Charles S. Martin Distributing Co. v. Haney , 114 Ga. App. 346 ( 1966 )

Frankum, Judge.

1. “Legal title in the plaintiff at the time of the institution of the suit is a sine qua non in an action of trover.” Prater v. Painter, 6 Ga. App. 292, 293 (64 SE 1003). This is so, notwithstanding the fact that the plaintiff may elect to take a money verdict in lieu of specific property. Citizens Bank v. Mullis, 161 Ga. 371 (1) (131 SE 44) and citations. The burden to prove all of the essentials of a cause of action is upon the plaintiff in a trover case just as it is in any other case. McLean v. Hattan, 127 Ga. 579 (56 SE 643).

2. Applying the foregoing principles to the facts in this case, where the plaintiff brought this trover action basing its right to recover certain items of personal property upon title alone, and electing upon the trial in the event it should recover to take a money verdict in lieu of a verdict for the specific property, and where the defendant in his answer denied that he was in possession of any of the property sued for, and where the evidence shows that various items of described personal property were sold to the defendant under a so-called floor plan arrangement by which the plaintiff retained title to each item of property so delivered to the defendant until it was sold by the defendant at retail sale in the usual course of the defendant’s business, and where the plaintiff’s evidence showed that some, if not all, of the items so delivered to the defendant had been sold b3r the defendant at retail in his usual course of business and failed to show the value of specific items so delivered and either still in the possession of the defendant, or which had been sold by the defendant other than at retail and in the usual course of business, such evidence failed to show to which items of personal property the plaintiff still retained title or to furnish any data upon which the jury could arrive at a verdict for the plaintiff in any particular amount, and the trial court, therefore, did not err in granting a nonsuit. See Charles S. Martin Dist. Co. v. Banks, 111 Ga. App. 538 (142 SE2d 309).

Argued June 7, 1966 Decided September 26, 1966. Charles L. Henry, for appellant. Marson G. Dunaway, Jr., for appellee.

Judgment affirmed.

Felton, C. J., and Pannell, J., concur.