It appears undisputed from the evidence that the seller repossessed the property without the purchaser's consent, and solely for the avowed purpose of preserving and saving the property from loss (it apparently having been exposed by the purchaser to loss), and not for the purpose of exercising any right which the seller may have had under the contract to repossess the property and sell it and apply the proceeds on the unpaid balance due of the purchase-price. There is no contention by the seller that when he took possession of the property the purchaser had defaulted in payment on the purchase-price. Under the seller's own contention he is holding the property for the benefit of the purchaser. The purchaser was entitled to the possession and the use of the property, under the terms of the contract of sale, until the property was repossessed or foreclosed on in some manner provided by the contract or by law. The seller seeks to hold the purchaser for the unpaid balance due on the purchase-price, while at the same time retaining possession of the property. This is contrary to the purchaser's rights under the contract. Under these circumstances, does a duty rest on the purchaser to follow up the property and demand possession thereof from the seller, or does the duty rest on the seller to seek out the purchaser and tender or surrender the property to him? In taking possession the seller prima facie asserted dominion over the property apparently as owner or as one entitled to possession. He did this without the purchaser's knowledge. Manifestly it seems that the duty here rested upon the seller to seek out the purchaser, who had no knowledge of what the seller had done or of the whereabouts of the property, and to tender or surrender the property to the purchaser. In retaining this property, without afterward undertaking to dispose of it by sale as provided in the contract of sale, and without tendering it back to the purchaser, the seller (irrespective *Page 726 of his motive and intention when repossessing the property) held it adversely to the purchaser and in contravention of the purchaser's rights. The seller in so doing asserted dominion over the property as his own; and having done so, his act amounted to a breach of the contract, which the purchaser could treat as a rescission relinquishing the purchaser from any obligation to pay the balance due on the purchase-money.
Moreover, it appears from his testimony that the seller was willing to deliver the property to the purchaser upon the purchaser's paying the balance due on the purchase-price. Construing the seller's testimony mostly strongly against him, the only inference authorized is that he was withholding from the defendant all right, title, or interest in the property until the defendant should pay to the seller the balance due on the purchase-price. This attitude of the seller was not in accordance with the terms of the contract of sale, but on the other hand was in violation of the terms thereof. Under the contract the purchaser was entitled to the possession of the property and the use thereof as long as he complied with the terms of the contract, notwithstanding the entire purchase-price had not been paid. It appears undisputed from the testimony that the contract had been rescinded by the seller, and therefore that the seller had no right to recover of the defendant the unpaid balance due on the purchase-price. Gay v.Carpenter, 35 Ga. App. 768 (134 S.E. 803), where it was held that "A retaking of property by the seller, for the purpose of holding it until the purchaser, who is the maker of a note for it, has paid part of the purchase-money, and a release of the property then to the purchaser, does not constitute a rescission of the contract," is distinguishable. In that case the property had been taken by the seller with the knowledge of the purchaser, and inferably with the purchaser's consent, to be held by the seller until past-due instalments on part of the purchase-price were paid, and after payment of these instalments the property had been redelivered to the purchaser and accepted by him; and at the time of the institution of the suit by the seller against the purchaser, to recover the unpaid balance on the purchase-price, the property was in the possession of the purchaser.
The verdict for the plaintiff was without evidence to support it, and the court erred in overruling the motion for new trial. This applies to both cases. *Page 727