Bartow Guano Co. v. Adair

• Decision Date: 16 February 1923
• Docket Number: 13284,13285.
• Parties: BARTOW GUANO CO. v. ADAIR. ADAIR v. BARTOW GUANO CO.
• Court: Georgia Court of Appeals

116 S.E. 342

29 Ga.App. 644

BARTOW GUANO CO. v. ADAIR.

ADAIR v. BARTOW GUANO CO.

Nos. 13284, 13285.

Court of Appeals of Georgia, Second Division

February 16, 1923

Syllabus by the Court.

A suit upon a promissory note for the purchase price of goods sold may be amended by adding a count upon a quantum valebat in reference to the same subject-matter.

(a) Such an amendment does not set forth a new cause of action even though the express contract originally declared upon includes an obligation to pay certain attorney's fees not in the implied contract, and a higher rate of interest than that allowable by law under the amendment.

In the sale of fertilizer material in bulk it is not necessary for the seller to comply with the provisions of sections 1771 and 1772 of the Civil Code 1910, but such materials may be sold in bulk to persons who purchase the same for use on their own lands, upon a compliance with the provisions of the act approved August 14, 1903 (Ga. Laws 1903, p. 94), contained in sections 1796 to 1799, inclusive.

In a suit by a dealer in or manufacturer of fertilizers, either upon a promissory note for the purchase price, or upon a quantum valebat for the value, of fertilizers, where the defense is made that the seller has failed to comply with the provisions of the law contained in section 1771 et seq. of the Civil Code 1910, in reference to inspection, analysis and branding, the burden is upon the defendant to establish such want of compliance by the seller.

(a) Similarly, in a suit by a dealer in or manufacturer of fertilizer materials in bulk, either upon a promissory note for the purchase price or upon a quantum valebat for the value thereof, the defense that they were sold without a compliance with the law will fail unless it is alleged and proved by the defendant that the seller failed to comply with the provisions of the act of 1903, referred to, section 1796 et seq.; it being the burden of the defendant to establish a defense so made.

There can be no recovery whatever in a suit upon a note, as an entire contract, for the purchase price of fertilizers sold where it appears that any part of the fertilizers, for the price of which the note was given, was sold in violation of the statutes in regard to inspection, analysis and branding although in a suit upon a quantum valebat there may be a recovery for the value of fertilizers sold as to which the law has been complied with, even though there may have been no such compliance as to other fertilizers, the value of which is declared for in such count, unless both were included in an entire contract of sale.

The evidence would have authorized a verdict for the plaintiff and the grant of a nonsuit was error.

There was no merit in the grounds of the demurrer that the amendment seeking a recovery upon a quantum valebat set up a new cause of action, and that it was not alleged therein that the name of the fertilizer and the guaranteed analysis were not branded upon the container.

Additional Syllabus by Editorial Staff.

If fertilizers or fertilizer materials in bulk are sold without compliance with the statutes (Civ. Code 1910, §§ 1771, 1772, 1796-1799), there can be no recovery therefor, whether action is brought on purchase-money note or on quantum valebat, under Civ. Code, § 5513.

In determining whether sale of fertilizers, some of which were sold without compliance with statute, was entire or severable, the original transaction should be looked to, and original order may throw light on the question.

Error from Superior Court, Paulding County; F. A. Irwin, Judge.

Action by the Bartow Guano Company against J. F. Adair. Judgment for defendant, and plaintiff brings error, and defendant brings a cross-bill of exceptions. Reversed on the main bill and affirmed on the cross-bill.

Bartow Guano Company sued J. F. Adair upon a promissory note. The defendant filed an answer alleging that the note was given for the purchase price of fertilizers sold without a compliance with section 1771 et seq. of the Civil Code 1910, and that the note therefore was based upon an illegal consideration and was void. The plaintiff moved to amend the suit by adding a second count as upon a quantum valebat, alleging a delivery by it to the defendant and an acceptance by him of 1 1/4 tons of the plaintiff's brand of fertilizer known as "Red Chief," of an alleged reasonable value stated; and alleging also the delivery by the plaintiff to the defendant, and the acceptance by him, of certain fertilizer materials in bulk, of a reasonable value stated, and praying for the recovery of the value thereof. The court allowed the amendment over written objections in the nature of a demurrer by the defendant, the grounds of which were in substance and effect that the amendment was not germane; that a new cause of action is set up, especially since the note carries 8 per cent. interest and the obligation for the payment of attorney's fees, and the new count seeks a recovery of only 7 per cent. interest and no attorney's fees; that it is not alleged that the fertilizers the value of which is sued for were analyzed as required by law, nor that the name or the guaranteed analysis of the fertilizer was branded on the container. The court overruled the demurrer and allowed the amendment.

With the suit thus amended, there was no question between the parties as to who should have the right to open the case. So the plaintiff proceeded to offer its evidence. It undertook to show a sale of a quantity of fertilizers under the brand name "Red Chief," and also that as to such fertilizers the plaintiff had complied with the law in reference to inspection, analysis, branding, and otherwise, as contained in section 1771 et seq. of the Code; also, that it had delivered to the defendant a quantity of fertilizer materials in bulk, and that prior to the sale thereof, and in reference thereto, it had complied with sections 1796 and 1797. There was evidence of the reasonable value of the fertilizer, and also of what the plaintiff contended were fertilizer materials sold in bulk. There was also evidence tending to show that both had been received by the defendant. The latter were sold in sacks, some of which were not branded at all, while some were in sacks branded, "Special."

A. Strickland, as a witness for the plaintiff, testified:

"As to what we called 'Special,' that was not meant for a regular guano, but was merely the sale of materials for home mixture. We just had to have a name for something that was selling different from our regular 10-2-2 and things like that. * * * What I mean by 'Special,' that was not a regular guano, but was merely what the farmer himself made up for us and we filled it according to his order. We had customers that would come to the plant and look over the stock of goods and pick out the formulas. One fellow would want 300 pounds of potash and 100 pounds less acid, and would want more nitrate, and it was the 'Special' that we would make. By the 'Special' business, we had a little mixing plant there that we built 7 years ago, and the farmers at home wanted to make their own stuff, and it was the only place in the country where a farmer could drive up there and get what he wanted. * * * That is the way Mr. Adair's fertilizer was made, and it was made out of these kind of materials I have described. * * * As to who made up the formula, the farmer and I got together on it."

While this witness testified that he did not make this particular order, the above was recited by him as the manner in which his company makes and sells fertilizer materials in bulk.

C. E. Day, sworn for the plaintiff, testified:

"I lived here in Paulding county last year, and last spring * * * sold some fertilizer for the Bartow Guano Company. I sold fertilizer to the defendant in this case. I went ahead and outlined two or three mixtures. He ordered from me 1,000 pounds 16 per cent. acid, 400 pounds sheep manure, 300 pounds blood and bone tankage, 200 pounds potash, and 100 pounds nitrate of soda to the ton. He gave me a signed order for it, and it was shipped. * * * When I sold him these materials that I named, the company was to mix it for him. I sold him just the materials, and I guess he understood that. I offered him the option of buying a regular guano, and he took the materials. The way we determined on this particular mixture, he and I discussed it, and he decided on it. I told him we had other mixtures, and he decided on this combination himself. The articles that he bought from me were fertilizer materials used for the purpose of making fertilizer. I suppose the Bartow Guano Company mixed that material. I sold him the fertilizer materials for them. I just simply sold him the material."

W. J. Handerson, Jr., sworn for the plaintiff, testified:

"As to how I combined the materials sold to Mr. Adair, his order specified 1,000 pounds of acid, 400 pounds sheep manure, 300 pounds blood and bone tankage, 200 pounds of potash, and 100 pounds of nitrate of soda per ton. I had something to do with the mixing of that. It was mixed in accordance with that order. * * * The materials as we claim we shipped to Mr. Adair on the order of Mr. Day were not shipped as a perfect fertilizer. Only the portion of his registered goods was shipped as a complete fertilizer. The other was only fertilizer materials shipped for his order. We just shipped that as materials. * * * The reason we didn't put the guaranteed analysis on the sack is because he didn't buy registered goods; he only bought fertilizer materials. We sold it as fertilizer materials for making fertilizer."

A rule promulgated by the commissioner of agriculture was introduced, which was as follows:

"Any manipulator or manufacturer can mix said materials

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