Millender v. Looper

• Decision Date: 06 October 1950
• Docket Number: No. 33178,No. 1,33178,1
• Parties: MILLENDER v. LOOPER
• Court: Georgia Court of Appeals

Page 573

61 S.E.2d 573

82 Ga.App. 563

MILLENDER v. LOOPER.

No. 33178.

Court of Appeals of Georgia, Division No. 1.

Oct. 6, 1950.

Rehearing Denied Oct. 28, 1950.

Syllabus by the Court.

The trial judge improperly overruled the plaintiff's demurrer to paragraphs 10 and 11 of the defendant's plea and answer thereby rendering all further proceedings in the trial of the case nugatory.

This action was brought in Whitfield Superior Court by Ben Millender, d/b/a Standard Chenille Co., against John W. Looper. The petition shows, in substance, that the plaintiff stored certain rolls of sheeting and other goods at various times in a warehouse operated by the defendant, at an agreed storage charge of $25 per month, which was paid for the period from December 8, 1947, to June 30, 1948, that warehouse receipts were issued by or in the name of the defendant of the goods, that on demand and presentation of the receipts, on July 29 and 30, 1948, the defendant delivered all of the goods except 28 rolls of sheeting, which he failed and refused to deliver, and that of the goods delivered one roll of sheeting was delivered in a damaged condition. Recovery was sought for the value of the missing and damaged goods, the principal amount claimed in the original petition being $11,419.63.

The warehouse receipts or copies thereof were attached to the petition, as Exhibit A. The first is as follows:

'J. W. Looper Cotton Buyer, Feeds, Seeds, Fertilizers, Farm Machinery, Bagging and Ties Dalton, Georgia December 8, 1947

Received of Standard Chenille 6 rolls sheeting as follows:

                No.   Yds
                4491  765
                4495  820
                4498  762
                4499  702
                4508  856
                4509  931
                

Above sheeting received for storage in our Warehouse 'R' Not Insured--We Assume No Responsibility For Loss By Fire Or Theft.

Warehouseman assumes responsibility for ordinary care in storage only.

Storage rate will be reasonable to be agreed mutually upon.

J. W. Looper

/s/ J. W. Looper'

The other receipts issued are substantially the same as the first, except they bear different dates, list different goods, and no mention is made to any storage rate. Some of these receipts are signed in the same manner as the first receipt, and others are signed J. W. Looper, by B. or Billie Wilson, or B. or Billie Wilson, Bookkeeper.

In answer to the petition the defendant denied most of the material allegations, admitted that the plaintiff had paid him $25 per month for space rental, and claimed that the plaintiff had not paid him this rental for the months of May, June, and July, 1948.

For further plea and answer he alleged, among other things:

10. 'Prior to December 8, 1947, plaintiff applied to defendant for storage space in which to store certain sheeting. At that time defendant had no space available for storage purposes except in a building wherein defendant was conducting a business in which a large number of defendant's employees were daily engaged at work. Defendant so informed plaintiff that he had no warehouse facilities available, but at plaintiff's insistence defendant showed plaintiff a corner of the building, wherein he was conducting his personal business, for an amount to be agreed upon and later fixed at $25.00 per month. At the time the rental was made with the plaintiff it was understood between the parties that the rental, whatever it might be, was for space rental only and was not to cover any duties and responsibilities on the part of the defendant as a warehouseman. After the agreement was made and on or about December 8, 1947, plaintiff delivered to defendant's building the six rolls of sheeting as set forth in Exhibit 'A' of the petition, plaintiff's employees placing the heavy rolls of sheeting in the space as they saw fit. Defendant was present at the time said six rolls were delivered and was asked to execute a receipt for the same. It was explained to defendant that a receipt was desired in order to enable plaintiff to use the same for the purpose of borrowing money. Although defendant had not agreed to render and had not charged plaintiff for such service, defendant executed such a receipt as an accommodation to the plaintiff, and the matters and things specifically set forth in said receipt as shown in Exhibit 'A' were specifically set forth therein to accord with the agreement existing between the parties at such time as heretofore alleged. Likewise on or about December 11, 1947, certain sheeting was delivered to defendant and defendant was informed by the plaintiff or his agent that there were seven rolls and defendant again personally executed a receipt as set forth in Exhibit 'A' to the petition without making any count of the rolls. Thereafter, understanding that receipts were a matter of form to be used as collateral for loans and that defendant['s] responsibilities were not to be those of a warehouseman, whenever sheeting was delivered to defendant's plant, plaintiff, his agents or employees and particularly Homer Smith, plaintiff's manager, would go to defendant's office and state to Miss Billie Wilson, the bookkeeper in the office, the quantity of sheeting delivered and she executed the remaining receipts set forth in Exhibit 'A' as a matter of form taking the word of plaintiff's said agents and employees, without otherwise seeking to determine whether or not such sheeting was actually delivered. Relying upon the agreement between defendant and plaintiff, and relying upon the honesty and integrity of plaintiff, defendant made no effort whatsoever to determine whether or not the sheeting actually receipted for by Miss Wilson was actually placed in defendant's building.'

11. 'Defendant further alleges that plaintiff knew that defendant was relying on the agreement existing between them as well as upon his honesty, as heretofore alleged, and that defendant was not using any means or caution to prevent receipts being issued to plaintiff as might be requested by him, his agents and employees and particularly the said Homer Smith. Plaintiff, together with his agents and employees and particularly Homer Smith, plaintiff's manager, and others well known to plaintiff but unknown to defendant, thereupon conspired to obtain and did obtain receipts for more sheeting than was actually delivered to defendant's place of business in order to defraud defendant and in order to increase plaintiff's borrowing power.

'Defendant was without knowledge of said deceitful and fraudulent conduct on the part of the plaintiff and his said agents and employees until after all deliveries had been made to defendant, and plaintiff was wrongfully in possession of the receipts as set forth in Exhibit 'A' of the petition. The exact number of rolls of sheeting never placed in defendant's building, but for which plaintiff obtained receipts is unknown to defendant but well known to plaintiff.'

The plaintiff demurred to various parts of the plea and answer, including, among others, all of paragraph 10 and substantially all of paragraph 11, the gist of his contentions by demurrer being, insofar as the same is now material, that the allegations of the plea and answer, or various parts thereof, (1) attempt to show a different contract in parol from that shown by the written receipts, (2) fail to show any conspiracy to defraud the defendant on the part of the plaintiff or his agents, and (3) fail to show any equitable or legal defense to the action. The trial judge overruled the demurrer, except insofar as it attacked any showing of a landlord and tenant relationship, sustaining it in this respect and holding that the relationship of bailor and bailee existed. The plaintiff excepted pendente lite to the ruling insofar as it was adverse to him.

Thereafter, the plaintiff amended the petition by reducing the claim for...