Drake v. Thyer Mfg. Corp.

• Decision Date: 16 November 1961
• Docket Number: 2,3,No. 38566,Nos. 1,38566,s. 1
• Citation: 123 S.E.2d 457,105 Ga.App. 20
• Parties: M. G. DRAKE v. THYER MANUFACTURING CORPORATION
• Court: Georgia Court of Appeals

Page 457

123 S.E.2d 457

105 Ga.App. 20

M. G. DRAKE v. THYER MANUFACTURING CORPORATION.

No. 38566.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 16, 1961.

Rehearing Denied Dec. 5, 1961.

Syllabus by the Court

1. A cause of action for the amount of use tax paid the State by a nonresident seller does not arise in behalf of the seller until he pays to the State the amount of use tax due.

2. No estoppel arises in favor of a purchaser by reason of a representation by the seller that no use tax is due on the sale between them.

3. Full compliance with the sales and use tax law is fulfilled when the full amounts due under the law are paid to the State.

P. Walter Jones, Robert Drake, Albany, for plaintiff in error.

Perry, Walters & Langstaff, Joseph B. Powell, Jr., Albany, for defendant in error.

Eugene Cook, Atty. Gen., Ben Johnson, Robert W. Goodman, Deputy Asst. Attys. Gen., amici curiae.

FELTON, Chief Judge.

The Thyer Manufacturing Corp. sued M. G. Drake, d/b/a Drake Construction Co., to recover $7,806.40, the amount of use tax paid by the plaintiff to the State of Georgia, Department of Revenue, in connection with the plaintiff's failure in the first instance to collect the use tax from the defendant on sales of tangible personal property made by the plaintiff to the defendant, said sales being made during a period from January 22, 1954, through January 9, 1957. The plaintiff is a nonresident of the State. The defendant filed a general demurrer to the petition which was overruled. The defendant also filed an answer in which in denied owing the amount sued for and set up that a part of the sums sued for was barred by the statute of limitation of four years. The trial judge, sitting without a jury, heard the case on a written stipulation of facts and rendered judgment in favor of the plaintiff in the amount sued for. The stipulation of facts shows that the tax was paid by the plaintiff to the State of Georgia by three checks, one dated July 25, 1958, one dated August 14, 1958, and the other dated September 15, 1959. The action was filed on January 15, 1960. On appeal this court, 103 Ga.App. 351, 119 S.E.2d 131, reversed the ruling on the general demurrer on the ground that the petition did not affirmatively show that the provisions of the Georgia Sales and Use Tax Act were complied with by the plaintiff. On certiorari the Supreme Court in Thyer Manufacturing Corp. v. Drake, 217 Ga. 14, 121 S.E.2d 136, reversed the judgment of this court and held that the plaintiff's petition was not subject to general demurrer and returned the case to this court for further action to give effect to the decision of that court. The gravamen of the Supreme Court ruling was that it is not necessary for the plaintiff to show compliance with the Sales and Use Tax Act in anticipation of a possible defense by the defendant. The prior judgment of this court is vacated and the judgment of the Supreme Court which affirmed the judgment of the trial court overruling the defendant's general demurrer is made the judgment of this court. The judgment of the Supreme Court has the effect of nullifying the ruling made by this court. On the question whether the plaintiff is entitled to recover where the plaintiff pays the tax involved to the State before suing the defendant where it appeared under the stipulation of fact that the plaintiff did not collect the tax, as required by Code Ann. § 92-3405a, nor file any return as required by Code Ann. § 92-3424a, the Supreme Court made no ruling and it is now incumbent on this court to decide that question, together with the questions whether part of the sum sued for is barred by the statute of limitation of four years, and whether the plaintiff is estopped from collecting the amount sued for from the defendant by reason of the fact stipulated that an agent of the plaintiff, in negotiating the sales involved with the defendant, advised the defendant that the plaintiff company had advised him that its interpretation of the Georgia Sales and Use Tax Act Was that in the sales to the defendant there would not be any tax required to be paid by either the plaintiff or the defendant.

1. No part of the amount sued for is barred by the statute of limitation. The plaintiff paid the tax involved to the State within four years from the date of the filing of the present action. Since the plaintiff had no cause of action for the use tax, which under the law was a part of the purchase price, until it paid the same to the State, the plaintiff's cause of action to recover the amount of the tax did not arise until the plaintiff paid the tax to the State.

2. The plaintiff is not estopped to collect the amount sued for. As will be shown in Division 3, the law makes it the duty of the defendant, as well as the plaintiff to pay the tax involved in the sales transactions upon which the use tax was due. Neither party had a right to rely on the opinion of the other as to how the law should be interpreted. Any deviation from the true demands of the law must be made at the risk of the party making the deviation. Misrepresentations of the law or matters of law generally cannot from the basis of a cause of action or defense in the absence of a confidential relationship between the parties. Williams v. Dougherty County, 101 Ga.App. 193, 113 S.E.2d 168, and cases cited; Fields v. Fire & Cas. Ins. Co. of Connecticut, 101 Ga.App. 561, 114 S.E.2d 540, and cases cited.

3. The principal problem in this case is the correct interpretation of the provision of the acts of the General Assembly referred to and codified in Code Ann., § 92-3404a(8), which reads as follows: "Dealer' also means and includes every person who solicits business either by representatives or by the distribution of catalogs or other advertising matter and by reason thereof receives and accepts orders from consumers in the State of Georgia, and such dealer shall collect the tax imposed by this Chapter from the purchaser and no action either in law or in equity on a sale or transaction as provided by the terms of this Chapter may be had in this State by any such dealer unless it be affirmatively shown that the provisions of this Chapter have been fully complied with.'

In construing a statute, the spirit of the enactment should be considered and construction should be made in accordance therewith; and the courts are not controlled by the literal meaning of the language of the statute. The spirit or the intention of the law prevails over the letter. 82 C.J.S. Statutes § 325, pp. 613, 615. Constructions resulting in unreasonableness and absurd consequences should be avoided. 82 C.J.S. Statutes § 326, pp. 623, 627. The legislative intent prevails over literal import of words. The general scheme and purpose of legislation is the criterion for the proper construction thereof. Carroll v. Ragsdale, 192 Ga. 118, 15 S.E.2d 210; Gazan v. Heery, 183 Ga. 30, 187 S.E. 371; Williams v. Bear's Den, Inc., 214 Ga. 240, 104 S.E.2d 230; Ragland v. Justices of Inferior Court, 10 Ga. 65; Singer Mfg. Co. v. Wright, 97 Ga. 114, 121, 25 S.E. 249, 35 L.R.A. 497; Russell v. Arnold, 25 Ga. 625. In Plowden's Commentary it is stated: 'It is not the words of the law, but the internal sense of it, that makes the law; and our law consists of two parts, viz., of body and soul; the letter of the law is the body of the law, and the sense and reason of the law are the soul of the law * * * and the law may be resembled to a nut, which has a shell and a kernel within; the letter of the law represents the shell, and the sense of it the kernel; and as you will be no better for the nut if you make use only of the shell, so you will receive no benefit from the law if you rely upon the letter; and as the fruit and profit of the nut lie in the kernel and not in the shell, so the fruit and profit of the law consist in the sense more than in the letter. And it often happens that when you know the letter, you know not the sense, for sometimes the sense is more confined than the letter, and sometimes it is more large and extensive.' It is quite clear that the purpose of the Georgia Retailers' and Consumers' Sales and Use Tax Act is to bring about payment of taxes to and receipt of taxes by the State of Georgia. Since the ultimate aim is the payment and collection of the tax, it would seem that the payment of the tax, whenever made, would be regarded as full compliance with the law, whether certain technical details in the reporting of the tax, or any other preliminary requirements were omitted. It would seem that if nonresident dealers are provided with a remedy to collect the tax from...