
    23365.
    McEntire v. Naylor.
    Decided October 21, 1933.
   Sutton, J.

1. Under the evidence adduced on the trial of a trover action, the contract on which the plaintiff relied to show title and right of poso session in himself was a mere executory agreement to sell, not passing title to the personalty which was the subject-matter of the trover action; and in such a case, although a part of the purchase-money has been paid down, the sale can not be rendered executed simply by a tender by the vendee of the remainder of the purchase-money, where the vendor, repudiating the contract, declines the tender and refuses to deliver the property. Civil Code (1910), 4125; Dudley v. Isler, 21 Ga. App. 615 (3, 4) (94 S. E. 827) ; Clark v. Wood, 39 Ga. App. 340 (147 S. E. 173). Accordingly, trover would not lie against the vendor, but the plaintiff’s remedy would be an action for damages for breach of the contract. Maddox v. Wagner, 111 Ga. 146 (36 S. E. 609) ; Clark v. Wood, supra.

2. The court properly directed a verdict against the plaintiff, and did not err in overruling the plaintiff’s motion for new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.

B. B. Lambert, for plaintiff. H. A. Allen, for defendant.  