ON MOTION FOR REHEARING.
MacIntyre, J.The ruling of this court in its original opinion: was that where an owner of personal property agrees to sell it to another person for cash, and, on delivery of the property to the *879purchaser, accepts cheeks in payment, and thereafter such purchaser, having been placed in possession of the property by virtue of such agreement to sell, sells it for a valuable consideration to a third person who has no notice of the true owner’s title, the owner is thereafter estopped to set up his title as against such third person, although the checks so given, on clue presentation to the drawee bank, are returned as worthless. This principle is not based purely on the fact of possession alone of the property in the seller, but only where the possession of the goods has been delivered to the seller in pursuance of a contract of sale. As was pointed out by Judge Jenkins in Morris v. Walker Co., 29 Ga. App. 476 (supra), this principle is not applicable “where the subsequent sale has been made to one not a bona fide purchaser (Ferguson v. Hogan, 27 Ga. App. 286 [supra]); nor is the rule applicable in eases involving contracts of bailment, agency, or partnership (Clarke v. McNatt, 132 Ga. 610, 616-619, 64 S. E. 795, 26 L. R. A. (N. S.) 585); nor in contracts of consignment amounting merely to a bailment (National Bank v. Goodyear, 90 Ga. 711 (3), 725, 16 S. E. 962); nor in cases of sales by thieves or trespassers unlawfully acquiring possession of the goods (Milltown Lumber Co. v. Carter, 5 Ga. App. 344 (2, d), 63 S. E. 270; 24 R. C. L. 375); nor does it have application in sales of cotton and other products by ‘ planters and commission merchants, on cash sale,’ under section 4126 of the Civil Code (1910) (Flannery v. Harley, 117 Ga. 483, 43 S. E. 765; Ocean Steamship Co. v. Southern Naval Stores Co., 145 Ga. 798 (2), 89 S. E. 838); in all of which cases the title of the vendor may be asserted against a bona fide purchaser, regardless of the conditional-sale statutes.” As we attempted to point out in the original opinion, we were familiar with the principle that generally a seller can convey no greater title than he has himself, as declared in the Code, § 96-111. However, as we there stated, this principle is “only predicable of a simple transfer from one person to another where no other ■ element intervenes,” and where the true owner delivers possession of the property involved to another under an agreement to sell, and such person, in possession of the property by virtue of the agreement to sell, sells the property to a bona fide purchaser, under the Code, §§ 96-207, 37-113, the element of estoppel intervenes and prevents such true owner from setting up his title as against such *880bona fide purchaser. We did not overlook the case of Harris Loan Co. v. Elliott &c. Co., 110 Ga. 302 (supra), as we took occasion to cite this case in support of our position. There the delivery of the property was not made to the seller under an agreement to sell, but was delivered to him “as a sample in making sales of like articles,” which the Supreme Court said was an act not “calculated to mislead others in regard to the ownership of the property.” Neither did we overlook the principle that checks and drafts are not payment until themselves paid. In a case of this character, as between the original parties this principle is applicable, but is not in conflict with the holding we have made as regards a bona fide purchaser of the property.
Counsel further contends that because the invoice to the automobile from the Capital Automobile Company to Mrs. Cowan was marked “Paid by two checks,” which invoice was delivered to Ward on his purchase of the car, he was thereby put on notice of the law that checks are not payment until themselves paid, and that it was his duty to ascertain whether the checks had been paid before he purchased the car. . On the contrary, we have been inclined to hold that the entry of the Capital Automobile Company on the invoice of the words “Paid by two cheeks” was conclusive evidence, where third parties were involved, that the checks were accepted as payment. However, aside from this, Ward, the purchaser, had a right to rely on the fact that if the Capital Automobile Company had intended to retain title to the car for any length' of time and had not intended for Mrs. Cowan to treat the car as her own, it would have either (1) executed a retention-of-title contract as provided by law, or (2) would not have delivered possession of the ear under the contract of sale until the purchase-price was paid. We remain of the opinion that our original holding is correct.
Rehearing denied.
Guerry, J., concurs. Broyles, C. J., dissents.