Whigham v. Fountain

• Decision Date: 10 March 1909
• Parties: WHIGHAM v. FOUNTAIN.
• Court: Georgia Supreme Court

63 S.E. 1115

132 Ga. 277

WHIGHAM v. FOUNTAIN.

Supreme Court of Georgia

March 10, 1909

Syllabus by the Court.

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. ^[*]]

"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. § 86; Dec Dig. § 31. ^[*] ]

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. ^[*] ]

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.

Herbert L. Grice, for plaintiff in error.

W. H. Boyer, for defendant in error.

FISH C.J.

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, the defendants, and drew a certain sum of money on it, and that it was to be and remain there as security for the money borrowed, then the plaintiff would have no right to bring an action to recover the cotton until he had paid these advances, and all storage charges, or tendered the same." The court erred in giving this charge. If Fountain & Hendley were merely warehousemen, and plaintiff left the cotton with them for storage, and they subsequently advanced him money on it, taking the warehouse receipts as collateral for the payment of the money so advanced, then, in the absence of a special contract, the warehousemen could only sell after maturity of the debt at public sale to the highest bidder, after giving notice to Whigham of intention to sell. Civ. Code 1895, § 2958; Halliday v. Bank of Stewart County, 112 Ga. 461, 37 S.E. 721. If there were a special contract, as the plaintiff contended, then, of course, the parties would be bound by its terms; and, if its terms were such as plaintiff alleged Fountain & Hendley, even though they acted in the matter both as warehousemen and factors, could not sell without notice to and consent of the plaintiff. And if they, by an unauthorized sale, put it out of their power to restore the property upon payment or tender...