O.C.G.A. § 44-12-154 (2019)

Annotations

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION SETOFF OR RECOUPMENT 1. IN GENERAL 2. RIGHTS OF VENDOR 3. RIGHTS OF VENDEE General Consideration Purpose of section. - O.C.G.A. § 4412-154 seeks to establish a means of adjusting the equities between a purchaser and seller when goods are repossessed. Sizemore v. Beeler, 94 Ga. App. 414, 94 S.E.2d 773, 1956 Ga. App. LEXIS 561 (1956). Scope of section. - O.C.G.A. § 44-12154 is limited to suits brought to recover personal property where the vendor retains title. Powers v. Wren, 198 Ga. 316, 31 S.E.2d 713, 1944 Ga. LEXIS 413 (1944); Hayes v. O’Shield Buick Co., 94 Ga. App. 177, 94 S.E.2d 44, 1956 Ga. App. LEXIS 498 (1956); Wilkes v. Sheppard, 104 Ga. App. 710, 122 S.E.2d 534, 1961 Ga. App. LEXIS 778 (1961). O.C.G.A. § 44-12-154 is sufficiently broad to include not only the immediate assignee of the vendor, but also the assignee of such assignee. Jordan v. Investment Corp., 39 Ga. App. 148, 146 S.E. 498 (1929). Conditional sale is created where a written agreement to purchase a herd of cattle is selected by the vendee, providing for installment payments and for the retention of the title in the vendor until full payment of the purchase price, accompanied by delivery of the cattle selected and

part payment of the purchase money. Sizemore v. Beeler, 94 Ga. App. 414, 94 S.E.2d 773, 1956 Ga. App. LEXIS 561 (1956). Trover action maintainable upon default. - Where property is conveyed by a conditional sales contract the vendor retains title thereto until the purchase price is paid and, in case of default in the payment of the purchase price, the vendor, or the holder of the conditional sales contract, may maintain trover to obtain possession of the property from one in possession of the same. Stanfield v. Crawley, 74 Ga. App. 79, 39 S.E.2d 88, 1946 Ga. App. LEXIS 462 (1946). Trover action based upon retention-of-title contract of sale amounts to rescission of the contract insofar as the plaintiff is concerned, and the defendant or purchaser may elect to treat the proceeding as a rescission and recover what plaintiff has paid on the purchase price less hire or plaintiff may elect to stand on the contract. Columbia Loan Co. v. Parks, 213 Ga. 723, 101 S.E.2d 720, 1958 Ga. LEXIS 259 (1958). Rescission embraces accounting between parties. - A trover action based on rescission of a conditional sale contract necessarily embraces an accounting between the parties and is res judicata

as to the equities between them. Sizemore v. Beeler, 94 Ga. App. 414, 94 S.E.2d 773, 1956 Ga. App. LEXIS 561 (1956); J.G.T., Inc. v. Brunswick Corp., 119 Ga. App. 719, 168 S.E.2d 847, 1969 Ga. App. LEXIS 1221 (1969). Issue in trover action is ordinarily one of title. J.G.T., Inc. v. Brunswick Corp., 119 Ga. App. 719, 168 S.E.2d 847, 1969 Ga. App. LEXIS 1221 (1969). Setoff or Recoupment 1. In General Procedure for pleading setoff is not limited to conditional vendees. J.G.T., Inc. v. Brunswick Corp., 119 Ga. App. 719, 168 S.E.2d 847, 1969 Ga. App. LEXIS 1221 (1969). Condition of property relevant to setoff issue. - Testimony that cattle when repossessed were not as fat or in as good a condition as when they were sold to the defendants, is relevant on the issue made by the defendant in defendant’s plea of setoff, as the plaintiff is entitled to credit for any extraordinary depreciation in the value of the herd. Sizemore v. Beeler, 94 Ga. App. 414, 94 S.E.2d 773, 1956 Ga. App. LEXIS 561 (1956). Amount of damages allowed on sustaining plea of recoupment may be in an amount greater than the defendant has paid to plaintiff under the contract although less than the combined sums paid by defendant to plaintiff and plaintiff’s assignor under the contract. Columbia Loan Co. v. Parks, 213 Ga. 723, 101 S.E.2d 720, 1958 Ga. LEXIS 259 (1958) (case decided prior to adoption of U.C.C.). Measure of damages in retentiontitle contract. - In a suit in trover by the vendor to recover of the purchaser personalty sold to which the vendor has retained title, the measure of damages is the balance due on the contract, with interest, provided it does not exceed the value of the property at the time of the conversion, with interest or hire, or the highest proved value between the conversion and the trial. Dasher v. International Harvester Co. of Am., 42 Ga. App. 130, 155 S.E. 211, 1930 Ga. App. LEXIS 259 (1930). Insufficient plea of payment. - A plea of payment which fails to allege with

reasonable certainty when, how, and to whom the payment was made is insufficient. Williford v. Phillips, 49 Ga. App. 223, 174 S.E. 641, 1934 Ga. App. LEXIS 339 (1934). Agreed purchase money expressed in contract is prima facie evidence of value of property. Dasher v. International Harvester Co. of Am., 42 Ga. App. 130, 155 S.E. 211, 1930 Ga. App. LEXIS 259 (1930). Amount of deductions for vendee’s use of property is within sound discretion of triers of fact. Sizemore v. Beeler, 94 Ga. App. 414, 94 S.E.2d 773, 1956 Ga. App. LEXIS 561 (1956). Instruction proper absent plea of setoff or recoupment. - In trover action for value of automobile a charge to the effect that plaintiff might recover the highest value which plaintiff proves between the time of conversion and the trial is not erroneous as withdrawing from the consideration of the jury repairs made by a mechanic where no special plea of setoff or recoupment was filed by defendant. Meders v. Wirchball, 83 Ga. App. 408, 63 S.E.2d 674, 1951 Ga. App. LEXIS 877 (1951). Judgment authorizing recovery of property is bar to subsequent action of an accounting for payments made in excess of the rental value of the property by a vendee. Cowart v. Brigman Motors Co., 32 Ga. App. 123, 122 S.E. 645, 1924 Ga. App. LEXIS 309 (1924). 2. Rights of Vendor Vendor entitled to deduct property’s rental value. - The vendor is entitled to deduct from installment payments the reasonable rental value while the property is in the hands of the vendee under the sale contract. Sizemore v. Beeler, 94 Ga. App. 414, 94 S.E.2d 773, 1956 Ga. App. LEXIS 561 (1956). Plaintiff entitled to judgment for unpaid balance with interest. - Where the defendant merely pleads that defendant has made certain payments, the plaintiff is entitled to a judgment for the unpaid balance of the principal debt with interest thereon. Smith v. Commercial Credit Co., 28 Ga. App. 403, 111 S.E. 821, 1922 Ga. App. LEXIS 547 (1922).

Rights of Vendor (Cont’d) Where the value of the property, as expressed in a contract, is uncontradicted by the evidence as to the value, the plaintiff is entitled to recover in an amount representing the balance due on the contract with interest. Dasher v. International Harvester Co. of Am., 42 Ga. App. 130, 155 S.E. 211, 1930 Ga. App. LEXIS 259 (1930). 3. Rights of Vendee Vendee entitled to accounting for return of purchase money paid by him. - Where the vendor in a conditional sale contract upon default of the purchaser brings trover and either elects or is by operation of law forced into the position of electing to take a judgment for the property itself, the vendee is entitled under proper pleading to an accounting for the purchase money paid by the vendee, less amounts covering the reasonable value of the use of the property while in the vendee’s possession and any depreciation over and above ordinary wear and tear. Sizemore v. Beeler, 94 Ga. App. 414, 94 S.E.2d 773, 1956 Ga. App. LEXIS 561 (1956). Vendee must account for depreciation and the value of the property to vendee while it was in vendee’s possession. Sizemore v. Beeler, 94 Ga. App. 414, 94 S.E.2d 773, 1956 Ga. App. LEXIS 561 (1956). Burden on defendant to file equitable plea where the defendant seeks to recover payments made toward the pur-

chase price. Sizemore v. Beeler, 94 Ga. App. 414, 94 S.E.2d 773, 1956 Ga. App. LEXIS 561 (1956). Equity, once the defendant files a proper plea, will attempt to place the vendor and vendee in status quo by crediting the vendor with the rental value of the property and any damage sustained while in the vendee’s hands, and crediting the vendee with payments made toward the purchase price. Sizemore v. Beeler, 94 Ga. App. 414, 94 S.E.2d 773, 1956 Ga. App. LEXIS 561 (1956). The defendants, in response to a trover action for the recovery of a herd of cattle purchased by defendants and in which title was retained by the vendor, has a right to plead and prove that by reason of a partial failure of consideration due to the fact that certain of the cows were diseased and had to be destroyed, and that by reason of having made part payment on the purchase price stated in the contract, they had paid the full value of the property and were entitled to retain it. Sizemore v. Beeler, 94 Ga. App. 414, 94 S.E.2d 773, 1956 Ga. App. LEXIS 561 (1956). Where the assignee of a purchasemoney retention title contract and notes elects to rescind the contract and bring trover against the vendee upon the latter’s failure to make the instalment payments, the defendant may plead and prove a failure of consideration as to the property purchased, and a partial failure of consideration will constitute a defense pro tanto to the action. Columbia Loan Co. v. Parks, 97 Ga. App. 76, 102 S.E.2d 46, 1958 Ga. App. LEXIS 707 (1958).

RESEARCH REFERENCES Am. Jur. 2d. 18 Am. Jur. 2d, Conversion, § 89. C.J.S. 89 C.J.S., Trover and Conversion, §§ 180, 189. ALR. Indebtedness of plaintiff to defendant or latter’s claim of indebtedness as defense

or mitigation of damages in civil action for conversion or replevin, 100 A.L.R. 1376. Right of conditional buyer to maintain action for conversion and damages recoverable as affected by defendant’s recognition conditional seller’s title or rights, 116 A.L.R. 904.