Council v. Nunn

• Decision Date: 15 April 1930
• Docket Number: No. 20066.,20066.
• Citation: 41 Ga.App. 407,153 S.E. 234
• Parties: COUNCIL. v. NUNN.
• Court: Georgia Court of Appeals

41 Ga.App. 407

153 S.E. 234

COUNCIL.

v.NUNN.

No. 20066.

Court of Appeals of Georgia, Division No. 1.

April 15, 1930.

Rehearing Denied May 13, 1930.

Syllabus by the Court.

The court did not err in overruling the demurrer to the petition.

Syllabus by the Court.

The court did not err in refusing to grant a nonsuit or in directing a verdict for the plaintiff.

Additional Syllabus by Editorial Staff.

President of purchaser's mill ordering opening of car of peanuts exercised sufficient dominion over car to be liable in trover.

Evidence showed that representative of purchasers gave order that car of peanuts sold should not be unloaded, but that defendant, who was president of purchasers' mill, ordered car to be unloaded, and stated that he would pay for car the next day, and car was unloaded under such instructions.

Error from City Court of Americus; W. M. Harper, Judge.

Suit by G. C. Nunn against C. M. Council and others. Judgment for plaintiff, and defendant named brings error.

Affirmed.

G. C. Nunn, alleging that he was a commission merchant, and, by amendment, that he was a planter, filed a petition in trover against the Farmers' Cotton Oil Company, a corporation, C. M. Council, G. W. Riley, and W. M. Kiley, alleging that they were in possession of "thirty-eight thousand seven hundred pounds of white Spanish peanuts, being those peanuts shipped to said Farmers Cotton Oil Company by petitioner from Perry, Georgia, on November 22, 1928, and received by said defendants on or about November 24, 1928, at Americus, Georgia, in railroad-car C of Georgia No. 8890, to which your petitioner claims title. Petitioner shows that he contracted and agreed to sell said above-described peanuts to said defendants at and for the sum of $95 per ton, or a total of $1838.25 cash; * * * that, contrary to said terms of sale, the defendants unloaded said car of peanuts and took possession of the same without paying petitioner therefor, nor have they since paid him for the same; * * * that petitioner has made demand upon said defendants for said above-described peanuts, and they have failed, neglected, and refused to deliver the same to petitioner or pay him the profits thereof." Defendants demurred to the petition as follows: "There is no sufficient allegation in said petition to show any right of the plaintiff to recover of either of the defendants in this action." The demurrer was overruled. The Farmers' Cotton Oil Company filed an answer in which it admitted the receipt of the peanuts, but denied taking possession of them without paying therefor, and denied that plaintiff had ever made demand upon it for said peanuts; and, further answering said petition, "this defendant avers that it has paid to said plaintiff the contract price for said peanuts, for that it purchased from the Planters Bank of Americus exchange on the Philadelphia 'National Bank for the contract price of the same, and delivered said exchange to said plaintiff, which exchange was accepted by said plaintiff in payment of the purchase-price of said peanuts."

Council, by an amendment to his answer, alleged that "there has been a full and com plete accord and satisfaction for the purchase-price of the personal property in this action since the filing of this action; for that on the 28th day of February, 1929, said Nunn accepted said Philadelphia exchange for the purpose for which this was delivered to him, and made demand for the payment of the same upon the banking department of the State of Georgia, having the assets of the Planters Bank of Americus in hand for liquidation." The defendants Council, G. W. Riley, and W. M. Riley filed a joint answer, in which they admitted that Council was president, and G. W. Riley general manager, of the Farmers' Cotton Oil Company, but denied possession of said peanuts, and denied that they had received the peanuts named in the petition, and denied any connection with, or responsibility for, the car of peanuts, and alleged "that neither of them are guilty of the wrongs and injuries complained of. They deny that they or either of them have ever been in possession, custody, or control of the personal property described" in the petition.

Council, by an amendment, denied that plaintiff was a commission merchant. By an amendment he further alleged "that the acceptance by the plaintiff of said Philadelphia exchange and his continued holding and keeping of said exchange which was given in settlement of said car of peanuts as aforesaid is a bar to any claim for recovery of the property for which said exchange was given in payment, notwithstanding said exchange may not have been paid by the drawee bank."

At the conclusion of the evidence for the plaintiff, counsel for defendants moved for a nonsuit, and, when this motion was over ruled, the defendants excepted. The case proceeded to trial, and at the conclusion of the evidence counsel for Council moved for the direction of a verdict in favor of his client, and counsel for plaintiff asked that a verdict be directed in favor of Nunn. After considering the two motions, the court ruled as follows: "Under the law I think it would be my duty to direct a verdict against the Farmers Cotton Oil Company and C. M. Council." To this order counsel for Council excepted also.

R. L. Maynard, of Americus, for plaintiff in error.

Duncan & Nunn, of Perry, and Stephen Pace, of Americus, for defendant in error.

BLOODWORTH, J. (after stating the foregoing facts).

1. The court did not err in overruling the demurrer to the petition. The petition as amended alleged that plaintiff was a planter and a commission merchant; that he sold the peanuts in question for cash; and that he had never been paid for them. Under sec-tion 4126 of the Civil Code (1910) title to the car of peanuts never passed from the plaintiff. See Skinner v. Hillis, 25 Ga. App. 711, 104 S. E. 508.

2. The defendant complains of the refusal of the court to grant a nonsuit, and in his motion urges three reasons why this was error.

(a) The first of these reasons is that the evidence does not show that Council individually exercised any dominion or control over the car of peanuts. The evidence shows that G. C. Nunn, the seller of the peanuts, and G. W. Riley, who represented the purchasers, each swore that the sale was a cash transaction. G. W. Riley swore also that he gave instructions to the superintendent of the oil mill company not to unload this car of peanuts under any circumstances until he heard from him. He swore also that the car was not opened, unloaded, or worked by his consent, but that this was done under orders of C. M. Council. Thombly, who at the time was superintendent of the oil mill, stated that G. W. Riley told him not to unload this car of peanuts until he ordered it done, but that Council ordered him to go ahead and unload them. Bynum, bookkeeper and cashier of the oil mill, swore that G. W. Riley instructed "us" not to unload the car until the peanuts were paid for; that Council "phoned me one night before I left the office to have them unloaded, said that he was going to pay for them the next day, next morning"; that the car was unloaded the next morning after receiving instructions from Mr. Council, and was reloaded and shipped by his direction; that "I ordinarily gave checks for the payment of peanuts bought by the Farmers' Cotton Oil Company. In this particular instance I was instructed to handle it the way it was handled, was so instructed by Mr. C. M. Council." Does not this evidence clearly show a distinct act of dominion wrongfully asserted over Nunn's property in denial of his right? In not this a conversion? "Any distinct dominion wrongfully asserted over another's property in denial of his right, or inconsistent with it, is a conversion. It is unnecessary to show that the defendant applied it to his own use, if he exercised dominion over it in defiance of the owner's right, or in a manner inconsistent with it. It is in law a conversion, whether it be for his own or any other's use." Merchants, etc., Transportation Co. v. Moore, 124 Ga....