Tyus v. Rust

• Citation: 43 Ga. 529
• Parties: JOHN G. TYUS, plaintiff in error. v. Y. G. RUST, defendant in error.
• Decision Date: 31 July 1871
• Court: Supreme Court of Georgia

43 Ga. 529

JOHN G. TYUS, plaintiff in error. v. Y. G. RUST, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1871.)

Bailment. Evidence, etc. Warehousemen. Factors. Before Judge Harrell. Dougherty Superior Court. March, 1871

Tyus brought trover against Rust for certain bales of cotton. On the trial the following facts appeared, about which there was no controversy. Sims & Rust were warehousemen and commission merchants, and had usually sold Tyus' cotton for him. In the winter of 1862-3, Tyus was moving from the county, and delivered said cotton to them and took their warehouse receipt therefor, in which it was stated that the cotton was "subject to this receipt or his order, on paying customary charges and all advances." They then let Tyus have $1,000 00. One Collins was present when the cotton was delivered and the money taken. Cotton was then worth fourteen cents per pound; Tyus said he would not sell till he could get eighteen cents per pound, and Sims & Rust did sell it in March 1863, for nineteen and half cents per pound. Sims died. Tyus demanded this cotton from Rust, and, on his failure to deliver it, sued him.

Collins testified that Tyus told Rust that he did not wish to sell because cotton was too low, but wanted $1,000 00, and would leave Collins as his agent, and if Rust needed the $1,000 00 before the cotton was sold to let him know and he would repay it, even if it rendered a sale of the cotton necessary; he did not hear Tyus authorize Rust to sell the cotton, but did hear him tell Rust that he, Collins, was his *agent to control the cotton. Tyus told Collins to sell if he could get eighteen cents per pound, and Collins did try to sell at that price, but failed.

Tyus testified that he told Rust that he wished to store his cotton, as he was leaving the county. He said when he got the $1,000 00 it was not as an advance on the cotton, but was borrowed by his telling Rust that Collins would sell Tyus' corn and repay it and if Collins failed and Rust needed the money and would notify him he would repay him, even if he had to sell cotton. He said Collins heard all this. At the time of storing he owed Sims & Rust $300 00. Further, he said that in May, 1863, Collins tendered Rust the $1,000 00, and demanded the cotton, but he said Tyus owed him nothing, but that he had a balance due Tyus, and that he could not deliver because of said sale. But he said Rust admitted he had no authority to sell.

Rust testified that Tyus told him to sell his cotton at eighteen cents, and got an advance of $1,000 00 on it; all said and done in presence of Collins, and Rust understood that Collins was only authorized to receive proceeds when the sale might occur. He did not sell to pay said advance, but in obedience to said instructions. He denied that any offer had been made of storage, or advances or other thing before this suit was brought, and denied that anything was said about selling corn to pay the $1,000 00.

For requests to charge, and the charge as given, see the motion for new trial. There was a verdict for defendant. Plaintiff moved for a new trial upon the following grounds:

1st. That the Court erred in charging the jury that before plaintiff could recover he must show that he paid the charges for storage and advances, or tendered the money for said charges and advances.

2d. That the Court erred in charging the jury that if the defendant received the cotton as a warehouseman, or as a factor and commission merchant, or as a special bailee, he was entitled to retain the same until the charges which had *accrued thereon, up to the time of the demand, were paid or tendered by plaintiffs.

3. That the Court erred in charging the jury under the facts in this case, that if the cotton in dispute was delivered to defendant as a warehouseman, he had no right to sell it, but if it was delivered to defendant as a factor, he had a right to sell the cotton to cover the charges and advances, without charging that his right to sell was only to sell enough of the cotton to pay the charges and advances, and before doing this it was his, defendant's, duty to notify plaintiff of his demands for charges and advances and that, unless they were paid, he should be compelled to reimburse himself by a sale of a sufficient portion of the cotton.

4. That the Court erred in charging the jury, as requested by counsel for defendant, that the plaintiff is not entitled to recover "the cotton from the defendant, or any other thing in lieu thereof by way of damages—if at the time of the commencement of this suit, there were any sum or sums due defendant for advances made by Sims & Rust to said plaintiff, or for expenses and storage on said cotton, unless the plaintiff had, prior to the commencement of said suit, paid said amounts, or offered to do so, unless he converted said cotton without or against instructions from the plaintiff.

5. The Court erred in refusing to give the following charge as requested by plaintiff's counsel, but...