Meinhard-Ferst-Doyle Co. v. DeLoach
Meinhard-Ferst-Doyle Co. v. DeLoach
Opinion of the Court
The amended petition makes substantially the following case: ^The plaintiff, a corporation, is a “commission merchant or factor.” On December 20, 1912, the defendant shipped to the plaintiff five bales of cotton, to be sold by the plaintiff for the account of the defendant, at the same time drawing upon the plaintiff for $437, which the plaintiff paid. The cotton was sold during the months of August, September, and October, 1913, and the net proceeds were credited to the defendant’s account, «leaving a balance of $108.03 due by the defendant to the plaintiff. All the usual and necessary details as to dates, weights, selling prices, etc., appear in the bill of particulars annexed to the petition. The defendant’s answer admits that “the said plaintiff would be entitled to a judgment for the same unless this defendant shows to the court that he had fully paid off and discharged the said indebtedness.” The defendant’s plea of satisfaction makes substantially the following defense: that at the time the cotton was shipped to the plaintiff it was of -a grade “next to fancy,” weighed 2,180 pounds, and was then worth on the market -23 cents per pound (a total of $731.40), “and remained of such value until the said cotton was sold by the plaintiff;” that at first the defendant directed the plaintiff to -hold the cotton for 60 days, and “later” directed the plaintiff to “sell to best advantage,” and “give him credit for the proceeds of same;” that, instead of selling the cotton as directed, the plaintiff held it “for a long period of time, and finally claimed to have sold it at a price which was far below the market price, . . to the injury of this defendant, and without his consent;” that, but for the plaintiff’s said conduct the cotton would have brought $479.60 net to the defendant, after allowing for all proper expenses, etc., instead of only $360.52, as was actually realized under the plaintiff’s plan; and that, by reason of the plaintiff’s said conduct and failure to exercise ordinary care, prudence, and skill in the sale of cotton, the defendant had been damaged in the sum of $119.08; being the difference between the price the cotton should have brought and the price it did bring. The defendant prayed judgment against the plaintiff “for such an amount as he may be able to show to the court he is entitled to re
In the brief for the plaintiff in error before this court, only one ground of the motion for a new trial is insisted upon; namely, that the verdict is without any evidence to support it. An examination of the brief of evidence shows that this complainir of the plaintiff in error is well founded. The defendant took the stand as a witness in his own behalf for the purpose of establishing his affirmative plea, and the first positive and emphatic testimony given by him appears in the record here in the following language: “I can not say that these defendants [plaintiff] could have sold my cotton any time from the time I shipped it until the time it was sold for more money than it was sold for. I would not swear that they did not act in the utmost good faith. I would not swear that they did not deal with me honestly and fairly. So far as I know, I have been treated exactly right and got the best prices obtainable for my cotton.” The remainder of the defendant’s testimony is • either vague, indefinite, and conjectural, or self-contradictory. He admits, without explanation, the following correspondence between himself and the plaintiff respecting the matter in controversy: (Defendant’s letter of December 19, 1912, to plaintiff) “I am shipping you 5 b/c. It is good. Was offered 22 cents per pound for it yesterday, but not ready to sell it yet. I am drawing on you for 20c per pound, and ask you to hold about 60 days for me. Kindly honor draft.” (Plaintiff’s letter of December 20, 1912, to defendant) “We are in receipt of your letter of the 19th instant advising shipment of 5 bales of sea-island cotton, with draft against same for 20 cents per pound. This draft will be paid on presentation. We note that we are to hold this shipment for 60 days. You, no doubt, realize that the market for sea-island cotton is at present very easy, but we trust a demand will develop by the time you are ready to make sale.” (Plaintiff’s letter of January 20, 1913, to defendant) ^“We have been called on by the banks for more margin against our loans on sea-island cotton, and we find that it will be necessary to in turn call on the owners of the cotton. Your account shows a debit of $437, without interest, against 5 bales of sea-islands. As the
The defendant shows no communication from himself to the plaintiff,.except the two letters dated December 19, 1912, and May 1, 1913, respectively, which are set out above. He does not claim to have kept up his margins as requested, or to have made any response to the several letters from the plaintiff requesting him- to do so. He admits receiving from the plaintiff the letters directed to him, above set out, and then testifies: “The reason why I did not raise any objection to the price at which the cotton was sold when I received'the notices of sale, I just neglected it.” It is needless here to set out the rest of the defendant’s testimony. It is needless to set out that of another witness introduced by him. The other testimony can avail the defendant nothing. By his own solemn admissions in judicio, which have already been set out and which dispi’ove his -plea, he was precluded from establishing the defense which he attempted to set up. Where any party—plaintiff, defendant, claimant, or what not—taires the stand as a witness in his own behalf, and delivers testimony which is self-contradictory on the most material issue in the case,—the very heart of it,— 'that version of his testimony must be adopted which is most favorable to his adversary; and such a party will not be permitted to overcome Ms own adverse testimony merely by offering wit
This rule of construction is not, however, the defendant’s sole trouble in this case, though, as plainly seen, it is an all-sufficient trouble. But if his damaging admissions were removed from the record, the verdict would still be without sufficient evidence to support it. Taking all the evidence in the record, except that part of the" defendant’s testimony dealt with above, the case would then be controlled by the decision of this court in Leffler v. Pearson, 17 Ga. App. 57 (86 S. E. 256), and the authorities cited in the first and second divisions of that decision. In the case at bar the defendant not only fails to show any instruction to the factor to hold the cotton, but also fails to show any contract whereby the factor would have been bound by such instructions if given; while the uncontradicted evidence does show that the defendant failed, after due notice given, to deposit the margins necessary to hold it. He was not, therefore, under any view of the evidence, entitled to. prevail or to have any deduction from the amount of the plaintiff’s claim.
The judgment denying the plaintiff’s motion for a new trial must therefore be _ .
Beversed.
Reference
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- MEINHARD-FERST-DOYLE COMPANY v. DeLOACH
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