Levy v. American Wholesale Corp.
Levy v. American Wholesale Corporation
Opinion of the Court
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Jenkins, P. J.
1. While it is true that the confirmation of a composition, proposed by a bankrupt to his creditors, followed by a dismissal of the case, has the effect of discharging- him from all ordinary claims provable in bankruptcy (Glover Grocery Co. v. Dorne, 116 Ga. 216 , 42 S. E. 347 ), neither such a proceeding by composition nor an actual discharge in bankruptcy has the effect of divesting a creditor’s title to property owned by him in the hands of the bankrupt. Smith v. Turner, 141 Ga. 313 ( 80 S. E. 993 ); Long v. McIntosh, 129 Ga. 660, 662 ( 59 S. E. 779 , 16 L. R. A. (N. S.) 1043, 12 Ann. Cas. 263); Moon v. Wright, 12 Ga. App. 659 ( 78 S. E. 141 ); Birmingham Fertilizer Co. v. Cox, 10 Ga. App. 699 ( 73 S. E. 1090 ). Accordingly, the special plea, referred to in the statement of facts did not set up a valid ground of defense.
2. “In a trover suit for the recovery of property the title to which the plaintiff holds as security for a debt, the measure of damages, where plaintiff elects to take a money verdict, is either the highest proved value of the property between the date of conversion and the trial, or the value of the property at the date of conversion, with interest or hire thereon, subject, however, to the condition that under neither choice can a recovery be had for more than the amount of the debt for which the property stands as security.” Benton v. Harley, 21 Ga. App. 168 (2) ( 94 S. E. 46 ). In case of a conversion of such collateral, the owner is prima facie entitled to recover its face value as the measure of his actual damages (Citizens Bank of Madison v. Shaw, 132 Ga. 771 (3), 65 S. E. 81 ), but the actual value of the converted property constitutes the true measure, where a different value other than the nominal value is shown. Fisher v. George S. Jones Co., 108 Ga. 490 ( 34 S. E. 172 ). In this case, the court might have seen proper to accept the opinion of the defendant as to value, but it was in no wise bound to do so.
3. The parties are not at isSue as to the fact that the defendant collected $185 from the collateral paper, and included this in certain payments made to plaintiff. If by the time the remittitur from this court is made the judgment of the court below the plaintiff will write off from its judgment the said sum of $185, the judgment of the court below will stand affirmed; otherwise the judgment is reversed. The costs of the writ of error are taxed against the defendant in error.
Judgment affirmed on condition.
Stephens and Bell, JJ., concur.
C. A. Christian, R. D. Smith, for plaintiff in error. Fuhvood & Hargrett, contra.
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