Patten v. Baggs

• Citation: 43 Ga. 168
• Parties: GEORGE PATTEN, plaintiff in error. v. JAMES BAGGS, defendant in error.
• Decision Date: 31 January 1871
• Court: Georgia Supreme Court

43 Ga. 168

GEORGE PATTEN, plaintiff in error. v. JAMES BAGGS, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

Evidence. Bailment. Estoppel. Practice Supreme Court. Before Judge Clark. Mitchell Superior Court. June, 1870.

This was trover, for certain cotton, by Patten against Baggs. One Stephens testified that in 1862 he sold thirty-nine bales of cotton to A. J. Hull, and gave Hull a writing describing the cotton, and agreeing to hold it subject to Hull's order, and that subsequently he stored it in Baggs' warehouse, by Hull's order. Plaintiff's counsel next offered in evidence Stephens' said obligation to Hull, indorsed in blank by Hull. They next offered in evidence the interrogatories of one Bloom, who answered that he was present in the early part of 1864, when D. H. Baldwin sold to Adam Griffin thirty-nine bales of cotton, said to be stored in Baggs' warehouse, for which Baldwin had Baggs' warehouse receipt, and gave Griffin a written conveyance of said cotton. The Court ruled out this and other evidence of Bloom, becausesaid receipt was not produced nor its absence accounted for. Bloom testified *that he subsequently bought said cotton from Griffin for one Schlatter. Schlatter\'s written conveyance of the cotton to plaintiff was shown. Plaintiff\'s son testified that in October, 1865, and at several other times prior to the suit, he demanded the cotton of Baggs, stating that the original receipt was lost; that Baggs told him that he did not doubt that the cotton was his father\'s, but that he could not deliver it in the absence of his warehouse receipt, because Bloom had told him not to do so, and refused, although he was offered a satisfactory bond of indemnity. Plaintiff showed that Stephens\' obligation to Hull had been in Bloom\'s or Griffin\'s possession, and showed the value of the cotton.

For the defendant, Rust testified that, at the instance of Bloom, in April, 1865, he notified Baggs not to deliver the cotton, because Bloom claimed it for the Brunswick Railroad Company, and said the warehouse receipt was lost.

Baggs testified, that when Patten demanded the cotton, he told him that he would not deliver it without his warehouse receipt, because Bloom claimed it to belong to the Brunswick Railroad Company; that Patten said the receipt was lost, whereupon he offered to deliver it upon such a bond of indemnity as Mr. Smith, an attorney at law, would approve; said he was anxious to deliver it to the proper owner. Patten agreed to give the bond, but did not. Subsequently, without his connivance and against his consent, the United States Treasury agents seized the cotton and carried it away, saying it belonged to the Confederate States. Patten spent much time and money in trying to reclaim it, but failed to get it or pay for it.

Smith testified that Patten told him of the difficulty and got him to draw a bond of indemnity, and had it signed, but the sureties were not good and he refused it on that account, and Patten never gave or offered any other. This evidence of Baggs and Smith, as to the indemnity bond, was objected to, because it was things done in a treatyfor compromise. The objection was overruled. Defendant showed the seizure *of said cotton, and his efforts to reclaim it, as aforesaid, and closed.

The Court charge the jury: If plaintiff had showed his title to said cotton he should recover, unless defendant showed a legal reason to the contrary. If defendant converted the cotton to his own use, or sought to do so, and, pending the conversion, or afterwards, it was seized by the United States, he is liable for its value. If defendanthad notice of a defect in plaintiff\'s title, or of another outstanding title, or such notice as to cast serious doubts upon plaintiff\'s title, he had the right to refuse to deliver the cotton until the original receipt was produced, or plaintiff had indemnified him in some way against the claims of others. If plaintiff did not produce the original receipt or indemnify defendant, and defendant, to protect himself, bona fide, held the cotton, setting up no claim in himself, but to find out the true owner, and while he so held it such seizure occurred, he would not be liable. If defendant\'s refusal to deliver was captious, or if he set up a claim for himself, or wrongfully delayed plaintiff, or so acted as to defeat or retard plaintiff in getting possession, such acts would amount to a conversion, etc. The jury found for the defendant.

Plaintiff's counsel moved for a new trial, upon the grounds that the Court erred in ruling out said evidence of Bloom, and in allowing that of Baggs and Smith, objected to, as aforesaid, and in charging as aforesaid, and because the verdict was contrary to the evidence, etc. By amendment they added, that they were surprised by Baggs' and Smith's evidence as to the failure to give the indemnity; stated that Young Patten did offer any kind of indemnity, and that the plaintiff did not attend Court because of his great distance from it, and family afflictions, and therefore they did not know this till after the trial, and that counsel did not know this fact till after trial. The Court refused a new trial, and error is assigned on each of said grounds.

When this cause was called, it was dismissed for want of *prosecution. It was reinstated upon counsel for plaintiff in error stating, in his place, that his absence was caused by his sickness.

The papers came here in this shape: First, the declaration, etc., then a motion for new trial, then the bill of exceptions, without the evidence being embodied in it, then a brief of evidence, agreed to by counsel, on which was a marginal note, purporting to be a correction by the Judge, but not signed by him, then the usual certificate; after it, a certificate that the brief of evidence was correct, and last, a certificate by the Clerk, that the bill of exceptions was the true original, and that the record was a complete transcript, etc.

The bill of exceptions did not allude to any brief of evidence; it did not appear to have been attached to the bill of exceptions when it was tendered to the Judge, and he did not certify on the brief that it was the one to which his certificate had reference. After the cause was reinstated, counsel moved to dismiss it, because the evidence was not in the bill of exceptions, nor attached to it and identified by the Judge. It was replied, that the Act of 1870 saved the cause, though it came up before said Act was passed. And the Court overruled the motion.

H. Morgan, for plaintiff in error. As to excluding Bloom's evidence: 1 Gr. Ev., sees. 86, 87, 88, 89, 90; 11 Wend. R., 667; 10 John R., 448; 17 Mass. R., 165; 2 Phil. Ev., 363; Cowen & H's notes, 860; 1 East's R., 227; R. Code, sec. 3754; 1 Ga. R., 18; 3d, 215; 38th, 554. As to negotiations for compromise not being evidence: Dudley's Ga. R., 218; 6...