ON MOTION FOR REHEARING. The defendants' first contention in their motion for a rehearing is that the plaintiff reconveyed the automobile to Johnson, and thereby lost all title or claim it had to the automobile, and that this is proved by the plaintiff's application for certificate of title, which is attached to and made a part of the petition, wherein it is stated that on February 19, *Page 801 1947, the date of the transaction between Johnson and the plaintiff, no liens existed on the automobile. This contention is without merit. This statement in the affidavit for certificate of title made by the plaintiff was merely a statement that no liens existed against the automobile, unsatisfied, up to that time; that is to say that, as the plaintiff held it, it was free of all encumbrances. Just beneath this affidavit for certificate of title, and on the very same page of the petition, is Johnson's application or affidavit for certificate of title, executed on February 19, 1947, and it states that he acquired possession of the automobile subject to the plaintiff's legal claims, enumerating the claim. For the plaintiff to say that there are no liens or encumbrances against his title to the automobile at the time he delivered it to Johnson does not by any process of reason with which we are familiar mean that he delivered or conveyed title unencumbered to Johnson. Johnson's affidavit, made on the same day and sworn to before the same person as the plaintiff's, refutes any such contention.
The second contention of the defendants in such motion is that the petition is subject to general demurrer, in that it is fatally defective because it nowhere alleges the value of the automobile at the time of the conversion or at any other time.
"The pleader does not characterize his action. He simply sets forth facts upon which he relies for a recovery; and if these facts are such as in law entitle the plaintiff to recover, it is not necessary that the action should be . . classified by any name." McNorrill v. Daniel, 121 Ga. 78 (48 S.E. 680). If the petition is looked to without regard to the common-law forms of action, it undoubtedly sets forth a cause of action. The plaintiff has set forth his cause of action plainly, fully, and distinctly, and by this test the petition is sufficient; for it shows a right in the plaintiff and a wrong by the defendants, and this is sufficient to authorize a recovery within the limits of the damages alleged. If the petition is looked upon as an action of trover, it still measures up to the test of sufficiency.Phelan v. Vestner, 125 Ga. 825, 826 (54 S.E.2d 697). "Where the title of a plaintiff in a trover suit is held by him as security for purchase-money or other debt, and he elects to take a money verdict, he is entitled to recover either the highest value of the property between *Page 802 the date of the conversion and the date of the trial, or the value of the property at the date of the conversion with interest thereon, subject, however, to the condition that under neither choice can he recover more than the amount of the debt for which the property stands as security." Elder v. Woodruff Hardwarec. Co., 9 Ga. App. 484 (2) (71 S.E. 806). In this case it is alleged that, after a demand for the return of the automobile and a refusal by the defendants to do so, the plaintiff brought this action (it appears that it was filed not later than June, 1947), and "in due course thereafter [after the automobile had been delivered to Johnson by the plaintiff], said automobile was taken possession of by the defendants and resold by said defendants to some one unknown to petitioner but well known to the defendants"; and this is the equivalent of an allegation that the wrongdoers, the defendants, have made it impracticable for the plaintiff to give an opinion as to the value of the automobile at the time of or since the conversion (Sisson v. Roberts, 25 Ga. App. 725 (2), 104 S.E. 910); and see, in this connection, Gordon Co. v. A. C. L. R. Co., 7 Ga. App. 354 (66 S.E. 988). And it is further alleged that on January 18, 1947, the automobile was sold by the defendants to Johnson for $2000, and on February 27, 1947, after the plaintiff had purchased the automobile from Johnson, the plaintiff on February 27, 1947, executed a contract to Johnson in which it reserved title in itself, naming as consideration $1344. These are allegations of special or evidentiary facts from which the inference may be legitimately drawn that the automobile at the time in question was of the value of $1344, the amount of the debt which the plaintiff is seeking to recover under its contract retaining title, or that the automobile was at least of some value at the time of the conversion. Tufts v. Threlkeld, 31 Ga. App. 452 (5) (121 S.E. 120); Western Atlantic Railroad v. Reed, 33 Ga. App. 396,402 (126 S.E. 393). The ad damnum clause claims $1344 plus interest as the damage suffered on account of the conversion, which is precisely what the petition alleges the plaintiff has lost by the conversion of the property by the defendants. We are of the opinion that the petition was sufficient, and we think that this ground of the motion is not meritorious. If there had been a depreciation in the value of the automobile by reason of wrecks, etc., as the defendants *Page 803 conjecture, it would be a matter of proof upon the trial, and the defendants would be at liberty to introduce such evidence as they might have on the subject in defense. Upon consideration, the motion for rehearing is
Denied. Gardner and Townsend, JJ., concur.