Hornsby v. Am. Agr. Chem. Co, (Nos. 18711, 18721.)

• Decision Date: 10 April 1928
• Docket Number: (Nos. 18711, 18721.)
• Citation: 142 S.E. 748,38 Ga.App. 103
• Parties: HORNSBY. v. AMERICAN AGR. CHEMICAL CO. AMERICAN AGR. CHEMICAL CO. v. HORNSBY.
• Court: Georgia Court of Appeals

38 Ga.App. 103

142 S.E. 748

HORNSBY.

v.AMERICAN AGR. CHEMICAL CO.

AMERICAN AGR. CHEMICAL CO.

v.HORNSBY.

(Nos. 18711, 18721.)

Court of Appeals of Georgia, Division No. 1.

April 10, 1928.

(Syllabus by the Court.)

Error from City Court of Miller County; W. I. Geer, Judge.

Suit by the American Agricultural Chemical Company against E. E. Hornsby. Judgment for plaintiff, defendant brings error, and plaintiff files cross-bill of exceptions. Affirmed on main bill of exceptions, cross-bill dismissed.

P. D. Rich, of Bainbridge, for plaintiff in error.

N. L. Stapleton, of Colquitt, for defendant in error.

LUKE, J. In a suit on a promissory note, brought by American Agricultural Chemical Company against E. E. Hornsby, the court directed a verdict against the defendant for principal, interest, and attorney's fees, and he excepted.

In his plea and answer, the defendant admitted the execution of the note, admitted receiving notice of plaintiff's intention to claim the stipulated attorney's fees, and pleaded a payment of $500 alleged to have been made December 6, 1926, a further credit for cotton, a set-off of $500 alleged to have been paid the plaintiff for certain land to which it had no title, and an additional set-off for taxes paid on said land and improvements made thereon. The note stipulated for the payment of 15 per cent. attorney's fees, and there is no controversy as to them. The $500 alleged to have been paid on December 6, 1926, was allowed as a credit on the note, so that matter needs no further consideration. The sustance of the plea relating to the cotton credit follows: In the fall of 1926, the defendant delivered to the plaintiff "as collateral security to the note sued on, " 17 bales of cotton of the average weight of 525 pounds per bale, and grading "middling and better, " upon the distinct understanding that the plaintiff was to allow a credit for it of not less than 10 cents a pound on the said note, that the said cotton was to be held until it enhanced in value, and that the note would be carried "for a short period of time." The plea further alleged that "during the month of April" the plaintiff, without his knowledge, and contrary to an agreement had with him, sold the said cotton for 8 cents per pound, when it had a market value of 15 cents per pound and was actually worth $1,338.55; and that the defendant was entitled to set off the highest proven value of the cotton between the time it was delivered to the plaintiff and the trial of the case.

The verdict was for the principal sum of $1,112.33, $54.50 interest, and $175.02 attorney's fees. This verdict was directed upon the theory that the cotton should be credited on the note at a valuation of 10 cents per pound. The defendant was entitled to a credit for the actual value of the cotton at the time the plaintiff sold it. Waring v. Gaskill, 95 Ga. 731 (2), 22 S. E. 659; Harrell v. Citizens' Banking Co., 111 Ga. 846 (1), 36 S. E. 460; Campbell v. Redwine, 22 Ga. App. 455 (3), 96 S. E. 347; Bennett v. Tucker, 32 Ga. App. 288, 123 S. E, 165.

It was agreed between the parties that 17 bales of cotton were to be credited on the note at an average weight of 525 pounds per bale, and that the price was to be fixed by the evi dence in the case. Mr. Hornsby testified for himself substantially as follows

"I was looking for something above 10 cents per pound, because it was left with the understanding they were to give me credit for 10 cents a pound, and, if there was any increase, I was to get that. * * * I do not know what has been the highest price of cotton of the same grade as the 17 bales since I delivered the cotton to them. * * * I did not have anybody grade the cotton. As each bale was ginned, I examined the sample at the time. * * * Some of it would go middling, and some low middling, and that was about the grade. On a general average I would say it would grade low middling. Cotton was selling as high as

12 and 13 cents at that time. I was expecting to get something like 12¹/₂ cents for the cotton."

C. M. Harris testified:

"About May 1st good middling was selling for about 12 cents per pound. * * * I don't know the grade of this cotton. * * * I think two bales would pass low middling. The other was stained and a very low grade. Part of it would not have brought 5 cents on the market at that time."

Mr. H. L. Gans, who bought the cotton, testified as follows:

"I paid him 8 cents per pound for the cotton. * * * The price I paid * * * was a fair market price at the time I bought. * * * At the time the cotton was bought, good middling cotton was worth about 12 cents per pound. * * * The average grade of this cotton was strict good ordinary cotton."

Of course, the burden was upon the defendant to show the market price of the cotton at the time it was sold. According to his testimony, cotton was selling as high as 12 and 13 cents, but what "low middling" cotton was selling for he does not state, What he was expecting to get for the cotton throws no light upon its actual value. On the other...