Whigham v. Fountain

• Decision Date: 10 March 1909
• Citation: 63 S.E. 1115,132 Ga. 377
• Parties: WHIGHAM . v. FOUNTAIN.
• Court: Georgia Supreme Court

63 S.E. 1115

132 Ga. 377

WHIGHAM .

v.FOUNTAIN.

Supreme Court of Georgia.

March 10, 1909.

1. Warehousemen (§ 33^*)—Sale of Property —Advances—Lien—Enforcement.

A mere warehouseman with whom cotton is stored to be held for the owner, and who makes advances and retains the cotton as security for the debt, cannot, in the absence of a contract otherwise providing, sell the cotton until after the maturity of the debt, and then only at public sale to the highest bidder, after giving notice for 30 days to such owner of the intention to sell. If there be a special contract, then the parties will be governed by its terms.

[Ed. Note.—For other cases, see Warehousemen. Cent. Dig. § 70; Dec. Dig. § 33.*]

2. Pledges (§ 31*)— Unauthorized Sale by Pledgee—Conversion.

"If a pledgee by an unauthorized sale puts it out of his power to restore the property upon payment or tender of the debt secured, he is liable for its conversion, without a demand and tender of performance by the pledgor."

[Ed. Note.—For other cases, see Pledges, Cent. Dig. § SG; Dec. Dig. § 31.*]

3. Factors (§ 47*)—Advances — Lien — Enforcement— Sale of Property.

If a warehouseman be also a factor and commission merchant—that is, if he not only receives goods and merchandise to be stored for hire, but is also an agent intrusted with the possession, control, and disposal of goods of his principal for a commission—then he has a lien on the property of the principal in the possession of the factor for all advances made thereon and expenses incurred in respect thereto, and, as a general rule, may sell, in accordance with the usages of trade, a sufficiency of the property to cover such advances and expense. If, however, there be a special contract between the principal and his factor, limiting and defining the powers of the factor, the parties will be bound by its stipulations, though contrary to the general rule.

[Ed. Note.—For other cases, see Factors, Cent. Dig. § 71; Dec. Dig. § 47.*]

(Syllabus by the Court.)

Error from Superior Court, Pulaski County; J. H. Martin, Judge.

Action by L..W. Whigham against A. T. Fountain. Judgment for defendant, and plaintiff brings error. Reversed.

Whigham brought an action against Fountain, as surviving partner of Fountain & Hendley. The material substance of the petition was: Plaintiff on November 1, 1904, placed with Fountain & Hendley, for storage in their warehouse, 10 bales of cotton of designated numbers and weights, upon which they advanced to him $360, plaintiff leaving with them in pledge and to secure such advances the warehouse receipts for the cotton, it being expressly agreed between plaintiff and such firm that the cotton was not to be sold to cover the advances, except by plaintiff's consent and after due notice to him. On April 15, 1905, Fountain & Hendley, without advertisement, without notice to plaintiff, and without his authority or consent, converted the cotton by selling the same and applying the proceeds thereof to the payment of the advances which they had made on it. Plaintiff claimed title to the cotton so converted, and defendant's firm refused to deliver the same to him or to pay him the value thereof. Plaintiff elected to take the value of the cotton and prayed judgment for such, less the $360 advanced to him by said firm. Defendant admitted selling the cotton without advertising the sale and without notice to plaintiff and without his consent, but denied that there was any contract, either express or implied, between the plaintiff and the defendant's firm that it was not to be sold without the consent of or notice to plaintiff. Defendant alleged that the cot-ton was sold to reimburse his firm for the advances made thereon and brought $296.44, which left a balance due the firm by plaintiff of $63.56. Upon the trial there was a verdict for the defendant, and the plaintiff's motion for a new trial having been overruled, he excepted.

Herbert L. Grice, for plaintiff in error.

W. H. Boyer, for defendant in error.

FISH, C. J. (after stating the facts as above). One of the grounds of the motion for a new trial was that the court erred in charging the jury as follows: "A warehouseman is a depositary for hire; and if you believe from the evidence that Whigham, the plaintiff, deposited this cotton with the warehousemen, ...