Atlanta Guano Co. v. Phipps
| Decision Date | 08 May 1897 |
| Citation | 41 S.W. 1087 |
| Parties | ATLANTA GUANO CO. v. PHIPPS. |
| Court | Tennessee Supreme Court |
Error from chancery court, Hawkins county; John P. Smith, Chancellor.
Bill by the Atlanta Guano Company against J. M. Phipps. There was a decree for complainant, and defendant brought error. Complainant moved to dismiss a supersedeas in another action, but, as no supersedeas had in fact been granted, the costs of the motion were taxed to complainant. Decree affirmed.
Shields & Mountcastle, for plaintiff in error. S. L. Chesnutt and G. A. Smith, for defendant in error.
This suit was brought May 5, 1894, to recover on several notes executed by the defendant to the complainant for fertilizers manufactured by the latter and shipped to the former. The complainant is a corporation of Georgia. The defendant is a citizen of this state. Under the orders of the latter, the fertilizers were shipped to him at Gate City, Lee county, Va., which was the most convenient railroad point to his residence or place of business, which was at Rotherwood, Hawkins county, Tenn. Two of the notes executed by the defendant, one of which was entitled to certain credits, it is averred in the bill, had been lost, and as to them the suit was sought to be maintained on supplied copies. There was a demurrer to the bill, which was overruled. No questions arising thereon are before us, and it need not be further noticed.
In his answer the defendant presents three defenses: First. That the fertilizers were shipped to him at a point in Virginia because it was the most accessible railroad point, but that the contracts therefor were made in Hawkins county, Tenn., the notes given were executed and payable in Tennessee, and the product was for use in Tennessee; and, this being so, no recovery should be given on the notes, because the complainant failed to comply with the Acts of 1889, c. 266, which provides "that all commercial fertilizers sold, or offered for sale, in this state, shall, by stamps or otherwise, distinctly set forth, in each parcel or package, the chemical analysis of such fertilizers, the names of the manufacturer, the place of manufacture; and, furthermore, each of said packages or parcels shall be freely submitted to inspection, as herein provided, and shall bear a certificate of inspection or tag, furnished by the commissioner of agriculture, and showing authority from the state to sell such fertilizers." Second. That the complainant, organized under the laws of Georgia, was conducting its business in Tennessee, and did so in the sale to him of the fertilizers sued for, and that it had never complied with the provisions of the Acts of 1877, c. 31, requiring it to file with the secretary of state a copy of its charter, and an abstract of the same, for registration in each county in the state in which it proposed to do business. Third. That the fertilizers shipped to defendant were of an inferior grade, and practically worthless; that they were not up to the standard represented and guarantied; that, as a result of this, the farmers and others purchasing them from defendant refused to pay for them; and that, because of the worthless character of the product, he should not be made to pay therefor, and especially the sum specified in the notes, which was the full price for standard fertilizers. It is proper to note, as naturally a part of this last defense, that the defendant insists that, while his notes were given for these fertilizers, he was in fact the agent of complainant for the sale of its goods, and as such agent the goods were shipped to him.
Considerable evidence was taken by the parties, tending to establish their respective contentions as presented by the pleadings. Chancellor Smith heard the cause September 4, 1895. He held that the defendant was liable for the notes sued on, which, with interest and the attorney's fees provided for in the notes, amounted to $2,709.11, and passed a decree for this sum, and awarded execution therefor, and the costs. No appeal was prayed from this decree. But April 1, 1896, a petition, accompanied by transcript of the record and an assignment of errors, was presented to Mr. Justice Wilkes. of the supreme court, at his home, in Pulaski, Tenn., for a writ of error, and for a supersedeas to stay all proceedings to enforce a collection of the decree against the defendant. This petition presents two of the defenses made to the original bill, to wit, failure of consideration for the notes, on the ground that the fertilizers for which they were given were of an inferior grade and worthless, which fact, it was averred in the petition, was clearly established by the evidence in the case; and, second, that under all the facts appearing in the record the contract between the defendant and the complainant was a Tennessee contract, and that it was known that the fertilizers were to be sold in Tennessee, and, this being so, the chancellor committed error in rendering a decree for their payment, because the complainant had not complied with the act of the legislature (Acts 1889, c. 266, § 1, hereinbefore cited), prohibiting the sale of fertilizers in this state except on the condition specified in the act. This petition also avers that soon after the rendition of the decree in favor of complainant an execution issued thereon, and was returned nulla bona, and that thereafter, to wit, October 2, 1895, complainant filed another bill against defendant in the chancery court of Hawkins county to enforce satisfaction of his decree. This bill sought to reach and subject a tract of land of defendant in said county. A copy of this bill was made a part of the petition for writs of error and supersedeas. It is further averred in the petition that defendant made no defense to this bill, because he had none to make, as the pleadings stood. The result was that this bill was taken for confessed. And at a special term of the chancery court, in January, 1896, a decree was rendered therein ordering that a homestead be set apart for defendant in the land, that a mortgage thereon be foreclosed, and that the lands be sold to pay the mortgage, and then the decree of complainant. It is also alleged in this petition that this land is worth more than the mortgage upon it and the decree of complainant, and that the decree, under this second bill, provided for its sale, after setting apart a homestead, for cash, subject to the equity of redemption, and for a writ to issue to put the purchaser in possession. The execution of this last decree is, under the petition, sought to be superseded. Mr. Justice Wilkes ordered the writs to issue as prayed for in the petition.
The errors assigned are:
First, error in passing a decree for the whole or any part of the demands of complainant sued on, because the goods for which the demands were given were worthless, and were not the quality and character of fertilizers they were represented and guarantied to be. Under this assignment the insistence is that the clear weight of the proof is that a large part, if not all, of the fertilizers, were worthless and unmarketable, and hence that the court should, at least, not have rendered a decree until a reference was had to ascertain the amount of fertilizers which were inferior, and therefore worthless, or worth less than if they had been as guarantied. In connection with this assignment it is also contended that, while the defendant gave his notes for these fertilizers, he was in fact the agent of complainant for their sales; that the fertilizers, if not by the express terms of the contract and orders under which they were shipped, were by the legal implication of the terms thereof guarantied to be of a high-class grade, and fit and suitable for the purposes for which they were sold, and that, this being so, it being made to appear that the farmers to whom they were sold refused to pay for them because of their inferior quality, the defendant, in equity, should not be made to pay his notes in full, given upon the ground that the goods were first-class, and suitable for the end and use to which they were to be put. The second error assigned is that the chancellor should have dismissed the bill of complainant because it had not complied with the Acts of 1889, c. 266, § 1, hereinbefore cited. Under this assignment it is claimed that the complainant does not pretend that it had complied with this law. In this connection the insistence is also made that the fact that the goods were shipped to defendant at a point in Virginia does not meet and avoid the objection presented by the statute of the state cited, because, under all the facts in evidence, the contract between complainant and defendant was a Tennessee contract and sale, and shows that it was the understanding of the parties that the goods were to be sold by the defendant in Tennessee. This being so, the argument is advanced that it was the duty of complainant to ship the goods to defendant at Gate City, Va., his nearest and most convenient point on the railroad, in such condition that they could lawfully be sold in Tennessee. It is to be noted here that the defendant does not rely upon the other defense interposed below, that the complainant, being a nonresident corporation, had not complied with our statutes defining or designating the terms upon which such corporations were authorized to do business in this state.
The complainant appeared in this court April 13, 1897, and entered a motion in writing to dismiss the supersedeas granted to the defendant under his petition, in so far as it seeks to supersede the orders and decrees of the lower court under its second bill. The grounds of the motion to dismiss are (1) that there is no authority in law for granting a writ of supersedeas in a case separate and distinct from the cause in which the writ of error is sought and granted; (2) the defendant admits in his petition the correctness of the decree in the second case under the...
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