175 Ga. 855 | Ga. | 1932
American Agricultural Chemical Company brought a petition for mandamus against Cecil E. Carroll doing business under the name and style of Dublin Bonded Warehouse, alleging that the defendant conducts a public warehouse for the receipt and storage of baled cotton; that on the receipt of the cotton he executes a bonded-warehouse receipt to the owner of the cotton, which receipt is “semi-negotiable;” that in the conduct of his business he issues receipts for the cotton stored, and keeps books as required by law, in which he enters an account of all of Ms transactions -relating to his business as a- warehouseman, and it is required by law of him that this book be open for inspection to any person actually interested in the property to which such entries relate; that petitioner is actually interested in the property to which such entries relate, in that petitioner sold to E. E. Jones, of Wheeler County, Georgia, certain fertilizers on April 13, 1931, for the sum of $808.14, and received from Jones a bill of sale to his crop of cotton of 180 acres on certain described land; and on the same date sold to O. H. Couey fertilizers in the sum of $217.13, receiving from him a bill of sale covering 65 acres of cotton on described land, these bills of sale being to secure the aforesaid debts. Certain amounts of this cotton have been stored in defendant’s warehouse; and though it is the property of petitioner and said debts have not been paid, petitioner is unable to ascertain the amounts of such property and the warehouse-receipt numbers, which it is interested in obtaining in order to protect its rights. Petitioner likewise has other bills of sale of cotton stored in the same warehouse and is interested in ascertain
The defendant filed a demurrer on the ground that the petition set out no cause of action. The demurrer was overruled, and the defendant excepted.
Under the Civil Code (1910), § 5441, mandamus does not lie as a private remedy between individuals to enforce private rights. By § 5442 a private person is authorized to bring mandamus proceedings to enforce the performance of a public duty by a corporation, as to which the private person has a special interest. It does not appear in the instant case that the warehouse in question is a corporation. Mandamus is an available remedy where there is provided no other adequate relief to compel inferior or subordinate tribunals, magistrates, and all others exercising public authority to perform their duty; but such remedy can not be maintained against a private person. State v. Powers, 14 Ga. 388. As a general rule, mandamus will not lie to enforce purely private contract rights, and will not lie against an individual unless some obligation in the nature of a public or quasi public duty is imposed. 18 R. C. L. 142, § 59. While the Civil Code, § 5442, provides that a private person has the right to proceed against a corporation to enforce a public duty, there is no authority given in this State, either by statute or decision, so far as we are aware, which gives a private person the right to proceed by mandamus against a private individual for the enforcement of a private right or duty.
Nor is mandamus an available remedy where another remedy-exists. Bearden v. Daves, 139 Ga. 635 (2) (77 S. E. 871); Hall v. Martin, 136 Ga. 549 (71 S. E. 803). In order for mandamus to be an available remedy, two things must appear: first, a duty imposed on the defendant to do the thing he is required to do; and second, pecuniary loss to the plaintiff, for which compensation can not be made in damages. See Atlantic Ice & Goal Corporation v. Decatur, 154 Ga. 882 (115 S. E. 912). In the instant case an adequate remedy exists under the Civil Code of 1910, three sections of which provide, respectively: “Every person or corporation desiring to become a bonded public warehouseman, under the authority
Judgment reversed.
