32 Ga. App. 288 | Ga. Ct. App. | 1924
The amended action in this case was a suit upon a note by “T. R. Bennett, superintendent of banks, for the use of the Bank of Eatonton, for the use of the Farmers Bank of Palmetto,” against Tucker and Pennington. The defendants pleaded a conversion by the Bank of Eatonton of certain cotton which they had pledged with it as security for the debt, and prayed to recoup for its highest proved value between the date of the conversion and the trial. The case was submitted to the judge for determination without a jury, upon an agreed statement of facts. It is undisputed that the cotton was sold by the bank without a compliance with section 3530 "of the Civil Code, providing that “The pawnee may sell the property received in pledge after the debt becomes due and remains unpaid; but he must always give notice for thirty days to the pawner of his intention to sell, and the sale must be in public, fairly conducted, and to the highest bidder, unless otherwise provided by contract.” It does not appear that there was any special contract between the defendants and the bank.
The sole question between the parties in the court below was whether the measure of the defendants’ recoupment was the actual value of the property at the time of the conversion, or the highest proved value between the date of the conversion and the trial. The judge decided this question in favor of the defendants, and, after allowing a credit for the highest value shown in the agreed statement of facts, rendered judgment against Tucker for the balance
Inasmuch as it has been insisted by some of the counsel in this case and in two other cases before us at the same time, wherein the briefs discussed the same question, that there is confusion, if not conflict, in the decisions relating thereto, we have given more than ordinary' thought and study to its solution. See Hall v. Vann, 32 Ga. App. 281 (123 S. E. 172), and Vann v. Kimbrel, 32 Ga. App. 275 (123 S. E. 168).
The measure of damages for the conversion of property will vary according to the remedy which the injured party adopts. Milltown Lumber Co. v. Carter, 5 Ga. App. 344 (2) (63 S. E. 270). In each of those cases in which the aggrieved party has been allowed to recover the highest proved value between the date of the conversion and the trial the action was either in tort (trover being an action ex delicto, — Southern Railway Co. v. Born Steel Range Co., 122 Ga. 658 (2) 50 S. E. 488), or the claim, if ex contractu, was based upon the breach of a special contract. In the latter case he may recover such damages as he may have sustained, even up to the highest proved value between the conversion’ and the trial, depending upon the particular nature of the agreement. Bedell v. Bass, 42 Ga. 271 (3); Wood v. Jones, 10 Ga. App. 735 (1) (73 S. E. 1099); Park v. Swann, 20 Ga. App. 39 (3) (92 S. E. 398); Campbell v. Redwine, 22 Ga. App. 455 (1) (96 S. E. 347); Roberts v. Bank of LaGrange, 25 Ga. App. 343 (2) (103 S. E. 176); Planters Warehouse Co. v. Hardin, 30 Ga. App. 459 (3) (118 S. E. 441). If there is a special contract, “then of course the parties would be bound by-its terms.” Whigham v. Fountain, 132 Ga. 277 (1), 279; Pilcher v. Smith, 31 Ga. App. 606 (121 S. E. 701).
Where one who is sued upon a debt which is secured by a pledge pleads a conversion of the security, the cross-action which he makes, unless in equity and based upon special grounds, must of necessity be ex contractu. “Tort cannot be set off against contract.” McKleroy v. Sewell, 73 Ga. 657 (1); McLendon v. Finch, 2 Ga. App. 421 (2 b) (58 S. E. 690). In such a ease, unless he pleads some special contract entitling him to a higher measure of damages, he
It cannot be said that the parties in making the contract contemplated that either would, instead of complying therewith, take advantage of it to commit a tort, as to which the measure of damages might be higher. “A very definite difference is generally recognized between consequential damages which may be recovered for the breach of a contract and similar damages recoverable for a tort.” Southwestern R. Co. v. Vellines, 14 Ga. App. 674 (2), 683 (82 S. E. 166); City & Suburban Railway v. Brauss, 70 Ga. 368 (1) (2); State Mutual Annuity & Life Asso. v. Baldwin, 116 Ga. 855 (2) (3) (43 S. E. 262); Carr v. Southern Railway Co., 12 Ga. App. 830 (1) (79 S. E. 41); Civil Code (1910), §§ 5929, 5930.
The pledgor in such a case is not obliged to await the action of the pledgee and then adopt the remedy of recoupment. He may take the initiative, pay the debt, and sue the pledgee in trover.
We see no reason, however, why if the pledgor does so take the initiative and bring a trover action, he might not as in other cases of trover recover the highest proved value between the conversion and the trial, less any amount of his debt remaining unpaid. If he is entitled to bring trover, we think he is entitled also to all the benefits of that character of action. Civil Code (1910), §§ 4514, 5929, 5930. This was practically held by this court in Bank of LaGrange v. Guinn, 26 Ga. App. 411 (1) (106 S. E. 308). See also Tuller v. Carter, 59 Ga. 395 (1) (2); O’Neill Mfg. Co. v. Woodley, 118 Ga. 114 (1) (44 S. E. 980); Bank of Blakely v. Cobb, 5 Ga. App. 289 (63 S. E. 24); Smith v. Duke, 6 Ga. App. 75 (2) (64 S. E. 292); Dunn v. Young, 22 Ga. App. 17 (95 S. E. 374).
Whether, if the pledgor takes no action until after he is sued by the pledgee, it will then be too late for him to file an independent suit in trover for the conversion, clearly is not now a question for decision, but the writer takes occasion to say that in his opinion it would not be. If he should accept the conversion as a breach of the obligation implied in the pledge, viewing the pledge contract as
Returning to the subject of the measure of damage which the pledgor may recoup, if he adopts that remedy, we may note by analogy, that even where property is converted independently of a pledge, and is sold, and the owner seeks redress in an action in form ex contractu, he can only recover of the wrongdoer its value at the time of the conversion, as upon an implied contract, or the
It would seem that in a case like the present, where the defendants’ damage is from the breach of an implied contract, the jury might augment the ascertained damages by the addition of legal interest from the breach till the recovery. “In all cases where an amount ascertained would be the damages at the time of the breach, it may be increased by the addition of legal interest from that time till the recovery.” Civil Code (1910), § 4396. “In an action upon breach of contract, where the damages are not liquidated, interest is not recoverable as such; but the jury in their discretion may increase the immediate amount of damages found, by an allowance of interest.” Tifton &c. Ry. Co. v. Butler, 4 Ga. App. 191 (1) (60 S. E. 1087). See also Chatham Ice Cream Co. v. Sakakeeny, 29 Ga. App. 768 (3) (116 S. E. 558); Central R. Co. v. Atlantic & Gulf R. Co., 50 Ga. 444 (3).
The learned counsel for the defendant in error have contended earnestly that the decisions' of the Supreme Court in Waring v. Gaskill, 95 Ga. 731 (2) (22 S. E. 659), and Harrell v. Citizens Banking Co., 111 Ga. 846 (1) (2) (36 S. E. 460), do not correctly state the measure of damages that may be recouped in a case of this sort, and request in substance that, unless these cases are found to be distinguishable from the one at bar, a question be certified to the Supreme Court in order that they'may be reviewed. After a most thorough examination of many cases bearing upon the question we do not doubt the soundness of these decisions, and deemed it proper to decline the suggestion to certify. For the reasons we have given, we are content with the rule which they state.
The able judge who tried the case below rendered an opinion in connection with his judgment. In each of the eases upon which
We do not think there is anything said in Holmes v. Langston, 110 Ga. 861 (2) (36 S. E. 251), contrary to the views herein expressed.
Judgment reversed..