Smith v. C. I. T. Corp.

197 S.E. 322, 186 Ga. 199, 1938 Ga. LEXIS 586

• Court: Supreme Court of Georgia
• Decided: May 14, 1938
• Docket: No. 12191
• Status: Published

Opinion

Russell, Chief Justice.

1. After a careful consideration of the record and the assignments of error, this court has reached the conclusion that the decision of the Court of Appeals is correct, except as to the construction placed upon the decision by this court in General Motors Acceptance Corporation v. Coggins, 118 Ga. 643 (113 S. E. 841). The decision in the Coggins case does not mean that the holder of the contract, when suing in trover, is without any duty to account for the notes or other evidence of indebtedness, so as to show that the vendee will incur no further risk or liability thereon. It appears from the record, however, that such duty was sufficiently met in the instant case, and the judgment of the Court of Appeals will not be reversed for the inapt reference to the decision in the Coggins case. See Securities Trust Co. v. Marshall, 30 Ga. App. 379 (7) (118 S. E. 478).

2. The defendant in his answer having admitted possession and denied the plaintiffs right of possession, contending unconditionally that such right was solely in himself, the Court of Appeals properly held that proof of demand and refusal to deliver was unnecessary. If the defendant had not disputed the plaintiff’s right of possession, and had contended only that there was. no conversion because the plaintiff had never demanded the prop-; erty, a different question would have been presented. See Baston v. Rabun, 115 Ga. 378 (41 S. E. 568); Barbour v. Day Co., 37 Ga. App. 267 (139 S. E. 909); Carter v. Spiegel, May Stern Co., 45 Ga. App. 754 (6) (166 S. E. 34); Code, § 107-104.

3. The judgment of the Court of Appeals is not erroneous for any reason assigned.

Judgment affirmed.

All the Justices concur.