13 Ga. App. 636 | Ga. Ct. App. | 1913
This case is here on exceptions to a judgment sustaining a general demurrer and dismissing the petition. The petition alleged, substantially, that the defendant was engaged in the business of common carrier and warehouseman; that the Southern Soda-Water Company was the owner of described personal property, of the value of $400, and employed the defendant
The trial judge treated the action as one sounding in tort, and the right of action as non-assignable; and the sole question for the determination of this court is whether the action was one ex delicto or one ex contractu. Section 3655 of the Civil Code provides that “A right of action is not assignable if it does not involve, directly or indirectly, a right of property; hence a right of action for personal torts or for injuries arising from fraud to the assignor can not be assigned.” But section 3653 of the code provides that “all ehoses in action arising under contract may be assigned so as to vest the title in the assignee.” Construing these two sections together, it is clear that any chose in action which arises from contract, or involves, “directly or indirectly, a right of property” may be assigned. These two sections of the code distinguish damages to property and damages to person, and under them a right of action for damage to the person can not be assigned, and a right of action for damage to property can be assigned. The petition in the present case does not claim any damages arising from a personal tort, or “from injuries arising from fraud to the assignor.” The damages sought to be recovered arose from a breach of the contract of carriage or storage which the soda-water company had made with the defendant company. The damages involved a right of property,— a right to recover for any damage to the property while in the possession of the defendant, arising from its failure to exercise, as a
Besides the view above expressed, we think the suit is maintainable under the ruling in Askew v. Southern Railway Co., 1 Ga. App. 79 (58 S. E. 342). In that case it was held, that “the transferee of a bill of lading may maintain an action ex contractu against the carrier for failure to deliver to him all or any portion of the goods specified in the bill of lading; and this is true whether the loss of the goods or the shortage occurred before or after he acquired title to the bill of lading.” Askew & Company, the plaintiffs in that case, ordered from Horne & Goans, of Chattanooga,. Tenn., a car-load of corn. Horne & Goans shipped the corn via the Southern Bailway from Chattanooga, consigned to themselves at Newnan, Ga., “order notify Askew & Co.,” and sent through bank a draft on Askew & Company with bill of lading attached. After the arrival of the corn at Newnan, Askew & Company paid the draft and received the duly endorsed bill of lading, and the car of corn was delivered to them, but it was found that 22,306 pounds of corn had been lost in transit. Askew & Company sued for the value of the lost corn, and the trial court dismissed the petition, on the ground that it set forth no cause of action, it being contended that, the corn having become lost before the plaintiff became owner thereof by securing the bill of lading, the right of action was in
If we entertained any doubt as to the character of the petition— whether it was one arising ex delicto or ex contractu — it would be our duty to accept that construction which would sustain the suit. Wright v. Sou. Ry. Co., 7 Ga. App. 545 (67 S. E. 272); Southern Express Co. v. Pope, 5 Ga. App. 690 (2), 696 (63 S. E. 809). We are clear that the allegations of the petition plainly show that the action was one for the recovery of damages arising as the result of the breach of a contract, that it related to damage to property rights, and involved no element of a personal tort, and that the learned judge erred in sustaining the demurrer and dismissing the petition. Judgment reversed.