Pate v. Geo. P. Wyly & Co

• Citation: 45 S.E. 217,118 Ga. 262
• Court: Supreme Court of Georgia
• Decision Date: 30 June 1903
• Parties: PATE et al. v. GEO. P. WYLY & CO. et al.

45 S.E. 217
118 Ga. 262

PATE et al.
v.
GEO. P. WYLY & CO. et al.

Supreme Court of Georgia.

June 30, 1903.

RES JUDICATA—PARTNERSHIP—JUDGMENT AGAINST MEMBER—SALE—DELIVERY.

1. A partnership is not bound by a judgment rendered against a member thereof in a suit to which it was not a party, and which was brought against such member in his individual capacity to dispossess him of property over which he had assumed control, claiming that the firm of which he was a member had title thereto.

2. Under the facts brought to light on the trial of this case, a finding in favor of the prevailing party was wholly unwarranted, the evidence showing conclusively that such party never acquired title to the property in dispute, either by an actual or a constructive delivery of the same by the person who was in possession of it as owner.

(Syllabus by the Court.)

Error from Superior Court, Wilcox County; B. D. Evans, Judge.

Action by George P. Wyly & Co., ana others against R. O. Pate and others. Judgment for plaintiffs. Defendants bring error. Reversed.

Eldridge Cutts and Martin Cannon, for plaintiffs in error.

Hal Lawson, J. T. Hill, and E. D. Graham, for defendants in error.

FISH, J. It is unnecessary to set forth in detail all the facts disclosed by the record before us, or to state how the litigation arose. Suffice it to say that the case turns upon the question whether or not in August, 1900, J. I. Bruce, one of the plaintiffs in error, sold and delivered to Geo. P. Wyly & Co., the successful party in the court below, three rafts of timber, then in the possession of the former. During the month of March, 1900, Bruce sold to the firm of Geo. P. Wyly & Co. certain other timber, that firm giving him two drafts drawn on Schmidt & Wyly, of Darien, Ga., to which latter firm the timber was subsequently delivered. Bruce transferred these drafts by indorsement to one King, a private banker, who advanced to him money thereon. After the timber came into the possession of Schmidt & Wyly, a claim thereto was interposed by other parties, and that firm declined to pay the drafts drawn on it. The matter was finally settled by Geo. P. Wyly & Co. agreeing with Bruce to rescind the sale, and allow the timber to be resold. The two drafts drawn by that firm on Schmidt & Wyly were not surrendered by Bruce, but remained outstanding in the hands of King. He afterwards notified the firm of Geo. P. Wyly & Co. that he would hold it liable on these drafts if Bruce did not repay the money advanced to him on the faith of the same. King and Lon. Dickey, a member of that firm, tried to get Bruce to adjust this matter, and he told them that, "if Geo. P. Wyly & Co. would continue to purchase timber from him, he would allow the purchase money over and above expenses to be applied to the amount due on the drafts to King"; saying he could in this manner settle with King in full by June, 1900. Subsequently Geo. P. Wyly & Co. did purchase from Bruce several rafts, and he permitted the firm to pay over to King a portion of the purchase price of each raft, to be applied on the drafts. On or about August 7, 1900, Dickey, acting as the representative of the firm of which he was a member, entered into an executory agreement with Bruce as to a sale of the three rafts of timber first above mentioned. At that time the "timber was not through being...