Banks v. Kilday

Dr. E. L. Kilday brought a bail trover action in the Superior Court of Macon County against Dr. Herman Banks for certain dental equipment, in the possession of the latter. From the evidence on the trial of the case it appeared that the plaintiff and defendant had practiced dentistry together, and that the equipment at issue had been purchased from the War Assets Administration by the plaintiff (who had priority for the purchase of such equipment under the ""G. I. Bill"") with money of the defendant, the parties having gone to Louisiana in the defendant's automobile to pick out and purchase the equipment, the defendant paying all expenses of the trip. The plaintiff's testimony as to the agreement between the parties is in part as follows: ""I saw Dr. Banks quite often during the winter and spring of 1947 before I graduated from dental college; I would say I reached an agreement with Dr. Banks about my coming to Montezuma to practice dentistry with him in January or February of 1947; it was agreed that I would come to Montezuma and receive fifty percent of what I grossed at the chair that I was working at; it was agreed also that he would furnish all materials that went into the practice that I would do; it was also agreed that due to the ability of the G.I. to have priority to purchase certain equipment that was made available to these G.I.'s that he would loan me some money to get this equipment, the equipment that I could get or had prospect of getting, and under the circumstances I agreed to come to Montezuma; the fact that wherever I got the money to buy it, because I did not have it, depended necessarily on whether I would go . . . I borrowed the money from Dr. Banks; I was in Atlanta at the time that I actually received the money because we had already made an agreement ahead of time that when the property became available the money would be loaned and I could pay for the equipment."" Bills of sale and receipts for the property made out to the plaintiff were introduced in evidence. The defendant testified that it was understood that he was purchasing the equipment for his office through the plaintiff as his agent, and that it had never been considered a loan of money; that he had never asked for nor received back any part of the purchase price, and the question had not come up until the plaintiff decided to leave the defendant's office and enter business for himself in another town. The jury returned a verdict for the plaintiff in accordance with instructions of the trial court that they should return a verdict ""for the plaintiff"" or ""for the defendant"" in accordance with their decision on the issue of title. The plaintiff had, at the commencement of the case, elected a verdict for the property alone without hire, and the court entered a judgment for the plaintiff to this effect.