128 Ga. 639 | Ga. | 1907
(After stating the facts.)
It is, however, upon the 4th paragraph that defendant in error mainly relies to support its contention that the matters involved in the last suit were within the scope of the pleadings in the first; and this paragraph is called, in the brief of its counsel, its “equitable plea” in the trover case. There is not in this plea any mention of or reference to the rent notes of Grimes and Geeslin, which were deposited with defendant by plaintiff to secure his indebtedness to defendant, nor of the fifteen bales of cotton collected by defendant on these notes, nor is there in such plea, or attached thereto, any itemized statement of the account between the parties, which, if completely set out, might have indicated an intention on the part of the defendant to have, upon the trial of the trover case, a complete accounting between the parties covering all their mutual dealings under the business arrangement between them set up in the plea, and also have shown that the matter now in controversy was embraced in such itemized account, and hence was intended to be taken into consideration in determining where and how the balance of indebtedness stood. There is not in this plea
The concluding clause of the prayer, which counsel for defendant in error seem to stress in their brief, does not broaden the scope of the inquiry already prayed for, but merely prays “that such verdict and judgment may be rendered in that hehalf as may be meet and just, and according to equity and good conscience.” This apparently means no more than that such verdict and judgment may be rendered in behalf of the plaintiff’s loss or damage by the sale of the cotton as may be meet and just and according to equity and good conscience. Our construction of this plea is, that it sought to escape the usual con sequences, in a trover suit, of proof of conversion — that is, a verdict in favor of the plaintiff for the recovery of the property, or its highest proved market value, — upon the ground that if there had been a technical conversion of the cotton by the defendant, it was simply through an honest mistake on its part as to its rights; and as it had acted in the utmost good faith in the matter, and had applied the entire proceeds received by it from the sale of the cotton-to the payment of the debt which it held against the plaintiff, and the parties had agreed that when the cotton was sold its proceeds should be so applied, the plaintiff ought not to recover anything more than his actual .loss or damage, that is, the difference between the highest proved value of the cotton and the amount for which the defendant sold it. The defendant did not in this plea, or in anj'- of the others, plead set-off or recoupment; nor did it even allege any equitable ground upon which a plea of set-off or recoupment could be based in a trover case. While it alleged the amount of the plaintiff’s indebtedness to it at the time that it sold the cotton, there was no prayer for a judgment for defendant for any balance of indebtedness that might be found in its favor; nor was there any prayer that, in .the event the proof should show a tech.nical conversion of the cotton sued for, the plaintiff’s indebtedness
As the subject-matter of the present suit was not within the scope of the pleadings in the former suit, the court erred in admitting in evidence the record of the trover case. Having reached this conclusion, the subsequent rulings of the trial court, complained of in the motion for a new trial, become immaterial. They resulted from the admission in evidence of the record of the trover case, without the admission of which, extrinsic evidence as to what matters were really litigated in the trial was not admissi- • ble. Judgment reversed.