Southern Wholesale Corp. v. Pincus

• Decision Date: 17 September 1931
• Docket Number: No. 8168.,8168.
• Citation: 173 Ga. 421,160 S.E. 377
• Parties: SOUTHERN WHOLESALE CORPORATION v. PINCUS et al.
• Court: Georgia Supreme Court

173 Ga. 421

160 S.E. 377

SOUTHERN WHOLESALE CORPORATION

v.PINCUS et al.

No. 8168.

Supreme Court of Georgia.

Sept. 17, 1931.

Rehearing Denied Sept. 26, 1931.

Syllabus by Editorial Staff.

Error from Superior Court, Pierce County; M. D. Dickerson, Judge.

Suit by the Southern Wholesale Corporation against Abe Pincus, in which another corporation intervened. Judgment was rendered for intervener, and plaintiff brings error.

Reversed.

Blalock & Blalock, of Waycross, for plaintiff in error.

Herbert W. Wilson and Harry M. Wilson, both of Waycross, and S. F. Memory and S. Thomas Memory, both of Blackshear, for defendants in error.

ATKINSON, J.

A retail merchant, for the purpose of obtaining credit in the purchase of goods generally, made a financial statement to a corporation engaged in the business of a wholesale merchant, in which he stated that "as a part * * * of any sale made by it to me, * * *

as against any indebtedness arising out of the sale and delivery to me * * * of any merchandise by said [corporation], based on its faith in the truth of the within statement and on its reliance upon this waiver, * * * I * * * hereby waive and renounce for myself * * * and family * * * any and all homesteads and exemptions I * * * may have under or by virtue of the constitution and laws of the State of Georgia. * * * This waiver of homestead is hereby declared to be continuous in its character, and shall take effect and become operative contemporaneously with the creation and contract of indebtedness, whether evidenced by note or open account, to the same extent and as fully as though this waiver were executed concurrently with each extension of credit; and in consideration of $1.00 to me * * * in hand paid, and in further consideration of credit extended to me * * * based on this assignment of homestead and * * * exemption, and as an additional inducement to said corporation for sales of merchandise to me * * * now or hereafter, I * * * hereby sell, assign, and convey to said corporation a sufficient amount of my * * * homestead and * * * exemption to pay in full principal, interest, attorney's fees, and costs, of any indebtedness which I * * * may now or hereafter owe said corporation."

At the time of delivery of the financial statement, the retail merchant was indebted for goods bought from the corporation that were charged upon the open account, and continuously through a period of several months bought goods, and made occasional payments of specific invoices for goods that were included in the account. The retail merchant became insolvent, and in an involuntary bankruptcy proceeding in the United States District Court was adjudged a bankrupt. He made claim for a homestead exemption, consisting of a certain amount of cash and certain wearing apparel, which was duly set apart by the trustee in bankruptcy. In an equitable suit instituted in the superior court by the corporation, based on the above-described sales of goods and waiver of homestead and assignment of homestead, seeking to subject the cash set apart by the trustee in bankruptcy to payment of the account, another corporation intervened, declaring upon a homestead waiver and an assignment of property that might be set aside to the maker, made in a financial statement by the defendant to such other corporation, subsequently to that made to the plaintiff. \ All parties agreed that the last mentioned waiver and assignment were valid; but the plaintiff insisted that its assignment, being senior, was entitled to the fund. The judge, trying the case by consent without a jury, found that the waiver of exemption of homestead andthe assignment of property that might be set aside as exempt had reference to a general line of credit; that the payments made by the defendant extinguished all debts existing at the time of executing the financial statement; that the balance due the plaintiff represented a debt incurred for the purchase of goods after execution of the statement; and that as to the unpaid portion of the debt the waiver and assignment of the homestead exemption were void. Judgment was rendered for the intervener for the amount of its debt to be paid out of the fund, and against the plaintiff for any amount. To this judgment the plaintiff excepted, and assigned error on, the ground...