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DIXON et al. v. BORG-WARNER ACCEPTANCE CORPORATION.
75887.
SOGNIER, Judge.
Action on agreement. Gwinnett Superior Court. Before Judge Henderson.
Borg-Warner Acceptance Corporation brought suit against A. David Dixon, Jane B. Dixon, and Norcross Marine, Inc., to recover sums owed it under an inventory financing agreement. The jury returned a verdict in favor of Borg-Warner for $23,000, and the Dixons and Norcross Marine appeal from the denial of their motions for judgment notwithstanding the verdict and for a new trial.
The record reveals that Norcross Marine entered into an inventory financing agreement with appellee whereby appellee agreed to finance the purchase of boats, trailers and accessories for resale. The Dixons signed personal guarantees for payment of the sums advanced under the agreement. Under the terms of the agreement, appellee acquired a security interest in each item financed, which terminated when Norcross Marine sold the merchandise and paid over to appellee, from the proceeds of the sale, the amount of its indebtedness as to that item.
During a regular field inspection at Norcross Marine, appellee discovered that some merchandise it had financed was no longer on the showroom floor, although the indebtedness had not been paid on those items. Appellee concluded that these items had been sold "out of trust," i.e., that appellants had sold the merchandise without turning over to appellee that portion of the proceeds representing appellants' debt to appellee as to that item. Appellee brought suit against appellants for the entire outstanding balance under the financing agreement, and the trial court entered an order granting appellee an immediate writ of possession unless appellants paid into the registry of the court the entire remaining indebtedness. When appellants were unable to do so, appellee repossessed all inventory remaining in the showroom as to which it had a security interest and resold the inventory to the manufacturers of the goods. Since the repurchase price completely covered appellants' debt to appellee as to the repossessed inventory, appellee thereafter amended its complaint to reflect the reduction in the amount of the indebtedness, in essence seeking recovery only for the amount due on those items sold "out of trust" before the repossession.
Appellants argue in their brief on appeal that appellee had a blanket security interest in all inventory, rather than separate security agreements as to each item, and consequently the repossessed items cannot be considered separately from the items sold "out of trust" in deciding whether a deficiency existed. Although this reasoning is similar to that advanced in our opinion in C. Itoh Indus. Machinery v. Forklift Svc. Co., 180 Ga. App. 125 (348 SE2d 551) (1986), aff'd 256 Ga. 757 (354 SE2d 159) we note that appellants failed to raise this issue below, and" '[a] ground not mentioned in a motion for directed verdict cannot thereafter be raised on appeal. [Cits.]' [Cits.]" Grabowski v. Radiology Assoc., 181 Ga. App. 298, 299-300 (352 SE2d 185) (1986). Accordingly, we find no merit in appellants' enumerations of error.
J. Loren Fowler, for appellee.
V. Lee Thompson, Jr., for appellants.
DECIDED APRIL 14, 1988.
Friday November 21 14:18 CST


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