Southern Cotton Oil Co v. Raines, (No. 6685.)

• Citation: 167 Ga. 880,147 S.E. 77
• Decision Date: 27 February 1929
• Docket Number: (No. 6685.)
• Parties: SOUTHERN COTTON OIL CO. v. RAINES.
• Court: Supreme Court of Georgia

167 Ga. 880

147 S.E. 77

SOUTHERN COTTON OIL CO.

v.RAINES.

(No. 6685.)

Supreme Court of Georgia.

Feb. 27, 1929.

(Syllabus by Editorial Staff.)

Error from Superior Court, Terrell County; M. J. Yeomans, Judge.

Petition by T. B. Raines against the Southern Cotton Oil Company. Judgment for plaintiff, and defendant brings error. Reversed.

T. B. Raines filed a petition alleging that the Southern Cotton Oil Company was indebted to him in the sum of $2,109.18, for damages occasioned by sale to him by defendant of certain fertilizer guaranteed to contain 12 per cent. phosphoric acid, 4 per cent. ammonia, and 4 per cent. potash, which was the equivalent of 12 per cent. phosphoric acid, 3.30 per cent. nitrogen, and 4 per cent. potash, whereas said fertilizer actually contained 13.68 per cent. phosphoric acid, 2.76 per cent. nitrogen, and 4.25 per cent. potash; and that the guaranteed value of said fertilizer was $31.05 per ton, whereas its actual value was $29.97 per ton, or a difference of $1.08 per ton for 149.8 tons so sold; that said fertilizer was marked with tags showing a false analysis; that petitioner paid for it at $26 per ton, and when it fell off 3 per cent. from the guaranteed value the defendant became indebted to petitioner to the extent of 25 per cent. of the purchase price, and an additional 25 per cent. by reason of the false analysis, or a total of 50 per cent. of said purchase price; and that defendant had failed to pay said damages on demand. The defendant demurred generally, and on the grounds that the petition showed no damage by alleging an actual value of $29.97 per ton and that the purchase price was $26 per ton; that the act under which the suit was brought (Ga. L. 1911, p. 172, §§ 2, 3, 4) was unconstitutional, because repugnant to article 1, § 1, pars. 2 and 3, of the Constitution of Georgia, guaranteeing impartial and complete protection of the law and due process of law, as well as the due process clause of the Constitution of the United States; and that the petition failed to show the real value of the nitrogen in said fertilizer. The defendant answered, denying liability or any fraud, and setting up (in paragraph 7) that plaintiff and defendant agreed upon the analysis which had been by a reliable chemist, and agreed upon the ingredients and the quantity of each ingredient, which were mixed in the presence of plaintiff, or his representative, and that plaintiff knew the cost of each, and knew he was purchasing at a price less than they cost the defendant:

On the hearing, the court overruled the demurrer, sustained a motion to strike that part of the answer setting up the above-stated agreements and knowledge of plaintiff at the time of the transaction, admitted over defendant's objection a certified copy of an analysis of fertilizer introduced by plaintiff and made by a state chemist from sample taken by a state inspector, rejected two analyses introduced by the defendant, and sustained an objection of plaintiff to the testimony of a witness of defendant as to taking a sample for analysis; said objection being that the sample was not shown to have been taken as prescribed by law—to all of which rulings the defendant excepted. After introduction of evidence, the court directed a verdict for the plaintiff in the full amount sued for, with interest to date. To this judgment the defendant excepted on the ground that it is contrary to law and the evidence. The express contention in said suit was: "Petitioner shows that the purchase-price which he paid for said fertilizers was $3,894.80, and that 50 per cent, of said purchase-price is $1,947.40; that the shortage in said fertilizer amounted to $1.08 per ton for 149.8 tons, or a total of $161.78 for the total shortage, or a grand total of $2,109.18."

R. R. Marlin and W. H. Gurr, both of Dawson, for plaintiff in error.

R. R. Jones, of Dawson, for defendant in error.

Syllabus Opinion by the Court.

PER CURIAM. [1] 1. The court did not err in overruling the defendant's demurrer to the petition, or in striking, on motion of the plaintiff, paragraph 7 of the answer. Both the demurrer and the answer attacked the constitutionality of the Act of the General Assembly regulating sale of commercial fertilizers, approved August 22, 1911 (Ga. L. 1911, p. 172, §§ 2, 3, 4), the contention being that said sections "are unconstitutional and void if they can be so construed as to permit plaintiff to recover under his allegations, or if plaintiff is entitled to recover under any lawful rules promulgated by the Department of Agriculture based on said act, " because violative of the federal and state constitutional guaranties of impartial and complete protection of the law and due process of law. Held:

(a) The statute is not unconstitutional for any reason assigned. The penalty provided under the police power of the state applies alike to all persons of the same class. Moreover, It is not shown how or in what manner any constitutional guaranty is denied.

(b) Paragraph 7 of the answer did not set up any defense to the action. The penalties under the act of 1911 cannot be avoided by showing an agreement between the parties to evade the statute. Civil Code 1910, § 1794.

(c) Another ground of the demurrer attacks the allegation that the plaintiff purchased the fertilizer for $26 per ton, and that the actual value was $29.97; and it is insisted that therefore the purchaser suffered no loss or damage. Such facts could not relieve the seller from any penalty provided by the above sections of said...