14 Ga. App. 288 | Ga. Ct. App. | 1914
Moseley sued Butler, Stevens & Company in trover for four bales of cotton, contending that he had sold the cotton for cash, and that title remained in him and could be asserted against Butler, Stevens & Co., who were cotton factors in Savannah. It was undisputed that Butler, Stevens & Company were innocent purchasers of the cotton from one Purvis, to whom it had been sold by the plaintiff. A son of Purvis delivered to Moseley two bank checks covering the agreed price, and one of the cheeks was post-dated twelve days. The son testified, that he called Moseley’s attention to the fact that this cheek, for one half the purchase-
It is true that Moseley says that the sale was for cash, but this is a question of law which must be determined from the facts, and, in our opinion, Moseley’s conclusion as to the character of the transaction was erroneous. The original contract between himself and Purvis was for cash, 'and Moseley had the right to assume that the two checks which were handed him by young Purvis would be paid on demand, but when he discovered, on reaching home, that one of the checks was post-dated, he was confronted with the necessity of doing one of two things, — either surrendering the cheek and reclaiming his cotton upon Purvis’s failure to pay cash, or acquiescing in the terms of the sale as proposed by Purvis. Unquestionably the parol negotiations between Moseley and Purvis contemplated a cash sale, but the effect of the tender of this post-dated check by Purvis was a proposal to purchase a half of the cotton on credit, with an extension of twelve days within which to pay for it. If at the time of tendering this check Purvis had proposed to Moseley to defer payment for twelve days, and Moseley had agreed, the sale would undoubtedly have been a credit sale. What actually happened does not differ substantially from this. When Moseley returned home he discovered that the check had been post-dated. It is true that two or three days afterwards he sought Purvis, and told him that the sale was for cash, and that he did not-intend tó sell his cotton on credit. Moseley then had the right to surrender the cheek and rescind the contract by reclaiming his cotton, but, instead of doing that, he retained the check, upon the statement of Purvis that he might be able to pay it at some time before its maturity. Moseley, therefore, kept the cheek after a distinct statement by Purvis that he could not pay cash, and with this knowledge allowed Purvis to ship the cotton to Butler, Stevens & Company. Indeed, the record shows that Moseley himself had possession of the bills of lading,