1. There was a jury issue as to what the value of the property sued for in trover was at the time of the conversion.
2. There was a jury issue whether one through whom the defendant in this trover action obtained possession of one of the mules sued for obtained possession of it under a retention-of-title contract to the plaintiff.
3. There was a jury issue as to whether the mules sued for were sold by an unrecorded retention-of-title contract to one through whom the plaintiff obtained them and his wife, or whether they were sold only to the wife of such person.
4. The court erred in directing the verdict for the plaintiff in the trover action, and in overruling the motion for new trial. DECIDED SEPTEMBER 25, 1943. R. S. West instituted an action in trover against Mrs. E. T. Nottingham, to recover one black horse-mule about nine years old and one gray mare-mule about nine years old, being the mules sold at sheriff's sale in Crawford County in November, 1938, as the property of Arthur Preston and bought by Mrs. E. T. Nottingham, which were alleged to be worth $400. The yearly value of the mules was alleged to be $80. The defendant answered, denying that the mules were worth $400, and alleging a value of $300. She further alleged, that on January 25, 1937, Arthur Preston, then a resident of Crawford County, executed and delivered to Macon Production Credit Association, of Bibb County, a bill of sale to secure debt, conveying the two mules sued for; that the instrument was recorded on March 5, 1937; that the Macon Production Credit Association transferred said bill of sale to the defendant for a consideration of $160.36; that subsequently the defendant foreclosed *Page 877 the bill of sale in the superior court of Crawford County, and the two mules were brought at sheriff's sale by the defendant for $121; and that at the time of making the advances and accepting the bill of sale to secure debt the Macon Production Credit Association was without notice or knowledge of any lien or claim of the plaintiff in or to either of the mules.
R. S. West testified, that he sold Arthur Preston the mules in controversy and took his note therefore retaining title, dated January 1, 1938, and recorded January 13, 1938, in Crawford County, the note being for $580; that the note had not been paid, not had any part of it; that the rental value of the mules was $80 per year; that before January 1, 1938, Arthur Preston did not own the mules and had no interest in them, but in 1934 he sold the mules to Effie Preston; that Arthur Preston was not present at the time of the sale and had nothing to do with the purchase of the mules; that Effie gave him a "retain-title" note on the mules when she bought them in 1934; that Arthur later signed the note as security only; that Effie Preston could not pay for the mules, and he took them back; that then Arthur Preston came to him and told him he was farming with Mrs. Nottingham, and wanted to buy some mules; that he sold Arthur Preston the same two mules and took a retention-of-title note for them; that there is due on the two mules $365 with interest from the date of the note at eight per cent; that Mr. Nottingham came to Butler, told him that Arthur Preston had rented a farm from his wife, and they wanted to get the debt to him for the mules straight; that he showed Nottingham the books and that Effie Preston owed him on the mules; that he never sold Arthur Preston a mule in 1932; and that he did not tell Henry Adams to deliver a gray mule or any other mule to Arthur Preston.
Norman Adams testified for the defendant, that in the spring of 1932 he was at his father's (Henry Adams') house in Taylor County, which was near where Arthur and Effie Preston lived, when a truck load of mules stopped; that Arthur Preston then and there told Henry Adams that he would give him $5 if he would help him pick out a mule; that Henry Adams did help select a mule from the truck load, and selected a gray mare-mule which was taken off the truck; that later that afternoon or night R. S. West came to Henry Adams's place, and told Henry Adams to deliver to Arthur Preston the gray mare-mule he had selected; and that he *Page 878 had recently seen this mule, which was one of the two involved in this case.
Ed M. Allen testified for the defendant, that in 1934 and 1935 he was inspector for the Thomaston Production Credit Association, and as such he inspected the mules involved in this case, which were in Arthur Preston's possession; that the witness had had considerable experience in inspecting and judging mules, and in his opinion the gray mare-mule was worth $165 in 1934 and the black horse-mule was worth $85, as the black mule had a lame or deformed right front foot; that each mule was worth less at that time than in 1934; and that he saw the mules a day or so before this trial.
E. T. Nottingham testified for the defendant, that he is her husband; that Arthur Preston lived on Mrs. Nottingham's place in Crawford County in 1936, 1937, and 1938; that the witness went with Arthur Preston to Butler to see Mr. West on two or three occasions in 1935 and 1936, when he paid in all $165 on retention-of-title note covering these two mules, which note, dated October 26, 1934, was signed by Effie Preston and Arthur Preston in favor of R. S. West; that witness saw the two mules in the years mentioned, in the exclusive possession of Arthur Preston; that he never saw Effie Preston in possession or exercising any acts of control of the mules; that his wife paid off the note executed by Arthur Preston to Macon Production Credit Association, dated January 25, 1937, by paying the balance of $160 in November, 1937; that this note was transferred to his wife; and that she foreclosed it and bought in the mules.
B. T. Ware testified for the defendant, that he was the clerk of the superior court of Crawford County in 1936; that in 1937, as a favor to Arthur Preston, he filled out an application to the Macon Production Credit Association for a loan of $350; that he examined the records in his office and found only two liens against the mules here involved, a mortgage note on the gray mare-mule and black horse-mule in favor of Colquitt Mule Company, which had been transferred to Mr. and Mrs. E. T. Nottingham, and a mortgage note on the two mules in favor of Mrs. Nottingham, both signed by Arthur Preston.
W. H. Watson testified for the defendant, that he was secretary and treasurer of the Macon Production Credit Association in 1936 and 1937; and that at the time of making the loan to Arthur Preston *Page 879 neither the witness nor the association knew of any indebtedness owed by Arthur Preston or his wife to R. S. West.
Documentary evidence introduced by the plaintiff was the retention-of-title note from Arthur Preston to R. S. West, for the purchase-price of one black horse-mule eight years old, one dark bay mare-mule four years old, one gray mare-mule eight years old, recorded January 13, 1938, in book 54, page 429, of Crawford superior court.
Documentary evidence introduced by the defendant was: Certified copy of foreclosure proceeding, Mrs. Nottingham v. Arthur Preston; certified copy of bill of sale to secure debt from Arthur Preston to Thomaston Production Credit Association, conveying, among other things, one iron gray mare-mule and one black horse-mule, dated April 6, 1934; certified copy of bill of sale from Arthur Preston to Thomaston Production Credit Association, conveying the same property; one promissory note dated October 26, 1934, for $559.97, reading in part: "By the 1 day January next we promise to pay to R. S. West. . . Witnessour hands and seal." (Italics indicate blank spaces which were filled by pen and ink.) Also "sell and convey to said R. S. West the following described property, which we [written in by pen and ink] own absolutely," describing one black horse-mule five years old, one gray mare-mule seven years old named Rhody, one blue mare-mule, smooth mouth, named Emma, one dark day mare-mule, smooth mouth, named Kate. Credits of $260 principal and $108.80 interest entered on back. No evidence appears as to recording the instrument. Return of sale to defendant by the sheriff. The brief of evidence including the documentary evidence was agreed on by counsel for the parties, and approved by the court. The court directed a verdict for the plaintiff (money verdict having been elected), of $365 principal, and $104.47 interest to date of trial. Mrs. Nottingham excepted to the overruling of her motion for a new trial. The motion for new trial states that the court directed a verdict for the plaintiff on the theory that even though the duly-recorded senior lien or bill of sale, dated January 25, 1937, from Arthur Preston to Macon Production Credit Association, was superior to the retention-of-title *Page 880 contract from Arthur Preston to the plaintiff, Mrs. E. T. Nottingham had actual knowledge of the plaintiff's 1934 contract before the transfer to her of the bill of sale from the Macon Production Credit Association, and therefore she got no title through her foreclosure. Whether the direction was proper for the reason given is immaterial if the verdict was otherwise correct. However, we do not think that the verdict was demanded under any theory.
1. The evidence did not demand a finding of the value of the mules, as directed by the court. Incidentally, the plaintiff's note was an entire contract for the sale of several mules, and he could not determine that a certain sum was owed to him for a part of the property. There was evidence from which the jury could have found a value different from the one fixed by the court. Testimony as to market value is opinion evidence, and does not have to be accepted exactly as testified to, even where there is no conflict. There was evidence that the mules were worth $250 in 1934 and less at the time the defendant obtained them. There was also evidence of what the defendant paid for them at the sheriff's sale.
2. Another jury issue was whether Arthur Preston obtained possession of one of the mules in 1932, and whether it was subject to the plaintiff's retention-of-title notes.
3. Another jury issue was whether Effie Preston bought the mules in 1934, or whether both she and her husband, Arthur Preston, bought or agreed to buy them. If Effie alone bought them, the bills of sale given by Arthur Preston would not take precedence over the plaintiff's retention-of-title contract dated in 1934, or the one dated in 1938, even though unrecorded.Whittington v. Wright, 9 Ga. 23 (2); Singer Sewing MachineCo. v. Wardlaw, 29 Ga. App. 626 (116 S.E. 207); Chafin v.Cox, 39 Ga. App. 301 (147 S.E. 154); Darby v. Parrish,42 Ga. App. 492 (156 S.E. 462); Guthrie v. Hendley,56 Ga. App. 438 (193 S.E. 80). But if the mules were sold in 1934 to Effie and Arthur Preston, and the plaintiff failed to record his retention-of-title note, and the Macon Production Credit Association took a bill of sale to secure debt for value and without notice, Mrs. Nottingham would take the place of the credit association, even if she had notice through her husband as agent. Josey v. George, 39 Ga. App. 120 (146 S.E. 506);Houston v. Lundy, 45 Ga. App. 122 (163 S.E. 328). Counsel for Mr. West contend that the brief of evidence does not show that the *Page 881 1934 bill of sale was not recorded. We assume, from the fact that the plaintiff's retention-of-title contract is shown by the brief to have been recorded, that the 1934 note was briefed in material respects, and that the absence of information as to recording means that it was not recorded, or at least that the information was not on the note, which would mean, prima facie, that it was not recorded. It is not clear from the evidence when R. S. West contends he took the mules back from Effie Preston, or whether he surrendered the 1934 note to her or to Arthur Preston at such time, or whether Mr. Nottingham obtained the note by paying a balance due on it. This court will not at this time undertake to determine finally all the issues on the evidence before it. At another trial there may be brought out additional facts which will clarify several most troublesome questions. For instance, one witness swore that Arthur Preston had possession of the mules in question in April, 1934, before West, as he contends, sold them to Effie Preston in October, 1934. All questions are left open for determination.
4. It was error to direct the verdict, and to overrule the motion for a new trial.
Judgment reversed. Stephens, P. J., and Sutton, J., concur.