobiles in Chattanooga and the charge of the court that the sales price at the auction there could be considered by the jury on the issue of value;

(4) The claimed error in the charge that unless the defendant, at the time of making the loan, relied on the fact of actual possession of the cars by the sender, it could not assert the defense of estop-pel.

3 . Grant v. Dannals, 87 Ga.App. 389, 74 S.E.2d 119; Farm Products Co. v. Eu-banks, 29 Ga.App. 604, 116 S.E. 327; Frost & Co. v. Powell, 10 Ga.App. 95, 72 S.E. 719.