Brown v. Salter
| Decision Date | 23 January 1939 |
| Docket Number | 27227. |
| Citation | 1 S.E.2d 468,59 Ga.App. 579 |
| Parties | BROWN v. SALTER. |
| Court | Georgia Court of Appeals |
Rehearing Denied March 4, 1939.
Syllabus Opinion by the Court.
The seller may recover as unpaid purchase money the portion of purchase price retained by buyer to pay a processing tax but retained without being used for that purpose because of invalidity of tax.
The ground of motion complaining that evidence had been erroneously admitted in that it was irrelevant and immaterial was too general to present anything for consideration by reviewing court.
The special grounds of motion for new trial not argued or insisted on were treated as abandoned.
Where buyer of peanuts, who deducted a portion of purchase price for alleged purpose of paying processing tax subsequently declared invalid, had recovered any taxes paid by him and thereafter had retained amount deducted, seller was entitled to recover that amount as an unpaid part of the purchase price.
In seller's action to recover portion of purchase price of peanuts allegedly retained by buyer for purpose of paying processing tax, but not used for that purpose, whether market price of peanuts at time of sale was in excess of amount received by seller held for jury.
A. B. Conger, of Bainbridge, for plaintiff in error.
H. B. Spooner, J. C. Hale, and Vance Custer, all of Bainbridge, for defendant in error.
1. "If, on the consummation of a sale of merchandise, the buyer retains out of the money to be paid a specific sum for the purpose of paying a processing tax, whereas such tax is invalid and therefore is not paid by the buyer, and the buyer continues to retain the sum so withheld, the seller may recover same as unpaid purchase-money." Salter v. Brown, 56 Ga.App. 792, 193 S.E. 903. Whether the buyer retains a part of the purchase money for the genuine purpose of paying a processing tax or merely retains such sum under a pretext of having to pay a processing tax, the seller is entitled to a return of the money if it is in fact not paid out but retained by the buyer after the processing tax act is declared invalid, even assuming, but not conceding, that under the terms of the act the grower and seller of the peanuts was subject to the tax.
2. The jury was authorized to find from the conflicting evidence in the present case that on November 6, 1935, the plaintiff sold to the defendant 7,775 pounds of Spanish peanuts and 9,720 pounds of runner peanuts at the "market price" then existing; that the defendant paid the plaintiff $63 per ton for the Spanish peanuts and $53 per ton for the runner peanuts after deducting $20 per ton, or $174.95, the amount sued for in the present case, with the explanation that such deduction represented the amount of a "processing tax" which, under the so called Agricultural Adjustment Act, 7 U.S. C.A. § 601 et seq., he would have to pay on the peanuts to the United States Government; that the market price, at the time of the sale, exclusive of the alleged processing tax, was $85 per ton for the Spanish peanuts and $75 per ton for the runner peanuts; that the defendant, in an equitable suit against the Collector of Internal Revenue for the District of Georgia, filed on September 16, 1935, and subsequently amended, in the District Court of the United States for the Columbus Division of the Middle Georgia District of Georgia, attacked the so called Agricultural Adjustment Act of Congress, under which processing taxes were levied in certain cases, as being unconstitutional and void and prevailed in said suit, the court, on January 24,
1936, permanently enjoining the collection of processing taxes from the petitioner, the defendant in the present suit, and ordering to be returned to him, less certain fees of the Clerk of the court, certain funds which, as processing taxes, had been paid into the registry of the court pending a decision of the case; that such funds were in fact returned to him; that the amount deducted from the purchase price of the peanuts delivered to the defendant by the plaintiff, $174.95, being $20 per ton on 17,495 pounds of peanuts, was retained by the defendant and not paid to the United States Government as a processing tax as he alleged would be necessary when purchasing the peanuts from the plaintiff, and under such evidence and the principles of law announced in the preceding first headnote was authorized to find that the plaintiff was due from the defendant the sum of $174.95 as part of the unpaid purchase-price of the peanuts delivered under the sale of November 6, 1935, and to return a verdict in favor of the plaintiff accordingly.
3. The grounds of the motion assigning error on various portions of the charge of the court are without merit. In these portions of the charge the court gave to the jury substantially correct instructions as to the law applicable to the case under the pleadings and the evidence. Taken in connection with the entire charge and the evidence, we do not think that they could be said to have confused or misled the jury as to the issue involved, but were proper instructions under the pleadings and the evidence.
4. The ground of the motion complaining that the court erred in admitting certain documentary evidence in that it was "irrelevant and immaterial" is too general and in law insufficient to present anything for consideration. Interstate Life, etc., Co. v. Stonecypher, 54 Ga.App. 497, 506, 188 S.E. 294, and cit.
5. Two other special grounds of the motion for new trial not being argued or insisted on are treated as abandoned.
Judgment affirmed.
On Motion for Rehearing.
Counsel for plaintiff in error contends in a motion for rehearing that this court has predicated its decision on the erroneous assumption that the grower of peanuts was subject to a processing tax, and not on the principle that, if in a sale of merchandise a price is agreed upon and the buyer pays only a part of that price, he is due to pay the seller the remainder. In other words, as contended, the court has employed a syllogism in which there is assumed the inaccurate major premise that a grower of peanuts was subject to the processing tax, the true minor premise that Salter was a grower of peanuts, and the conclusion that, therefore, Salter was subject to the processing tax prescribed by the so called Agricultural Adjustment Act; that from that erroneous deduction the court then proceeds to reach the conclusion as a matter of law that, the tax having been declared unconstitutional and void, the amount alleged to have been deducted by Brown was payable to Salter. It is then properly contended that the court did not determine as a matter of law that the tax was applicable to a grower, and it is asserted that the court merely "assumed" that it was, and that therein the decision is not based on substance of fact. It is further contended that Brown made no deduction from the market price of peanuts; that Salter was paid as much as he could have obtained anywhere in Southwest Georgia; that there was no evidence that the market price was higher than the amount paid by Brown; that there was no evidence of any peanuts having been processed by Brown, and that in any event it was of no concern to Salter whether or not Brown received from the United States government any refund of money paid to it or into court after an injunction had been granted in Brown's equity suit. In short, it is contended with much earnestness and evident sincerity that this court should have eliminated any question of deduction for tax, should have found that Salter was paid all that was agreed to be paid, and all that any of the buyers in Southwest Georgia would have paid. Having set forth what we conceive to be substantially the argument of counsel, the following may be set forth in elaboration of the syllabus opinion heretofore rendered.
Why should this court concern itself with the question whether or not the tax under the Agricultural Adjustment Act was applicable to a grower of peanuts when no issue is made in that respect? Counsel for plaintiff in error contends that it was not applicable. Counsel for defendant in error admits it. The plaintiff's petition did not allege it, and did not allege that any arm of the United States government had ever attempted to collect a processing tax from a grower. It alleges only that Salter sold Brown certain peanuts at the market price, and that in paying him for the peanuts Brown deducted $20 per ton "as a processing...
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