Tyus v. Rust

34 Ga. 382 | Ga. | 1866

Lumpkin, C. J.

It seems that prior to January, 1863, Tyus, the plaintiff in error, had stored fifty-two bales of cotton with Sims & Rust, warehouse-men and factors in the city of Albany. That, proposing to change his residence about that time from Mitchell county to Thomas, Tyus went to Albany to look after his cotton. Finding that fourteen cents was all that he could get , for it, he declined selling it. And ‘Sims & Rust made him an advance of $1,000 upon the cotton. The evidence is, that Tyus instructed them not to sell his cotton to reimburse themselves, but that whenever they needed the money to notify hirn, and it should be refunded. In February, the month after, Mr. Charles Collins, the son-in-law of Tyus, went to Albany to sell this lot of cotton. He asked Rust, one of the firm of Sims & Rust, if he could get 18 cents for it. The reply was, by Rust, that he thought not; but he could take some samples and try the market. Seventeen and a half cents was the highest price offered. He did not sell. The next month, Sims and Rust, notwithstanding they had no notice to sell the cotton, did sell it to Jeremiah Bealle for nineteen and a half cents per pound, who seems to have been a bona fide purchaser from aught that appears to the contrary.

Tyus demanded the cotton several times of Sims & Rust, who declined delivering it, saying, in reply, that they had sold the cotton to Jeremiah Bealle. Tyus never tendered or offered to refund the $1,000 they had advanced him, or to pay the expenses and charges upon the cotton.

Tyus now sued out a possessory warrant, to get possession of his cotton — relying, probably, upon the case of Meredith vs. Knott and Hollingsworth, 34 Ga. R., p. 222. I was present when that case was adjudged, but did not participate in its determination, being related to one of the parties. It carried the doctrine of possessory warrants very far, though I will not say that the decision was wrong, there being no question or controversy about the title to the property in dispute. But we all agree that it is not,the remedy in this case. That Bealle has acquired a title to the cotton there can be no doubt, whatever private instructions were given by Tyus. Bealle was a bona fide purchaser; and, as to him, the factors had the power to sell the cotton.

There is another difficulty in the way of their proceeding. Tyus never seems to have tendered, or offered to pay, the $1,000 which Sims & Rust advanced him in January, 1863, nor to pay the expenses of storing the cotton. We think the Judge was right in not letting the case proceed in its present form.

Whether the plaintiff can maintain trover, or any other action against the defendants, we forbear to express any opinion.

Judgment affirmed.