Reynolds v. Wilson

13 S.E.2d 853, 64 Ga. App. 723, 1941 Ga. App. LEXIS 509

• Court: Court of Appeals of Georgia
• Decided: February 15, 1941
• Docket: 28743, 28748.
• Status: Published

Opinions

Felton, J.

L. E. Wilson sued Mrs. W. A. Cotton, Miss Nell Smiley, and Mrs. I. M. Reynolds on a retention-of-title note and contract. The defendants pleaded that they were released from their obligations under the contract, by reason of the fact that L. E. Wilson, without the knowledge, consent, or approval of the defendants, removed the property to which title was retained. Judgment was rendered for Wilson against all the defendants. Their motion for new trial was overruled, and they excepted.

The sole question is whether Wilson rescinded the contract. The contract was transferred to a credit company, and was in its possession when Wilson took over the property. At the time he took it, if he took it without authority, he was guilty of a trespass, but he did not rescind the contract because the right and title to the contract and the property were not in .him. After he acquired possession of the property the contract was reassigned to him. He then instituted a suit on the contract. The contract authorized the holder to take possession of the property and retain all moneys paid thereon for the reasonable use of it, or to sell it at public or private sale and apply the proceeds, less certain expenses, to the contract and pay the buyer the surplus. Whether the act of Wilson in repossessing and retaining the property amounted to a rescission of the contract depends entirely on whether he exercised dominion over it as his own. The uncontradicted testimony in the case is Wilson’s, and it shows conclusively that he repossessed the property for the purpose of protecting it, and that he never treated it as his own. He testified, in substance, that he tried to see the parties who bought the property; that he went where the property was one day, and the door was locked; that at a later date the door was open; that the property was located in a restaurant, but it was not in operation; that one time previously he had been by, and the door was open, and nobody was in the place of business; that the restaurant gave the appearance of not having been operated for several weeks; that the property was stored just as he got it, and all of it was intact; that he repossessed it for the purpose of protecting it and to prevent it from being stolen; and that he was ready to deliver it to the defendants when they paid what was due on the note.

It is doubtful whether the contract authorized the repossession of the property for any purpose other than ah immediate sale under the terms of the contract, and whether it authorized possession pending the obtaining of a judgment and execution etc. However that may be, the act of Wilson, even though wrongful, would not amount to a rescission when he did not treat the property as his own. He did not exercise a dominion inconsistent with his claim against the defendants, even if his acts were inconsistent with their rights. He did not refuse to surrender it on demand. See 37 A. L. R. 98; 83 A. L. R. 963; 99 A. L. R. 1288; Jones on Chattel Mortgages & Conditional Sales, §§ 1394, 13161 The cases cited by the plaintiffs in error, such as General Motors Acceptance Corporation v. Coggins, 178 Ga. 643 (173 S. E. 841), where an action in trover by the seller was held as a matter of law to be a rescission, and others m which the act of the seller was an exercise of dominion over the property as his own, or where he committed acts otherwise amounting to a rescission, are not applicable to the facts of this ease. The uniform conditional sales act is not in effect in Georgia, and cases dealing with it are inapplicable. The judge did not err in overruling the motions for a new trial.

Judgments affirmed.

Sutton, J., concurs.