Pate v. Geo. P. Wyly & Co.

• Decision Date: 30 June 1903
• Citation: 45 S.E. 217,118 Ga. 262
• Parties: PATE et al. v. GEO. P. WYLY & CO. et al.
• Court: Georgia Supreme Court

45 S.E. 217

118 Ga. 262

PATE et al. v. GEO. P. WYLY & CO. et al.

Supreme Court of Georgia

June 30, 1903

Syllabus by the Court.

1. A partnership is not bound by a judgment rendered against a member thereof in a suit to which it was not a party, and which was brought against such member in his individual capacity to dispossess him of property over which he had assumed control, claiming that the firm of which he was a member had title thereto.

2. Under the facts brought to light on the trial of this case, a finding in favor of the prevailing party was wholly unwarranted, the evidence showing conclusively that such party never acquired title to the property in dispute, either by an actual or a constructive delivery of the same by the person who was in possession of it as owner.

Error from Superior Court, Wilcox County; B. D. Evans, Judge.

Action by George P. Wyly & Co., and others against R. O. Pate and others. Judgment for plaintiffs. Defendants bring error. Reversed.

Eldridge Cutts and Martin Cannon, for plaintiffs in error.

Hal Lawson, J. T. Hill, and E. D. Graham, for defendants in error.

FISH J.

It is unnecessary to set forth in detail all the facts disclosed by the record before us, or to state how the litigation arose. Suffice it to say that the case turns upon the question whether or not in August, 1900, J. I. Bruce, one of the plaintiffs in error, sold and delivered to Geo. P. Wyly & Co., the successful party in the court below, three rafts of timber, then in the possession of the former. During the month of March, 1900, Bruce sold to the firm of Geo. P. Wyly & Co. certain other timber, that firm giving him two drafts drawn on Schmidt & Wyly, of Darien, Ga., to which latter firm the timber was subsequently delivered. Bruce transferred these drafts by indorsement to one King, a private banker who advanced to him money thereon. After the timber came into the possession of Schmidt & Wyly, a claim thereto was interposed by other parties, and that firm declined to pay the drafts drawn on it. The matter was finally settled by Geo. P. Wyly & Co. agreeing with Bruce to rescind the sale and allow the timber to be resold. The two drafts drawn by that firm on Schmidt & Wyly were not surrendered by Bruce but remained outstanding in the hands of King. He afterwards notified the firm of Geo. P. Wyly & Co. that he would hold it liable on these drafts if Bruce did not repay the money advanced to him on the faith of the same. King and Lon. Dickey, a member of that firm, tried to get Bruce to adjust this matter, and he told them that, "if Geo. P. Wyly & Co. would continue to purchase timber from him, he would allow the purchase money over and above expenses to be applied to the amount due on the drafts to King"; saying he could in this manner settle with King in full by June, 1900. Subsequently Geo. P. Wyly & Co. did purchase from Bruce several rafts, and he permitted the firm to pay over to King a portion of the purchase price of each raft, to be applied on the drafts. On or about August 7, 1900, Dickey, acting as the representative of the firm of which he was a member, entered into an executory agreement with Bruce as to a sale of the three rafts of timber first above mentioned. At that time the "timber was not through being rafted," but Dickey and Bruce agreed upon what basis the purchase price was to be fixed after the rafts had been measured and the quantity of timber thus ascertained. Dickey said the market price of timber was going down, and, in order to bind Schmidt & Wyly (for which firm Geo.

P. Wyly & Co. really acted in the capacity of a broker), he wanted to close the trade by giving to Bruce a draft for $100, drawn on Schmidt & Wyly, as a part payment of the purchase price. To this arrangement Bruce assented, and Dickey gave to him a draft for that amount on Schmidt & Wyly. On this occasion nothing appears to have been said with regard to what portion, if any, of the purchase price Bruce was to allow Geo. P. Wyly & Co. to pay over to King, the holder of the two drafts previously drawn on Schmidt & Wyly, but dishonored by that firm. On August 10th, Dickey and King went to see Bruce with a view to getting his consent to allow Geo. P. Wyly & Co. to withhold a sufficient amount of the purchase price of the three rafts to discharge in full King's claim. Dickey and King knew Bruce "was going out of the mill business and would not cut any more timber, and that King's money would have to be made out of this timber." Dickey asked Bruce to allow him to give to King a draft covering the full amount of his claim; but to this Bruce would not consent, saying he wanted to wait until the timber had been measured, and that he would then arrange the matter by doing what he could and "what was right." He neither agreed to permit King to be paid in full nor consented that any specified sum should be withheld by Dickey and applied to the satisfaction of King's demand. On the following day Dickey measured the timber in the three rafts, and late in the afternoon went to Bruce's commissary for the purpose of paying him the balance of the purchase price, which amounted to something more than $1,200 over and above the draft for $100 already in Bruce's hands. Dickey produced a statement prepared by King, showing the amount of his claim against Bruce, which was in the neighborhood of $670, and told him he (Dickey) "was ready to pay him the balance of something over $500 in money, then and there." Bruce replied he did not intend to allow Dickey and King to dictate what debts he should pay, and that he would not pay the King debt. Dickey thereupon drew from his pocket a roll of money, with the intention of making a tender to Bruce of the amount of the purchase price of the timber, less the sum represented to be still due King and the $100 for which a draft had already been given Bruce. In order to prevent Dickey from making this proposed tender, Bruce "blew out the lamp" by which the commissary was lighted. Dickey then said he intended to take the timber, as he had bought it. ...