10 Ga. App. 311 | Ga. Ct. App. | 1912
This case has been before this court previously. See 7 Ga. App. 354 (66 S. E. 988). The only point there involved (as to whether nonsuit was proper because the plaintiff had not shown the value of the property in dispute) cuts no figure in the present record. The case is in trover. The plaintiffs, Gordon & Company, are cotton factors at Savannah. Giddens was a customer of theirs at Kirkland, Georgia. On January 18, 1908, they had certain cotton of Giddens’s on which they had made advances to an amount probably exceeding the value of the cotton. On that date, Giddens himself being absent from his place of business, a brother of his was in charge. A man named Stone brought in a bale of cotton which the brother bought from him for Giddens, telling Stone that Giddens would hand him the money for it on his Teturn to the store on the next day. This brother caused the cotton to be placed in the custody of the defendant, the Atlantic Coast Line Eailroad Company, and obtained a bill of lading for it in the name of Gordon & Company, as consignees. When Giddens returned to the store and Stone requested his money, Giddens refused to pay the price his. brother had named, and he and Stone re-. seinded the trade and so notified the agent of the railroad company, who, at their instance, issued another bill of lading, in favor of Stone as consignor, and of Butler, Stevens & Company, of Savan
1. If Stone was the true owner of the cotton and made a cash sale of it to Giddens or his brother, and the cash was not paid him, no title vpassed out of him to Giddens, and none from Giddens to the plaintiffs; and in that event the plaintiffs could not recover. In this State the title to cotton and certain other agricultural products sold on cash sale does not pass by delivery, until the cash is in fact paid. Civil Code (1910), § 4126. The fact that Stone agreed to await the return of Giddens on the next day after he delivered the cotton to Giddens’s brother before receiving the cash in hand did not make it a credit sale, if a cash sale was intended. McCall v. Hunter, 8 Ga. App. 612 (70 S. E. 59) ; Flannery v. Harley, 117 Ga. 483 (43 S. E. 765).
2. The plaintiffs claim that there was evidence that Giddens, in shipping the cotton to Gordon & Company, was acting for Stone as concealed principal, and relies upon the doctrine that if the concealed principal sues on a contract made by his agent, the defendant
3. But after all, there is one absolute and controlling reason why the verdict can not stand. Take the claims of Gordon & Company at their highest, their only right to this cotton is to hold it for the protection of their factor’s lien, for some $35. If we could concede their lien and their right to the possession of the cotton as security therefor, still it must be remembered that they are not suing a stranger to the title. The railroad company, in committing the alleged conversion, was acting on behalf of the person holding the general title to the property, and, for the purposes of this suit, stands (to speak metaphorically) in that person’s shoes. It is undoubtedly true that one having a right of possession may sue a stranger or mere wrong-doer in trover, and recover the full value of .the property, though his right of possession rests on only a qualified title. In such case the money recovered is held by the plaintiff for the benefit of himself and all others in community of possession or title with him, as their respective interests may appear. Compare Kaufman v. Seaboard Air-Line Railway, ante, 248 (73 S. E. 592). If the defendant in the trover suit has an interest in the property, so that in the event of a recovery the plaintiff would, under the rule just mentioned, hold any money recovered wholly or partly for his (the defendant’s) benefit, the rights of the
A fair application of this rule is found in those cases where property is sold on conditional sale, and, upon default on the purchaser’s part, the seller brings' trover. In such cases it has been uniformly held that the plaintiff’s recovery can never exceed the amount of his debt. See Elder v. Woodruff Hdwe. Co., 9 Ga. App. 484 (71 S. E. 806), and cit. Whenever, in a trover case, the proof shows .that the interest of the plaintiff is less than absolute ownership, and the defendant is the owner of the general property, the measure of damages will be the value of the plaintiff’s interest therein, whatever that may be. Holmes v. Langston, 110 Ga. 861, 867 (36 S. E. 251), (a case between pledgor and pledgee). “A creditor’s recover}»' from his debtor in an action of trover for converting collaterals can not exceed the amount of the debt with legal interest.” Bell v. Ober, 96 Ga. 214 (23 S. E. 7). See, generally, on the subject, Hays v. Jordan, 85 Ga. 741 (11 S. E. 833, 9 L. R. A. 373). In the case at bar, if the railroad company committed any conversion as against the plaintiffs, it did so under instructions from both Giddens and Stone, and, thus having become their agents in the matter, is entitled to justify and defend under whatever rights they would have been entitled to set up if the plaintiffs’ action were proceeding against them or either of them, instead of proceeding as it does against the carrier. Therefore, in ■ no event should the plaintiffs’ recovery exceed the amount of their debt. Judgment reversed.