LONDON v. JACOBS

The defendant in error, J. B. Jacobs, hereinafter referred to as the plaintiff, brought this trover action against the plaintiffs in error, Max and Mary London, hereinafter referred to as the defendants, in the Civil Court of Fulton County for the recovery of a certain automobile truck or its value.

Construing the evidence in its most favorable light to support the verdict, the jury was authorized to find facts substantially as follows: that on October 31, 1946, the plaintiff executed a retention-of-title contract conditionally purchasing the truck for the sum of $700, the contract itself reciting $600 as the purchase price, but the testimony showing the latter figure without dispute; the sum of $100 was paid in cash and the remaining $600 was to be paid in 15 monthly payments of $40 each; that at the time of the purchase of the truck the O.P.A. ceiling price thereon was $369 and the same was in force and effect then, but had expired at the time of the trial; that the retention-of-title contract contained a provision as follows: "In the case of default in the payment of any installment, the vendor may, at its option, either with or without legal proceedings, retake possession of said property, in which case the amounts that have been paid up to that time may be retained as rental of said property for the time which I have had it. This remedy, however, is cumulative, and shall not be construed so as depriving the vendor of the right to collect said notes;" that in the month of September, 1947, the truck caught fire and was damaged while being driven on the streets of Atlanta, so that it had to be pulled off the streets; that the plaintiff told Mr. Kelly, his vendor about this, resulting ultimately in the truck being pulled into the junk yard of the defendants, where it was cut up for scrap and Mr. Kelly was paid therefor the sum of $25; that at the time the plaintiff had paid the sum of $380 on the purchase-price of the truck which was $11 more than the O.P.A. ceiling price on the date of the execution of the retention-of-title-contract, but at the time the truck was damaged by the fire the plaintiff had defaulted in his payments and was in arrears two or three payments.

The plaintiff elected to take the value, and the jury returned a verdict for him in the sum of $500.

The defendant filed a motion for a new trial on the general grounds which was later amended by adding three special grounds designated 4, 5, and 6.

The trial court overruled the motion for a new trial as amended, and this judgment is assigned as error.

TOWNSEND, J. (After stating the foregoing facts.)

1. Material to the decision here is the question of whether, at the time of the execution of a retention-of-title contract by which a conditional sale of personal property is effected, and the contract price exceeds that of the O.P.A. ceiling, the title passes to the vendee upon the payment of a sufficient number of installments to equal the maximum price fixed by the O.P.A., or whether the title to the property continues to vest in the vendor until the contract price is paid. This exact question does not appear to have been heretofore passed upon by either of our appellate courts. However, in Scott Furniture Co. v. Maurer, 208 Ark. 604 ( 187 S.W.2d 185), it is held that where in a retention-of-title contract for a refrigerator the vendee had paid more than the ceiling price fixed by the O.P.A., but had not paid all the contract price, he could not be required to make additional payments.

In Long Island Structural Steel Co. v. Schiavone-Bonomo Corp., 53 F. Supp. 505, 506, it is said: "When the amendment reducing the maximum price went into effect, plaintiff was in a dilemma. However, it did have a remedy. By virtue of the O.P.A. regulation, the contract could not be carried out according to its terms. The price at which the goods were to be sold, as at the time of the delivery, was as much of the essence of the contract as any of the other provisions and controlling public policy barred delivery at that price. By act of government there was complete frustration of performance excusing the seller from performance as a matter of law. Matter of Kramer Uchitelle, Inc., 288 N.Y. 467, 43 N.E.2d, 493 [141 A.L.R. 1497]; Sanders v. M. Lowenstein Sons, Inc., 289 N.Y. 702, 45 N.E.2d, 457." This case was affirmed by the Second U.S. Circuit Court of Appeals. See Long Island Structural Steel Co. Inc., v. Schiavone-Bonomo Corp., 142 Fed. 2d, 557.

In Foster Co. v. Bowles, 144 Fed. 2d, 870, 873, it is said: "It is settled that private contracts executed prior to the passage of the Emergency Price Control Act will not be allowed to impede the proper execution of the Administrator's duties. A fortiori where, as in this case, the contracts were executed subsequent to the passage of the act with knowledge that they might conflict with the execution of the Administrator's duties, such contracts must give way to the public interest when the necessity arises. In the case before us the necessity arose to change the regulation in order to bring about effective price control and complainant's contracts must yield to this necessity."

In Huber v. Ruby, 187 Misc. 967 ( 65 N. Y. Supp. 2d, 462), it is held that rent regulations are a part of every lease contract the same as if expressed therein.

In order to give full effect to the O.P.A. ceiling price regulations our courts must hold that where at the time of the execution of a retention-of-title contract by which a conditional sale of personal property is effected, and the contract price exceeds that of the O.P.A. ceiling, the title passes to the vendee upon the payment of a sufficient number of installments to equal the maximum price fixed by the O.P.A., notwithstanding the vendee may then be in arrears according to the terms of the contract to such extent as to entitle the vendor to repossess the property, but for the O.P.A. regulation. Where the contract price exceeds the O.P.A. ceiling price, the latter becomes a part of the contract the same as if expressed therein, and by operation of law is substituted for the excessive contract price.

The effect of this ruling is to hold the general grounds of the motion for a new trial and special grounds 4 and 5 of the amended motion to be without merit.

2. By special ground 6 of the amended motion for a new trial, the defendants contend that the verdict for $500 is excessive as being without evidence to support it. The plaintiff testified that at the time of the conversion of his truck its reasonable market value was $600.

The verdict is supported by the evidence, and the judgment of the trial court overruling the motion for a new trial is without error.

Judgment affirmed. MacIntyre, P.J., and Gardner, J., concur.