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Trover. Lowndes Superior Court. Before Judge Horkan.
The trial judge did not err in denying the plaintiff's motion for summary judgment.
O. Edward Wielgorecki, a resident of Florida, brought this action against George White in the Lowndes Superior Court. The complaint alleged that the defendant was in possession of a certain 1958 Mack truck of the value of $4,000 to which the plaintiff claimed title; the defendant refused to deliver the Mack truck to the plaintiff or to pay any profits therefor; hence the plaintiff sought judgment in the sum of $4,000.
The defendant duly filed his answer predicated on the basis that the complaint failed to state a cause of action against the defendant upon which relief could be granted, denying that the plaintiff had any claim to title to the vehicle, and for another defense setting forth that he had incurred certain expenses for services and repairs upon the vehicle which were owed him and that he purchased the vehicle from one Donald Cannon for consideration of $1,800 and claimed title by virtue of a bill of sale from Cannon. The bill of sale which is attached as an exhibit to the answer was from Donald Cannon to George White reciting consideration of $1,800, containing a certification that there was no lien or mortgage against the vehicle and further reciting "lost title had been applied for in the State of Florida."
The plaintiff moved for summary judgment on the ground that there was no genuine issue as to any material fact and further requested the court that if judgment was not rendered in his favor upon the whole case that the court make an order specifying the facts that appear without substantial controversy under the provisions of CPA 56 (Code Ann. 81A-156; Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238). In support of the motion the plaintiff introduced his own affidavit which recited that he had purchased a vehicle on June 14, 1972 and had obtained a motor vehicle certificate of title from the State of Florida and that he had not disposed of the vehicle and that title still remained in him. He further stated in his affidavit that he had not consented to the defendant's possession or to any repairs being made on the vehicle and that he did not allow Donald Cannon to act for him; that Donald Cannon had taken the vehicle without his permission and converted it to his own use; that he had never received any money for the sale of the vehicle to the defendant.
He further related that he paid $4,000 for the vehicle in 1972 and that based on his experience in buying, selling and repairing vehicles in his opinion the value of the vehicle was $4,000 at the time it was converted.
In opposition to the motion for summary judgment the defendant introduced an affidavit of Fritz Templeton who testified as follows: That he was personally acquainted with Donald Cannon who resided in Jasper, Florida (the same area as the plaintiff's residence); that he was personally familiar with the vehicle in question; that the vehicle was sold as a used unit by Valdosta Machine Sales and that Donald Cannon accepted delivery and made payment for the vehicle more than two years ago in Valdosta, Georgia; that Donald Cannon executed a bill of sale to George White, the defendant, d/b/a Valdosta Diesel Service, and received a check in the amount of $1,800; that the plaintiff, claiming title to the vehicle, came to Valdosta and at that time stated he had not received the funds for the wrecker, that he had in fact requested that Donald Cannon find a buyer and sell the vehicle. The affiant further related "during the time that the wrecker was located at Valdosta Diesel Service that repairs were made to this unit in the amount of $674.77, and deponent further states that based upon his knowledge of similar wrecker units, that its value was not more than $2,000 at the time of its purchase by Valdosta Diesel Service."
The motor vehicle certificate of title (State of Florida) was also introduced as proof on the motion. It showed that O. Edward Wielgorecki was the registered owner of the vehicle and that the State Exchange Bank was the first lien holder of the vehicle and that such first lien had been paid on September 7, 1973. The back of the certificate contains what was apparently the plaintiff's signature on a transfer of title which had been scratched out. The space for a purchaser had been left blank and the date was December 28, 1973.
The trial judge overruled and denied the plaintiff's motion for summary judgment. Upon a certificate for review appeal was taken to this court.
1. A certificate of title issued by the commissioner is prima facie evidence of the facts appearing on it. Code Ann. 68-411a (c) (Ga. L. 1961, pp. 68, 76; 1962, pp. 79, 83); Thornton v. Alford, 112 Ga. App. 321, 323 (145 SE2d 106); Cochran v. Harris, 123 Ga. App. 212, 216 (180 SE2d 290).
Code Ann. 68-415a (d) (Ga. L. 1961, pp. 68, 78) provides: "Except as provided in section 68-416a and as between the parties, a transfer by an owner is not effective until the provisions of this section and section 68-416a have been complied with and no purchaser or transferee shall acquire any right, title, or interest in and to a vehicle purchased by him unless and until he shall obtain from the transferor the certificate of title thereto, duly transferred in accordance with the provisions of this section." (Emphasis supplied.)
As pointed out in Rockwin Corp. v. Kincaid, 124 Ga. App. 570, 572 (184 SE2d 509), the above Code section only applies in a case in which the vehicle in question has previously been issued a Georgia certificate of title by the Revenue Commissioner. It is therefore clear that both Code sections have reference to a Georgia certificate of title.
How stands now a certificate of title from another state? Code Ann. 68-408a (c) (Ga. L. 1961, pp. 68, 74; 1962, pp. 79, 83; 1964, pp. 436, 437) sets forth: "If the application refers to a vehicle last previously registered in another state or country, the application shall contain or be accompanied by: (1) Any certificate of title issued by the other state or country; (2) Any other information and documents the commissioner reasonably requires to establish the ownership of the vehicle and the existence or nonexistence of security interests in it and liens against it." The Rules of the Department of Revenue, Chapter 560-10-12-.08 of which we take judicial notice (Code Ann. 3A-108; Ga. L. 1964, pp. 338, 346) further require: "Proof of Ownership of Vehicles Previously Registered Out of State. When an owner submits an application for a certificate of title on a vehicle which was last previously registered by another state and on which no certificate of title has been issued, a proper bill of sale from an out-of-state dealer shall be sufficient evidence of ownership of the vehicle to authorize the issuance of a Georgia motor vehicle certificate of title for such vehicle."
From a reading of these provisions it seems clear that the certificate of title from another state does not stand on the same level as one from Georgia. However, even if it did, the certificate of title is not conclusive on the question of title. "By being only prima facie evidence of this fact, it can be contradicted by other evidence." Cochran v. Harris, 123 Ga. App. 212, 216, supra.
Even though agency cannot be established by declaration of agent alone, Warnock v. Elliott, 96 Ga. App. 778, 790 (101 SE2d 591), it may be shown by the admissions of the principal. Ham v. Brown Brothers, 2 Ga. App. 71 (4) (58 SE 316); Bazemore v. Small Co., 9 Ga. App. 29 (3) (70 SE 261); Hatcher v. Seitz, 87 Ga. App. 787, 788 (75 SE2d 273). See William Hester Marble Co. v. Walton, 22 Ga. App. 433 (5) (96 SE 269). Moreover, proof of agency may be made by showing circumstances, apparent relations and conduct of the parties. Cable Co. v. Walker, 127 Ga. 65 (1) (56 SE 108). See Universalist Convention v. Guest, 179 Ga. 168 (2) (175 SE 466).
A principal may by ratification or by failure to repudiate acts be bound. Code 4-303. Butler v. Moore, 125 Ga. App. 435 (2) (188 SE2d 142). Whether such ratification occurred is usually a question for a jury. Coursey v. Consolidated Naval Stores Co., 22 Ga. App. 538 (3) (96 SE 397). Giving the proof an interpretation in favor of the party opposing the motion for summary judgment there was a question for the jury as to whether Cannon was acting on behalf of the plaintiff.
Here the defendant introduced some proof which would tend to bring the case within one of the exceptions with regard to a Georgia certificate of title in that he offered proof that Cannon was acting as the plaintiff's agent. In which case the plaintiff and defendant are parties within the meaning of Code 68A-415a (a) (Ga. L. 1961, pp. 68, 78), and thus the certificate of title would not be controlling. Allen v. Holloway, 119 Ga. App. 676 (168 SE2d 196).
The cases cited by the plaintiff, Capital Auto. Co. v. Continental Credit Corp., 117 Ga. App. 451 (160 SE2d 836) and Kinder v. General Motors Acceptance Corp., 117 Ga. App. 610 (161 SE2d 372), are authority for the proposition that a prior lien listed on an out-of-state certificate of title would be given validity and preference in Georgia to a later acquiring of the property. They do not hold that an out-of-state certificate of title would stand conclusively to establish title in the State of Georgia.
2. The proof offered as to value of the vehicle was the opinion of the plaintiff and thus would not authorize the grant of a summary judgment. Ginn v. Morgan, 225 Ga. 192 (2) (167 SE2d 393); Harrison v. Tuggle, 225 Ga. 211 (2) (167 SE2d 395).
Since issues of fact remain (1) as to whether Cannon was acting for the plaintiff so as to allow the defendant to show he did acquire title, (2) as to what was the value of the vehicle, the trial judge properly denied the motion for summary judgment.
Judgment affirmed. Bell, C. J, and Clark, J., concur.
Walker, Yancey & Gupton, Reuben H. Yancey, for appellee.
Young, Young & Ellerbee, O. Wayne Ellerbee, for appellant.
Friday May 22 11:09 EDT

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