
    Mallary Brothers Machinery Company v. Wood.
    Submitted May 8,
    Decided December 23, 1909.
    Trover. Before Judge Martin. Twiggs superior court. October 13, 1908.
    
      E. P. Mallary, for plaintiff.
    
      L. D. Moore, for defendant.
   Lumpkin, J.

1. This ease is substantially controlled by the decision in Wall v. Johnson, 88 Ga. 524, which has not been reviewed or modified; nor was any request made for this court to review or modify it. See also Muse v. Wright, 103 Ga. 783 (30 S. E. 662) ; Grant v. Miller, 107 Ga. 804 (33 S. E. 671); Scarboro v. Goethe, 118 Ga. 543 (45 S. E. 413). (a) There was not such clear evidence of an agreed rescission of the contract of conditional sale of personalty as to authorize the grant of a nonsuit on that ground.

2. Where an action to recover personal property was brought, and bail process issued, and on failure of the defendant to give bond the plaintiff d'id so and took possession of the property and sold a portion of it, this would prevent him, from electing to take a money verdict at the trial, but would not prevent him from proceeding for hire and cost. Mallary v. Moon, 130 Ga. 591, 595 (61 S. E. 401).

3. That the plaintiff in an action of trover had not announced his election of the form of verdict which he desired when the evidence on behalf of the plaintiff closed would furnish no ground for a nonsuit. This is specially true where, upon failure of the defendant to give bond in a bail proceeding in the action of trover, the plaintiff gave a bond, took possession of the property and sold some of it, so that he could not elect to take a money verdict.

Judgment reversed.

All the Justices concur.  