Farmers Ginnery & Manufacturing Co. v. Thrasher
87 S.E. 804
Ga.
1916
Check Treatment
Lumpkin, J.

A numbеr of persons brought an equitable action for an accounting and to recover judgments against a warehouse company. They alleged, among other things, that the defendant was bound by contract, and by a local custom of the trade, to fully insure cotton stored with it, and that through its agents and officers it represented that it had done so; that in fact it took out a general policy for much less than the value of the cotton stored; that a loss by fire occurred, and a fund was realized by it from salvage and the insurance which it had, but -the cotton saved was in such condition that it could not be identified. Other persons, claiming to have stored cotton with the warehouse company, were made parties. The case came to this court from a ruling on a demurrer; and the petition generally was upheld. Farmers Ginnery &c. Co. v. Thrasher, 140 Ga. 669 (79 S. E. 474). The case was then referrеd to an auditor, who made a report favorable to the plaintiffs. Exceptions to his report were filed. They were submitted to the judge of the superior court, without a jury. He rendered judgment against the excеptions, and the defendants brought the case to this court by writ of error. Pending the litigation a payment was made to each of the plaintiffs from the fund arising from the insurance which the warehouse company carried, and from the salvage. The amounts so realized, it was conceded by the plaintiffs, should be allowed as credits, and they claimed the value of the cotton lost, less such credits and certain charges.

1. Thеre was evidence tending to show, that, prior to about 1907 or 1908, the warehouse company had been charging thirty cents per bale for storage for thirty days, and had not been insuring cotton ; that they inaugurated a practice of insuring the cotton stored with them; that a charge of fifty cents per bale was made for the first thirty days, which, included charges for storage, warehouse charges, and insurance, and after thirty days an additional charge of twenty-five cents per bale per month was made; and that the de*601fendant caused to be posted in prominent places about the premises, where they could be readily seеn by customers or persons coming to the place, printed posters or notices, signed by it, to the effect that all cotton would be insured against loss by fire, and that a charge of fifty cents a bale would be mаde, which was to cover insurance and other warehouse charges. The auditor found: “I find that the action of the defendant company in representing by posters or notices placed in conspicuous places at and around its warehouse, to the effect that ail cotton stored with it would be insured for its full value against loss by fire, thirty days from such time [as] the cotton entered the warehouse, for the chargе of fifty cents per ‍‌​​​‌‌​‌​​‌‌​‌‌‌‌​​​​‌‌‌​‌‌​‌​​​‌​‌​‌‌​​​‌‌‌​‌‌​‍bale, which charge was to cover insurance and other warehouse charges, constituted a contract between the defendant warehouse company and such of the оriginal plaintiffs and intervenors as had knowledge of the same and acted upon it.” “I further find .that if any of the original plaintiffs or intervenors, having seen and read the notices above referred to, acted upоn the same and stored cotton with the defendant warehouse company, and suffered loss thereby from fire by reason of the failure of the defendant company to insure the cotton for its full value, that such dеfendant company would be liable to such person in damages for the full value of the cotton so destroyed, less legitimate charges.” In this there was no error.

The notices were not mere announcements of a business policy, or offers to secure bids, or even similar to merchants’ advertisements in newspapers of goods which they desire to sell. According to evidence for the plaintiffs, and the finding of the auditor, they amounted to offers to receive cotton on the terms stated; and when such an offer was seen and accepted and cotton was delivered to the defendant on such terms, there was a binding contract.

The mere fact that the notices had remained posted for several' years before the fire made no difference. The offer had not been withdrawn, but was still held out, and there was no change in the charges.

2. The auditor further reported: “I find that a general custom among the warehouses of Ashburn to carry fire insurance upon the cotton of their customers would constitute a binding contract betwеen the defendant warehouse and such of its customers as acted upon it; and if said defendant warehouse failed to carry full insur*602anee, and loss was occasioned thereby, it would be liable to such custоmer for the amount of such damage so sustained.” The evidence authorized the finding that there was such a custom as became binding as a part of the contract; and the finding of law was not ‍‌​​​‌‌​‌​​‌‌​‌‌‌‌​​​​‌‌‌​‌‌​‌​​​‌​‌​‌‌​​​‌‌‌​‌‌​‍erroneous, though it mаy not have stated the rule in the terms employed in the Code. The auditor was dealing with the case before him, not with general principles; and we consider this finding in connection with the case before him and his other findings.

3. Evidence of certain witnesses, as to the existence of a custom of the warehousemen in Ashburn to insure cotton, was introduced. Objection was made on the ground that the existence of such custom was а conclusion to be drawn from the facts; and that it was not competent for witnesses to testify that there was such a custom, but only to facts from which the conclusion could be drawn. If a witness is shown to have knowledgе of a custom, he can state what it is, not as a matter of opinion or law, but as a fact. This is sometimes admissible in construing a contract, and sometimes as showing a custom of such universality as to enter into it. Civil Code (1910), §§ 1 (par. 4), 5793. While a distinction has sometimes been drawn between usage and custom, it is evident that the word “custom,” as used in examining the witnesses in this case, was not employed for the purpose of having the witnesses testify thаt a custom existed which had become binding as law, or to give their conclusions as the effect of the custom or usage inquired about, but for the purpose of ascertaining the fact of its existence. In ParK v. Piedmont &c. Insurance Co., 48 Ga. 601, 607, the form of question suggested in order to prove a general usage or custom in a life-insurance business was, “What is the general or universal usage and custom in the life-insurance business as to the commutation of renewals?” Thus the word “custom” was employed as equivalent to “usage,” as a fact, and not as seeking from the witness an opinion as to the law. It is not essential that a witness must have been a warehouseman in order to have had knowledge on this subject. He may have acquired it by dealing with the warehouses of the city as a patron. The custom it was sought to prove was not one involving scientific or professional skill, such as the methods of treatment by physicians or surgeons, or оf dealing with electrical appliances or the like, but one in regard to which *603any person familiar with, the facts ‍‌​​​‌‌​‌​​‌‌​‌‌‌‌​​​​‌‌‌​‌‌​‌​​​‌​‌​‌‌​​​‌‌‌​‌‌​‍was competent to testify. Griffin v. Rice, 1 Hilt. 184; Berry v. Cooper, 28 Ga. 543 (2). Generally evidence of the custom or practice of a single warehouse is not, without more, admissible or sufficient to establish a custom in the locality. But if the custom of each warehouse in a given locality is shown to be the same, in the aggregate it is the custom of аll. A number of the plaintiffs at least are shown to have known of the custom, and their evidence was admissible. The rulings on the admission of evidence as a whole did not present such error as to require a reversal. -

4. There was evidence that one Bailey was in charge of the warehouse, and received, weighed, and gave receipts for cotton, making the charge of fifty cents. If he was held out to the public аs the agent of the defendant in charge of its warehouse, and authorized to make a certain charge, which in fact included a charge for insurance, his statements dum fervet opus, made to patrons dеpositing cotton, to the effect that it would be insured, were admissible against the company. His agreement while acting in the scope of his authority on this subject (which there was evidence tending to show) would bind the company. Civil Code (1910), §§ 3593, 3595, 3598, 3606; Cable Co. v. Walker, 127 Ga. 65 (56 S. E. 108); Baldwin v. Garrett, 111 Ga. 876 (36 S. E. 966).

The statements of one Jenkins that the cotton was insured were admitted. The only ground for the admission of his statements as admissions or agreements was that he was a director, and one witness referred to him also as secretary of the defendant. A director may by express agreement or by usage become the agent of the company, and his acts may become binding on it. But the mere fact that he is a director gives him no right to bind the company by his acts or sayings. Directors act as a body, not by the statements of an individual director, unless he has received authority to speak for the company. Garmany v. Lawton, 124 Ga. 876 (53 S. E. 669, 110 Am. St. R. 207). The admissiоn of the statements of Jenkins that the cotton was insured was error; but, ‍‌​​​‌‌​‌​​‌‌​‌‌‌‌​​​​‌‌‌​‌‌​‌​​​‌​‌​‌‌​​​‌‌‌​‌‌​‍in view of the other evidence, it was not such error as ought to require a reversal.

5. The warehouse receipts were made out on printеd forms. One of them was as follows:

*604“Farmers’ Ginnery & Mfg. Co. No. 2887.

Marks No. Weight P. Marks Be-Wt. Bemarks

Beceived from B. H. Adkins

Ginning ......$1.58 Bales of Cotton, Marks, Nos. etc., as

Storage .......$ per margin, deliverable to this receipt,

Weighing......$ or its duplicate, by paying customary

Insurance .....$ charges and all advances and indebted-

Beweighing ... .$ ' ness.

Drayage.......$ (Acts of Providence and fire ex-

Bags & ties... .$1.00 cepted.)

“H. A. Bailey, Weigher.”

It was contended that the words, “Acts of Providence and fire excepted,” constituted a limitation upon the liability of the warehouse company, and that a custom could nоt be shown to the contrary. The point is substantially ruled in Hamilton v. Moore, 94 Ga. 707 (19 S. E. 993), where the form of receipt used was somewhat similar to that here involved; and the same principle is recognized in Zorn v. Hannah, 106 Ga. 61 (31 S. E. 797). See also Atwater v. Hannah, 116 Ga. 745 (42 S. E. 1007); Rochelle Gin &c. Co. v. Fisher, 13 Ga. App. 621 (79 S. E. 584). We were asked to review and overrule the decision in the case first cited. It was a unanimous decision of this court when composed of three members, and it would require the concurrence of five ‍‌​​​‌‌​‌​​‌‌​‌‌‌‌​​​​‌‌‌​‌‌​‌​​​‌​‌​‌‌​​​‌‌‌​‌‌​‍members of the court as at present сonstituted to overrule it, even if there were any disposition to do so. Civil Code (1910), § 6207. The requisite number of Justices do not concur in so doing.

6. We have discussed what we consider the more important questions. There arе numerous exceptions. If any of them present minor errors, they show no cause requiring a reversal. The evidence authorized a finding that it was the duty of the defendant to insure the cotton of the plaintiffs to its full value, and authorized the judge, to whom the cause was submitted without a jury, to render judgment against the exceptions to the auditor’s report. If there were any of the plaintiffs who occupied a special or distinctive position, they should have been pointed out in the exceptions, and the reason therefor shown. Upon the whole case, no cause for a reversal is shown.

Judgment affirmed.

All the Justices concur, except Fish, G. J„ absent.