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Lawskills.com Georgia Caselaw
WELFARE FINANCE CORPORATION v. WATERS.
37217.
Breach of implied warranty. Fulton Civil Court. Before Judge Etheridge, April 9, 1958.
QUILLIAN, Judge.
1. The elements of an action for breach of the seller's title to personalty are the invalidity of the title and loss to the buyer.
2. The holder of a conditional-sale contract, duly recorded in compliance with the statutes pertaining to recordation of such instruments, may, in an action of trover, recover a money verdict against any person who subsequently to the recordation of the contract possessed and disposed of the chattels described therein.
Clyde Waters d/b/a Clyde Waters Motor Company sued Welfare Finance Corporation d/b/a Progressive Finance Company, in the Civil Court of Fulton County.
"May 20, 1957.
"Progressive Finance Company,
583 Central Avenue,
Hapeville, Georgia.
Re: 1955 Ford Victoria.
"Gentlemen:
"Please be advised that our client, Clyde Waters Motor Company of Tucker, Georgia, purchased from the Progressive Finance Company the above stated motor vehicle for the sum of $1375 through your manager, W. F. Wright, who held the car out to be a foreclosure. Thereupon the client, Clyde Waters Motor Company, issued their check No. 742 on the First National Bank of Atlanta in the sum of $1375 to Progressive Finance Company, the same having been endorsed Progressive Finance Company and under it W. F. Wright. Please be further advised that the Associates Loan Company has given us notice that they hold a contract against said property on which there is a present balance of $1224.56, the contract having been dated May 3, 1955 filed for record in Clayton Superior Court May 21, 1955 and recorded in Mortgage Book 42, page 40, said contract being executed by Louie H. Edwards of 147 Spring Street, Jonesboro, Georgia.
"Unless the above contract is paid in full immediately, this office will file suit against the Progressive Finance Company to recover the amount and cost above stated.
Yours very truly,
The defendant demurred on the grounds: "Defendant demurs generally to plaintiff's petition as amended and shows that said petition does not set forth a cause of action against the defendant."
The trial court overruled the demurrer. The defendant excepted.
1. In the interest of clarity this opinion refers to Welfare Finance Corporation as the defendant, and Clyde Waters as the plaintiff, the parties having occupied in the trial court the relations to the case indicated.
The one question for decision by this court is whether the judgment of the trial court overruling the general demurrer to the petition was right or wrong.
The suit is for the breach of the implied warranty, which under the provisions of Code 96-301 is attached to every sale of personalty, that the seller has a valid title to the chattel sold. The elements of an action of this nature are the invalidity of the seller's title and loss to the buyer. A petition which by its allegations makes both of these elements appear is not subject to demurrer.
If the automobile was encumbered by the conditional-sale contract the instrument would necessarily be a valid legal document. This is true because legal lexicographers define the word encumber to mean the placing of the burden of a legal liability upon property. Words and Phrases, Volume 20, p. 588. The legal efficacy of the instrument could also be inferred from the alleged fact that the plaintiff was forced to satisfy the same in order to protect the title of his vendee.
2. The petition shows a breach of the warranty, and loss to plaintiff appears from its allegations. Where through the failure of a warranty in the sale of personalty the vendee becomes liable to pay a sum of money and discharges the liability by paying the money he has unquestionably sustained a loss. The holder of a conditional-sale contract, duly recorded in compliance with the statutes pertaining to recordation of such instrument, may, in an action of trover, recover a money verdict against any person who subsequently to the recordation of the contract has possessed and disposed of the chattels described therein. Branch v. Planters Loan &c. Bank, 75 Ga. 342.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.
Zachary & Hunter, W. E. Zachary, John C. Hunter, contra.
Joel J. Fryer, Sam G. Dettelbach, for plaintiff in error.
DECIDED JULY 16, 1958.
Saturday May 23 01:32 EDT


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