Hamilton v. Wilson & Co.

• Decision Date: 30 September 1881
• Citation: 67 Ga. 494
• Parties: Hamilton . vs. Wilson & Company.
• Court: Georgia Supreme Court

67 Ga. 494

Hamilton . vs. Wilson & Company.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

Practice in Superior Court. Notice. Promissory Notes. Fraud. Verdict. New Trial. Before Judge Snead. McDuffie Superior Court. March Term, 1881.

Wilson & Co. brought their suit to March term, 1880, of McDuffie superior court, against Thomas A. Hamilton, on a promissory note, dated May 9th, 1879, and due the first of November following, for the sum of $229.60, payable to the Atlantic and Virginia Fertilizing Company, or order, the consideration being for 6, 804 pounds of commercial fertilizer, known as the " Eureka" guano.

The defendant filed the following pleas:

(1) Failure of consideration—that the guano was worthless, and not reasonably suited to the use intended.

(2.) That R. T. Wilson & Co., the plaintiffs, were not bona fide holders of said note sued on.

The plaintiffs introduced in evidence the following original note, and closed:

"Georgia, McDuffie County, May 9, 1879.

$229.60.

On the first day of November next, i promise to pay to the Allan-tic and Virginia Fertilizing Company, or order, two hundred and twenty-nine 60-100 dollars, with interest, after maturity, at twelve per cent. per annum, for value received, in 6, 804 pounds of commercial fertilizer, known as Eureka, delivered to me, which has been legally inspected and tagged. i have the option of paying this note in middling cotton at the rate of fifteen cents per pound, provided i deliver thesame to Dr. E. S. Harrison, at Thomson Depot, on Georgia Railroad, ginned, baled, and delivered in merchantable order, on or before the first day of November, 1879, but not otherwise.

In witness whereof, I have hereunto set my hand and seal, this the ninth day of May, 1879. T. A. Hamilton, [l.s.]"

Upon the back of said note appeared the following, to-wit:

"For value received, we hereby assign the within note to R. T. Wilson & Co.

Atlantic and Virginia Fertilizing Co.

S. D. Crenshaw."

Defendant then introduced interrogatories of S. D. Crenshaw, taken by plaintiff.

Witness resided In the state of New Jersey; knew R. T. Wilson & Co.. and was a clerk in the office of Atlantic and Virginia Fertilizing Co., and in 1879 confidential clerk; recognized original note sued on, attached to the interrogatories, and made the transfer indorsed on the back of said note in August, 1879; was authorized to do so by board of trustees of the Atlantic and Virginia Fertilizing Co., by a resolution of the board. A certified copy of resolution he attaches to his interrogatories, marked Exhibit A, which is as follows:

"At a called meeting of the board of trustees of the Atlantic and Virginia Fertilizing Company, held at the company's office, July 2, 1878, at 1.30 o'clock, p. m., it was, on motion,

"Resolved, That S. D. Crenshaw, in addition to the regular officers of the Company, be authorized to indorse said paper over to R. T, Wilson & Co."

The " said paper " referred to in above resolutions, were sundry papers held by the Atlantic and Virginia Fertilizing Company from the states of North and South Carolina, Georgia and Alabama. Witness says that authority has been continued to present time. Title to note was actually transferred and absolutely belonged to R. T. Wilson & Co. Note was sent for collection by R. T. Wilson & Co. to Harrison, agent at Thomson, Ga.; receipt acknowledgedto R. T. Wilson & Co., September 11, 1879; receipt attached to interrogatories.

The Atlantic and Virginia Fertilizing Company is a joint company, under laws of State of New York. R. T. Wilson &Co. were stockholders in said company in 1879, and are now. The company manufactures the Eureka guano, and other brands. Date of transfer to the note was not attached, because that was the custom of the company. Defendant, Hamilton, testified as follows: Harrison, agent at Thomson, wrote me that he would sell me the Eureka guano; that it was as good as the best, and had a fine analysis. I took the guano, and when I got ready to apply it, first discovered that it was in a hard, caked condition, and old guano. Wrote agent that sacks were short of weight, and that I was dissatisfied with the guano, and would not haul the remaining sacks from depot (eight in number), and would not have bought it if I had known it was old stock; that I would give it a thorough test and analysis, and that payment would depend upon its merit. The note was given under this agreement. The waiver of guaranty was erased, with the statement that there would be no dispute if the guano proved to be good. The agent said he was satisfied of that fact, or he would not take such a note. The test was made in excellent land, prepared in the best manner, well worked and never grassy; seasons tolerably good; a short drouth in July. Test was made in accurately measured rows, at rate of 210 pounds of guano to the acre. In rows where there was no guano the yield of cotton was as great or greater than in rows where guano was applied; guano was wholly worthless as a fertilizer; was hard, and had lost 40 pounds to the sack. As analyzed by the state chemist, it showed a loss in soluble phosphoric acid about 30 percent., and loss of ammonia about 28 per cent. Analysis I had made was above the minimum allowed by law, but not equal to the value claimed by the agent. Agent allowed the deficiency in weight; saw the notesued on in October, 1879, in agent\'s possession; said it had never been out of his possession; showed me the note; did not see that it had been transferred; don\'t think it had been; didn\'t examine it closely, owing to statement of agent that it had not been out of his possession; think I would have seen transfer, if it had been made.

A. H. Sturgis,. sworn for defendant, said:

Saw defendant's growing crop in summer of 1879; land was well worked, and no grass to injure crop; saw no difference in height of cotton in rows where guano was used and where no guano was used; could only find test rows by stakes.

Dr. E. S. Harrison, sworn for plaintiffs, said:

Was agent for Atlantic and Virginia Fertilizing Co. in 1879, and sold the guano to defendant; took note and forwarded it to the company before due, and it was returned to me in September, 1879, by R. T. Wilson & Co., with transfer on back of it don't remember that I told defendant the guano was old stock or not; did not tell defendant in October, 1879, that I had never parted with possession of the note; when I sent the note to the company, it was not transferred; the guano which defendant refused to take was sold and paid for; I received the printed form of note sued on from the company; am not now agent for the guano, and there is no other agent that I know of in town. Some people prefer old stock to new, because they don't pay for moisture when guano has been well protected from weather. I considered it equally as good.

Two letters from Dr. Harrison, agent, to defendant, were introduced by defendant. The first, under date of March 10, 1879, recited that the guano was good; had a fine analysis, and he could recommend it as being as "good as the very best." The second letter, dated May 1, 1879, admitted that the guano was old stock from last season; that defendant could have it analyzed, and that if it did not come no to the standard, the company would not claim any pay for it.

The jury, under the charge of the court, returned a verdict for the plaintiff, and defendant moved for a new trial, on the following grounds:

(1.) Because the verdict is contrary to the evidence, contrary to law and the weight of evidence.

(2.) Because the court erred in ruling that defendant's counsel could not comment on the erasures made on the face of said note, for the purpose of showing that by said erasures plaintiffs were put on notice as to the...