Dehco, Inc. v. Yancey Bros.
Dehco, Inc. v. Yancey Bros.
Opinion of the Court
Only Headnote 2 requires any elaboration.
On September 19, 1962, appellant Dehco, Inc., instituted a trover action for a Caterpillar No. 60 Series scraper, serial number 2W5552 as transferee under a recorded bill of sale to secure debt from one Gross. This case was tried before the judge without a jury and judgment was entered in favor of the plaintiff, appellant on this appeal. This court reversed the trial court’s finding in view of the fact that the evidence showed the scraper
“Defendant being otherwise a bona fide purchaser and here neither estoppel nor constructive notice preventing such a status, the motion for new trial should have been granted on the general grounds.” Yancey Bros. Co. v. Dehco, Inc., 108 Ga. App. 875, 878 (134 SE2d 828).
Upon retrial, a nonsuit was granted. Within the time required, the appellant brought the present action in three counts. Count 1 was in the “Jack Jones” form for a Caterpillar Series 60 scraper, serial number ID1241. Count 2 incorporated the allegations of Count 1 and alleged that the scraper actually sold to the plaintiff and by the plaintiff sold to Gross, had a serial number ID 1241, but the bill of sale erroneously described it as number 2W5552; that plaintiff had no notice of this discrepancy and when he sold the scraper to Gross, Gross borrowed the purchase money from the Cobb Exchange Bank and plaintiff endorsed the loan papers, and the bill of sale to secure debt from Gross to the bank described the scraper as 2W5552; that the parties relied upon the defendant as to the serial number; that because of default by Gross, plaintiff paid the bank and received an assignment of the note and the bill of sale to secure debt and thereafter “the-scraper was wrongfully converted from Gross and sold to defendant.” This count again alleged a duty to inquire in an attempt to allege constructive notice to defendant of the interest of the plaintiff in scraper number ID 1241. Demand and refusal was alleged. Count 3 incorporated Counts 1 and 2 and contained the additional allegation that “prior to defendant’s purchase, defendant had actual knowledge that its seller did not have title, having been so advised by the said Gross.” Upon the trial it appeared that the defendant had sold,
Burnham, from whom Yancey purchased the equipment, testified, and documentary proof was admitted to that effect, that he purchased the equipment which Yancey picked up on June 1, 1962, from one Evans, on August 2, 1961; that he was familiar with the equipment and that this was the same scraper that had been owned by Washington, and that he owned this scraper from the time he purchased it to the time he sold it to the defendant on June 1, 1962. In all of these transactions, the scraper was described by serial number ID1241 or ID. There was no evidence that the scraper while in possession of plaintiff and Gross had an identification number ID1241 thereon. There was evidence that the scraper in their possession was not a 2W series, but was an ID series scraper.
Applying the ruling in Yancey Bros. Co. v. Dehco, Inc., 108 Ga. App. 875, supra, the evidence in the present case was insufficient to authorize a recovery by the plaintiff unless the testimony of Gross that the scraper that he possessed was stolen from him demanded a finding that the scraper bought by defendant from Burnham was the stolen scraper. In our opinion, this evidence did not demand such a finding. The evidence authorized a finding that the scraper in possession of Gross and which was stolen from him in early 1962 was different from the scraper purchased by Burnham in 1961 and sold by him to the defendant on June 1, 1962. The scraper could not have been in the possession of Gross and Burnham at the same time. The
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.