117 Ga. 483 | Ga. | 1903
An action of trover was instituted by Harley against tbe plaintiffs in error, the purpose of which was to recover possession of twenty-five bales of sea-island cottgji to which he claimed title. He prevailed in the suit, a money verdict for $930.73 being returned in his favor. Dissatisfied with this outcome of the case, the defendants made a motion for a new trial, based on numerous grounds; but it was overruled, and they excepted. This motion presented the questions of law with which we will undertake to deal at proper length in the discussion which follows.
In the case of Flanders v. Maynard, 58 Ga. 57, this court undertook to construe the act last mentioned, and laid down the following rule for determining whether or not a sale of cotton was made with reference to its provisions: “ When the parties consider the sale complete in respect to both price and delivery, the title passes. When, on the other hand, they intend that final payment and final delivery shall yet take place and be concurrent acts, the title does not pass.” And it was accordingly held that “ Delivery, actual or constructive, under an express stipulation for retaining title till the price shall be paid, is but a conditional sale; and it preserves that character, in respect even to a subsequent bona fide purchaser. . ; Where the delivery is of cotton ” purchased “‘ on cash sale, ’ no express stipulation for the retention of title is necessary,” since, by virtue of the statute in such cases made and provided, “ the title of the seller remains undivested until payment is received in full.” In pronouncing the judgment of the court, Bleckley, J., said (pp. 63-4): “ In the selling of cotton by a planter or commission merchant, ‘ on cash sale/ ” this statute “ renders the sale executory until payment is made in full; until then no title whatever passes out of the seller, and, consequently, even
That such was really the legislative intent is evidenced by enactments on the subject subsequently passed. In discussing the incidents growing out of the act of 1854, Speer, J., in delivering the opinion pronounced in the case of Sparrow v. Pate, 67 Ga. 355, took occasion to point out that as, under the terms of that statute, •the title to “ cotton sold on a cash basis ” did not pass into the buyer until it was paid for by him in full, if it should be destroyed by fire before payment therefor, the loss would necessarily fall •upon the seller. This statement was in accord with the well-recognized doctrine that the owner of personalty who voluntarily places it in the hands of a bailee must suffer any loss of the same not arising out of any fault on the part of the latter. See Randle v. Stone, 77 Ga. 503, and authorities cited. In the case of Gunn v. Knoop, 73 Ga. 510, it appeared that a “factor of an owner of cotton agreed to sell it for cash to the agent of a firm. . . It was to
In the report of the case of Flanders v. Maynard, 58 Ga. 57, it is stated that, “ Whether it was understood between the parties that the title was not to pass until the money was actually paid, the testimony was conflicting.” The cotton sold had been weighed,, samples of it examined, and the purchase-price therefor definitely agreed on between the seller and a member of the firm to whom the cotton was sold. The members of that firm were identical with thosé of another partnership engaged in the banking business, with which latter firm the seller had an account as a depositor. He made no demand for,payment in money, but produced bis “bank pass-book” issued to him by the banking firm, took “ credit-in said book for the aggregate value of the cotton, as a sum then deposited by him in the bank, and after so doing [departed] satisfied, taking the book away with him, nothing being said touching a delivery of the cotton,” which was at the time stored in a warehouse, and the receipts for which were “in the hands of a clerk of the warehouseman, with whom they had been previously left by the owner of the cotton, in anticipation of a sale to other parties.” Judge Bleckley, in dealing with this feature of the case, observed (p. 62) that such a “transaction, in its ultimate form, amounts, prima facie, either to a loan of the value of the cotton, treating it as virtually paid for in cash, or to a modification of the terms of sale by converting a nominal cash bargain into a bargain on the credit of the partnership as banker.” As, however, there was no actual delivery at the time of either the cotton itself or the warehouse receipts therefor, this court held it was for the jury to determine whether or nor it was contemplated by the parties that-actual delivery should be dispensed with, and the buyer should be at liberty to call upon the warehouseman to turn over the cotton immediately, as fully paid for. In this connection, the learned judge who delivered the opinion of the court said: “ In a contract for the sale of cotton stored in a neighboring warehouse, both parties knowing it to be there, an intention to dispense with actual delivery may be inferred from circumstances, without any direct agreement; the circumstances including a settlement covering the-
It v'ery clearly appeared in Sparrow’s case, 67 Ga. 352, that the ■contract of sale was purely executory, there having been neither payment of any portion of the purchase-price of the cotton which was the subject-matter of that contract, nor any surrender, actual •or constructive, rof the possession of the property. “ An owner of ■cotton left it with a warehouseman for sale, leaving also the warehouse receipt, on presentation of which alone the cotton was deliverable ; the agent of certain cotton buyers contracted for the purchase of the cotton, indorsed on the receipt the price and his ini
We can not agree that such was the intention of the parties. When the cotton was first bargained for, credit was asked and refused, and both the parties assented to a sale on a strictly cash