Palmour v. Durham Fertilizer Co.

• Decision Date: 29 July 1895
• Citation: 22 S.E. 931,97 Ga. 244
• Parties: PALMOUR v. DURHAM FERTILIZER CO.
• Court: Georgia Supreme Court

22 S.E. 931

97 Ga. 244

PALMOUR v. DURHAM FERTILIZER CO.

Supreme Court of Georgia

July 29, 1895

Syllabus by the Court.

1. Where the defendant in an action of bail trover, being unable to give the security required by law, was imprisoned for a failure to deliver up the property sued for, neither a petition filed by him under section 3420a of the Code to obtain a release from the imprisonment, nor the plaintiff's traverse or answer to the same, nor any of the proceedings had in this matter, formed any part of the pleadings upon either side in the main action.

2. If the plaintiff in such action fails to show title in himself he cannot recover either the property sued for or its value in money, although it may be conceded at the trial that the defendant was indebted to the plaintiff for the property in question, the defense being that the defendant had purchased the property, and was liable on account for its value. An action of trover, which proceeds upon the assumption that the plaintiff has the title to the property sued for, cannot under any circumstances, be converted into an action on account for the price of property sold and delivered, which necessarily involves the contrary assumption that the title had passed to the defendant.

3. The foregoing notes practically dispose of all the questions made in the motion for a new trial.

Error from superior court, Hall county; C.J. Wellborn, Judge.

Action by Durham Fertilizer Company against J. L. Palmour. There was a judgment in favor of plaintiff, and defendant brings error. Reversed.

It was error, in an action of bail trover, wherein defendant alleged that he purchased the property, and admitted that he was liable on account for its value, to render judgment for plaintiff on the account.

The following is the official report:

The Durham Fertilizer Company sued Palmour in bail trover for the recovery of certain bags of guano, alleged to be of the value of $416.10. It appears from the record that Palmour, being imprisoned under the bail process, presented his petition for release from custody on the ground that he was unable to give the bond and security required, and unable to produce the property sued for; and that in this petition he stated that he purchased from plaintiff several tons of fertilizer, and under the contract with plaintiff was to give his notes for the same, payable November 15 and December 15, 1890, and was to sell the fertilizer to farmers on time, taking their notes therefor, payable in November and December, 1890, and was to collect said notes, and out of the proceeds to pay said purchase notes; that under the contract plaintiff furnished him with the fertilizer, which he sold to farmers, taking their notes therefor; that these notes are not yet due, but he holds them, and will proceed to collect them promptly at maturity, and pay plaintiffs their proportion; and that he has tendered to plaintiff his promissory note, according to the contract, and has been and is ever ready and willing to deliver plaintiff his note due November and December 15 1890, in accordance with said contract, for the full amount of the fertilizer at his contract price. He was released from custody under this petition, it being provided in the order of release that, it appearing that he had sold certain of the guano, and taken notes therefor, payable to himself, he be restrained from selling, assigning, etc., any of said notes without first paying plaintiff the amount due it thereon, and, in case of collection on said notes, from using the money, without first paying plaintiff the amount due it on such collection. It was further ordered that he make a return to the court of his collections on the guano sales, at the court to which the case stood for trial. Upon the trial of the cause there was a verdict for plaintiff for $416.10, with interest. Defendant's motion for new trial was overruled, and he excepted. The motion contained the general grounds that the verdict was contrary to law, evidence, etc. Also, because the court erred in allowing plaintiff, over defendant's objection, on the trial of the case, to treat his petition for release and plaintiff's answer to the same as a part of the pleadings in the action to recover the guano. Movant contends that these proceedings had nothing to do with the pleadings in the trover case, and were no part of the record proper.

Error in allowing plaintiff, over defendant's objection, to set up its answer to his petition for release as a part of its original action to recover the guano. Movant contends that said answer was not a part of the original action, and that it was error to so consider it.

Error in allowing plaintiff, over defendant's objection, to amend its answer to his petition for release, by inserting near the end of said answer: "And that on final trial of said case respondents be allowed to take a judgment against said J. L. Palmour for the amount he owes respondents." Movant contends that said answer was no part of the pleadings in the action to recover the guano, had never been made a part of plaintiff's petition by any order of amendment and that said amendment was illegal and unauthorized; and that, if said answer was...