41 Ga. App. 83 | Ga. Ct. App. | 1930
R. O. Campbell Coal Company brought suit against Southern Railway Company, as upon an express contract, to recover the alleged purchase-price of eight carloads of coal, amounting to $1177.65. The plaintiff moved to amend the suit by adding a second count, as upon a quantum valebat, to recover the same sum as the reasonable value of the coal. The court allowed this amendment, over objection that it set forth a new and distinct cause of action, and the defendant excepted pendente lite. In the trial the plaintiff abandoned the original count and sought a recovery on the second count only. The trial resulted in a verdict in favor of the plaintiff, after which the defendant moved for a new trial, which the court refused, and the defendant excepted.
The court did not err in allowing the plaintiff to amend the petition by adding a second count, based upon a quantum valebat. Such amendment did not set forth a new and distinct cause of acr tion. Bartow Guano Co. v. Adair, 29 Ga. App. 644 (116 S. E. 342). This ruling is not in conflict with what is held in any of the cases cited for the plaintiff in error, each of these cases being distinguished on its facts from the case at bar. Compare Kraft v. Rowland, 33 Ga. App. 806 (2) (128 S. E. 812).
The evidence presented a very unusual and interesting state of facts. It appears that the plaintiff had a contract to buy eight carloads of coal from E. F. Guy of Jasper, Alabama. The coal was shipped by Guy to the plaintiff upon an open bill of lading in which Guy was named as shipper and the plaintiff as consignee. The plaintiff had coal yards in Atlanta, in which were private tracks entered through a gate, which. was opened and closed for the entrance and exit of trains or cars. Upon the arrival of the coal in Atlanta and before its acceptance the plaintiff, claiming that the coal was of an inferior quality, had, through its president, a conversation with Guy over the long-distance telephone, which, as the plaintiff contends, resulted in an agreement that Guy would
In the motion for a new trial error was assigned upon the
This appears to have been a concrete and accurate statement of
Error was also assigned upon the following charge: “If you should believe that the coal in question was placed within the enclosure of the yard of the plaintiff company, and if you should believe that thereafter the coal was withdrawn from that yard by the defendant company and appropriated to the use of defendant company, — if you should believe that under the circumstances of withdrawal of it from the yard, that the circumstances were such' as to put a person, a reasonable person acting with reasonable care and diligence, on notice that the plaintiff was not delivering to the railroad company as rejected coal and that the defendant railroad company accepted it under the circumstances that would put a reasonable person, acting with reasonable care and diligence, on notice that it was not being delivered, or permitted to be withdrawn from its yard as rejected coal, then and in that event the defendant railroad company would be liable to the plaintiff for a reasonable market value for the coal so withdrawn, or used by it.” The exceptions to this charge were as follows: “Movant contends that the foregoing charge is error because it puts upon the railroad company, the defendant, the burden of inquiring into the contract between E. E. Guy and the R. O. Campbell Coal Company, and charges them with the duty of making inquiry as to the circumstances under which the coal was delivered to the defendant company. Movant further contends that no such duty or burden was as a matter of law upon the defendant company.” We do not think the charge was error for any of the reasons assigned. If the coal was in the possession of the plaintiff coal company, there was a presumption of ownership by it, and if the coal did in fact belong to the plaintiff, the defendant would be responsible for the reasonable value of the same, no matter what may have been the agreement between the defendant and Guy. In other words, the defendant took the coal subject to liability to the real owner, and, accordingly, had the burden of inquiring into the contract between Guy and the plaintiff so far as was necessary to ascertain the title of Guy as its vendor, since in the absence of some estoppel against the plaintiff the defendant purchased from Guy at its peril if it turned out
The third and last special' ground of the motion for a new .trial amounted only to an amplification of the general grounds, and can not be sustained.
Judgment affirmed.