Allen v. Pearce

• Decision Date: 10 March 1890
• Citation: 84 Ga. 606,10 S.E. 1015
• Parties: ALLEN v. Pearce.
• Court: Georgia Supreme Court

10 S.E. 1015

(84 Ga. 606)

ALLEN

v.Pearce.

Supreme Court of Georgia.

March 10, 1890.

Promissory Notes—Consideration.

Code Ga. § 1553a, makes it a penal offense to sell any fertilizer in the state without a tag or brand showing the analysis thereof. Section 2745 provides that, if the consideration for a contract "be good in part and in part void, the promise will be sustained or not, according as it is entire or severable. * * * But, if the consideration be illegal in whole or in part, the whole promise fails. " Held, in an action on a note for the price of fertilizer, put up in bags, that the contract was entire, and, if any of the bags were not branded as required, the consideration was illegal to that extent, and the whole promise failed.

Error from superior court, Talbot county; Smith, Judge.

Willis & Pearson and J. M. Matthews, for plaintiff in error. Martin & Worrilland John Peabody, for defendant in error.

Simmons, J. Pearce sued Allen on a promissory note, which note was given by Allen for 15 tons of guano. Allen pleaded that "the note was given for commercial fertilizer, the fertilizer being put up in sacks which, when sold and delivered to him, were not branded with the inspector's brand, nor did they have tags or other device of the inspector showing the analysis of the guano; and that the consideration of the contract sued on was void because the sacks containing the fertilizer did not have on them the marks or brands of an inspector of fertilizers." The jury found for the plaintiff, and defendant moved for a new trial, which was refused by the court, and he excepted. One of the errors complained of is the charge of the court as set out in the fourth ground of the motion, which is as folows: " Ascertain from the evidence if all the sacks were tagged and branded with the analysis of the guano, and, if they were not so tagged and, branded, ascertain how many were tagged and branded, if any; and, if you find that they were all tagged and branded, you will be authorized to find for the plaintiff; but if you should find that some were tagged and branded, and some were not, then you would be authorized to find for the plaintiff for as many as were tagged or branded, and for no more. " We think the court erred in giving this charge. Under the Code, § 1553a, it is made a penal offense for any manufacturer, dealer, or other person to sell any fertilizer in this state with-out having a brand, tag, or such other device as the commissioner of agriculture...