McDonald v. Peoples Automobile Loan & Finance Corp. of Athens, Inc.

Felton, Chief Judge,

concurring specially. I concur in the judgment but not for the reasons stated in the opinion of my associates. In my opinion there was no sale of the two automobiles involved by McDonald to Thurmond. He did state that he sold them to Thurmond but that was only his opinion. What he actually did was to deliver them to Thurmond to sell for him as his agent at a price net to him. It is true that bills of sale were delivered to Thurmond with the descriptions of the cars left blank. When the cars were sold by Thurmond, McDonald was to deliver his registration of title certificates. There was no intention that the cars become the property of Thurmond in its own right. My construction of the evidence is that the cars were delivered to Thurmond to be sold on consignment. If, under the law as it stands today, the mere possession of an automobile constitutes indicia of title, I think it should be changed, since too big a loophole is left for thieves. One holding an automobile on consignment should be required to note the fact on the automobile and he should be in possession of the consignor’s title certificate, for those automobiles required by the law to have them, so that lenders could check with the consignee to be sure he had title and was not giving *490stolen cars as security. The proceeds of the loan in this case were applied to a pre-existing debt and the loan company parted with no new consideration. But for the Commercial Code, Code Ann. §§ 109A-9 — 108 and 109A-1 — 201 (44b), the application of the new funds on an old debt, in my opinion, would not constitute new value so as to make the loan company an innocent party for value. The law permitted Thurmond to additionally secure his indebtedness to the appellee with another’s property based on its bare possession of the automobiles plus the bills of sale, which, under the new title law, amounts to nothing, because a thief could seek to cover up his theft by such a maneuver. Lenders and buyers seem to be favored under the Commercial Code, but consignors are not. In the situation we have in this case a consignor also should be protected. Where a lender relies on mere possession as indicia of title, when it could demand possession of a title certificate covering the property involved, it should not be regarded as innocent. I concur in the judgment because, as I understand the law, a consignor must file in accordance with Code Ann. § 109A-9 — 302 and especially § 109A-2 — 326 (3) relating to consigned property where Subsections (a) and (b) are not complied with. So far as I know, Georgia has no law with reference to identification of consigned property by signs placed thereon. See Guardian Discount Co. v. Settles, 114 Ga. App. 418, 422 (151 SE2d 530).