Butler, Stevens & Co. v. Moseley

• Decision Date: 27 January 1914
• Docket Number: 5110.
• Citation: 80 S.E. 789,14 Ga.App. 288
• Parties: BUTLER, STEVENS & CO. v. MOSELEY.
• Court: Georgia Court of Appeals

80 S.E. 789

14 Ga.App. 288

BUTLER, STEVENS & CO. v. MOSELEY.

No. 5110.

Court of Appeals of Georgia

January 27, 1914

Syllabus by the Court.

Under the undisputed evidence the plaintiff was not entitled to recover. The evidence demanded a finding that the sale of the cotton sued for was on credit, that the defendant was an innocent purchaser from the plaintiff's vendee, and that the plaintiff, by his conduct, was estopped from asserting any claim to the cotton.

A plea of estoppel by judgment should allege all the facts and exhibit all the record essential to show that the plea is meritorious.

Error from City Court of Savannah; Davis Freeman, Judge.

Action by W. S. Moseley against Butler, Stevens & Co. Judgment for plaintiff, and defendants bring error. Reversed.

Adams & Adams, of Savannah, for plaintiffs in error.

Oliver & Oliver, of Savannah, for defendant in error.

POTTLE J.

Moseley sued Butler, Stevens & Co. in trover for four bales of cotton, upon the contention that the sale had been made by him for cash, and that title remained in him, and could be asserted against Butler, Stevens & Co., who were cotton factors in Savannah. It was undisputed that Butler, Stevens & Co. were innocent purchasers of the cotton from one Purvis to whom it had been sold by the plaintiff. A son of Purvis delivered to Moseley two bank checks covering the agreed price, and one of the checks was postdated 12 days. The son testified that he called Moseley's attention to the fact that the check for one-half the purchase price was postdated and Moseley assented to this arrangement, and delivered the cotton upon the understanding that one-half of the amount was not to be paid until after the expiration of 12 days. Moseley, however, denied this, and stated that he did not observe that the check was postdated until after he got home that 2 or 3 days after the reception of the check he saw Purvis, and told him that he did not sell his cotton on credit. According to Moseley, Purvis then replied that he forgot to mention the fact that the check was postdated, and that he would pay the amount before the 1st of February, if he could. Moseley thereupon told Purvis he would be glad if he would pay the check before the 1st of February, because he did not sell his cotton that way, and Purvis replied that he might pay it before that date. Moseley presented the postdated check for payment February 1st, and payment was declined because of lack of funds. It appears that the checks were delivered to Moseley by a son of Purvis at Hughland. Young Purvis came in on the train, stepped off upon the platform, delivered the checks to Moseley, and immediately got back on the train and went away. Moseley states that at that time he examined the checks to see if the amounts were correct, but did not notice the difference in dates. It is contended that a verdict in Moseley's favor was not authorized by the evidence.

1. The controlling question in this case is whether or not the transaction between Moseley and Purvis was a cash sale of the cotton, the price of which was covered by the postdated check. If the sale was for cash, the title of the seller was undivested until payment in full of the purchase money, and might be asserted by him even as against a bona fide purchaser from his vendee. In such a case the purchaser would be liable as for a conversion, although he got the cotton in entire good faith, and without notice of retention of title by the seller. Civil Code, § 4126; Flannery v Harley, 117 Ga. 483, 43 S.E. 765; McCall v. Hunter, 8 Ga.App. 612, 70 S.E. 59; Atlantic Coast Line R. Co. v. Gordon, 10 Ga.App. 311, 73 S.E. 594. By the very terms of the section of the Code, a sale would be on cash, although payment of the actual money might be delayed for a period of time necessary in the ordinary and usual course of business to reduce negotiable paper to cash. It is perfectly competent for a seller of cotton to extend credit to the purchaser, and, if he does, the transaction is governed by the rules applicable to any other credit sale. It is undisputed that Butler,...