C. I. T. Corp. v. Smith

Felton, J.,

dissenting. A plaintiff can never be entitled to recover in a trover suit in the absence of proof of a conversion or something equivalent thereto. The Code, § 107-101, declares: “In actions to recover the possession of chattels, it shall not be necessary to prove any conversion of the property where the defendant is in possession when the action is brought.” If this section applies to trover suits, it has never been construed to mean literally what it says. It is construed to mean that proof of conversion may be dispensed with in eases where the defendant is in possession claiming the property as his own, in which event proof of conversion, as such, is unnecessary, because the claim of the defendant itself amounts to a conversion. The violation of the insecurity clause in the contract in this case does not constitute a conversion. It simply accelerates the maturity of the contract, and gives the holder whatever right he would have had if the contract matured in due course. We should therefore treat the case as if the contract had so matured. Under a retention-of-title contract the buyer has the right of possession of the property. The seller, or transferee, has the title. The seller is not entitled to possession unless there has been a conversion. There was no evidence of conversion in this case. There was no demand and refusal, or anything else amounting to a conversion, and under the authority of Barbour v. Day Co., 37 Ga. App. 267 (139 S. E. 909) a nonsuit was demanded.