Southern Cotton Oil Co. v. Raines
| Docket Number | 7443. |
| Decision Date | 13 September 1930 |
| Parties | SOUTHERN COTTON OIL CO. v. RAINES. |
| Court | Georgia Supreme Court |
Rehearing Denied Sept. 29, 1930.
Syllabus by Editorial Staff.
Demurrer filed after first term and after Supreme Court's decision sustaining judgment overruling demurrer filed at first term held not filed within time (Civ. Code 1910, § § 5630, 5632).
Motion to dismiss in nature of general demurrer, filed after first term and after Supreme Court's decision overruling previous demurrer, held properly overruled as founded on matter not appearing on petition (Civ. Code 1910 § 5629).
Judgment sustaining constitutionality of statute held conclusive in subsequent trial of same case.
Answer at second trial held amendable after first term, and after Supreme Court's decision reversing judgment, to attack constitutionality of statute not involved at first trial (Civ. Code 1910, § § 1790, 5640, 5681).
Defendant in answer may raise constitutionality of statute materially affecting defense (Civ. Code 1910, §5632).
Statute requiring issues of law to be raised by demurrer is mandatory only as to demurrers going to form of pleading (Civ. Code 1910, § 5632).
Ruling excluding private analysis of fertilizer where there is official analysis provided by statute became law of case, and constitutionality of statute could be questioned at second trial (Civ. Code 1910, § 1790).
Statute making official analysis of fertilizers conclusive evidence is unauthorized in vasion of courts and void as violating due process (Civ. Code 1910, § 1790).
Civ Code 1910, § 1790, provided that if analysis showed fertilizer sold comes up to guaranteed analysis, statement so sent by state chemist shall be conclusive evidence against plea of partial or total failure of consideration, and that statement of state chemist transmitted to ordinary shall be conclusive evidence of facts, whether evidence of indebtedness is held by innocent third party or not.
Strict compliance with statute is required to recover penalties.
In action to recover for deficient fertilizer, inspector's report on fertilizer was not rendered inadmissible because inspector did not know number of packages intended to be inspected (Civ. Code 1910, § 1781).
Report of fertilizer inspector held inadmissible in action to recover for deficient fertilizer, where samples were drawn in paper bags and carried elsewhere for final preparation (Civ. Code 1910, § 1781).
Civ Code 1910, § 1781, provided that samples of fertilizers should be placed in bottles at time they were drawn from packages, and that after all samples were drawn they should be thoroughly mixed and from mixture two samples should be drawn and two sample bottles filled and marked.
Former decision by Supreme Court at first trial held not to effect objection to evidence not made on first trial.
Evidence of statements by fertilizer inspector that he did not know number of sacks sampled was admissible to contradict inspector's testimony that he sampled requisite percentage of sacks (Civ. Code 1910, § 1781).
Where plaintiff sued to recover damages for deficiency in fertilizer, admissions of plaintiff that he had analysis of fertilizer and that "it run mighty good" were admissible.
Fertilizer analysis possessed by plaintiff suing for deficiency in fertilizer held admissible in connection with plaintiff's admissions that it was good.
Fertilizer analysis possessed by plaintiff suing for deficiency in fertilizer held admissible in connection with plaintiff's admissions without showing analysis was based on samples provided by law (Civ. Code 1910, § 1781).
Parties to suit to recover penalty for deficient fertilizer held not restricted to evidence of official analysis by state chemist in proving insufficiency of ingredients (Acts 1911, p. 172, § § 2-4).
Testimony concerning analysis made by seller sued for deficiency in fertilizer held admissible, though not made as required by law (Acts 1911, p. 172, § § 2-4).
Penalties provided by statute for deficiency in fertilizer sold could not be enlarged by adding interest (Acts 1911, p. 172, § § 1-4; Civ. Code 1910, § § 3434, 4396).
Purchaser's resale of part of fertilizers would not affect purchaser's right to recover statutory penalties for deficient fertilizer (Acts 1911, p. 172, § § 1-4).
Error from Superior Court, Terrell County; M. J. Yeomans, Judge.
Action by T. B. Raines against the Southern Cotton Oil Company. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error.
Reversed.
W. H. Gurr and R. R. Marlin, both of Dawson, and Harold Hirsch and J. P. Stewart, both of Atlanta, for plaintiff in error.
R. R. Jones, of Dawson, for defendant in error.
Syllabus OPINION.
It is provided in section 1 of the act of 1911 (Acts 1911, p. 172) that commercial fertilizers as therein described, which are sold or offered for sale in this state, shall "have plainly marked or branded, by attaching a tag upon each sack or package thereof the sources and ingredients from which the available phosphoric acid, potash, and nitrogen respectively is generated and obtained." In section 2 of the act it is provided that if any such fertilizers or material shall prove deficient in any of its ingredients as "guaranteed or branded by attaching a tag or tags upon the sacks or packages containing the same," and if by reason of such deficiency the "commercial value" of such fertilizers shall fall more than 3 per cent. below the guaranteed commercial value, the vendor "shall be liable in damages to the purchaser *** in a sum of twenty-five per cent. of the purchase price plus the shortage of such commercial fertilizer." In section 3 it is provided that any manufacturer, manipulator, dealer, or vendor of such fertilizers who publishes, by branding or by attaching a tag or tags upon the sacks or packages of fertilizers, "a false or incorrect analysis of the components and ingredients thereof shall be liable in law to any and every purchaser of such falsely and incorrectly branded or tagged fertilizer in a sum of twenty-five per cent. of the purchase price plus the shortage of such commercial fertilizer." In section 4 it is declared that "a deficiency of more than ten per cent. below the guaranteed analysis of the fertilizers as published and branded or tagged on the sacks or packages thereof shall be held and declared by the courts of this State to constitute a false and incorrect publishing, branding or tagging within the intent, purpose and meaning of this Act." A purchaser of commercial fertilizer brought suit against his vendor for damages (a) for alleged shortage of actual commercial value amounting to 3 per cent. less than the "guaranteed commercial value," and also for 25 per cent. of the purchase price on account of such shortage; also for 25 per cent. of the purchase price on account of publication of a false analysis of the fertilizer which was alleged to have fallen off more than 10 per cent. in nitrogen indicated by the brand on the tags. In a general demurrer to the petition it was alleged that the action was brought under sections 2, 3, and 4 of the said act of the Legislature, and that said sections were void as being repugnant to article 1, § 1, paragraph 2, of the Constitution of the state, because they do not afford defendant impartial and complete protection; also as being repugnant to article 1, § 1, paragraph 3, of said Constitution, because enforcement of said laws will deprive defendant of his property without due process of law; also as being repugnant to section 1 of the Four-teenth Amendment to the Federal Constitution, because enforcement of said laws will deprive defendant of his property without due process of law, and because it will deny defendant the equal protection of the laws. The demurrer was overruled. On the trial a verdict was directed for the plaintiff. The defendant excepted to the overruling of a motion for a new trial, and assigned error also on the overruling of the demurrer. The latter judgment was affirmed, but for other reasons there was a reversal of the judgment directing the verdict. Southern Cotton Oil Co. v. Raines, 167 Ga. 880, 147 S.E. 77, 79. When the case came up for trial again, several terms after the appearance term, the defendant filed a general demurrer and a motion to dismiss the petition, and an amendment to the original answer, in each of which it was alleged that the above-mentioned sections of the act of 1911, and also section 1790 of the Civil Code of 1910, are violative of the State and Federal Constitutions, for various reasons. Each of the foregoing pleadings were overruled, and after hearing evidence a verdict was again directed for the plaintiffs. The defendant's motion for a new trial was overruled. In a bill of exceptions error was assigned on the judgment refusing a new trial, and also on the preliminary ruling on the pleadings. Held:
1. The demurrer filed subsequently to the first term, and after decision of this court sustaining the judgment of the trial court overruling the demurrer filed at the first term, was properly overruled on the ground that it was not filed within the time provided by law. Civil Code 1910, § § 5630, 5632; Mayor, etc., of Cartersville v. Maguire, 84 Ga. 174, 10 S.E. 603. See also Battle v. Warren County Fertilizer Co., 155 Ga. 650(1), 118 S.E. 362, and cit.; Richmond & Danville R. Co. v. Mitchell, 95 Ga. 78, 22 S.E. 124. The case differs from Stovall v. Caverly, 139 Ga. 243, 77 S.E. 29, in which the grounds of general demurrer were enlarged after the first term, but before decision of the questions raised by the demurrer.
2. The motion to dismiss in the nature of a general demurrer to the petition filed at the stage of ...
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