Whigham v. Fountain

(After stating the facts.) 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 *279on 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. Civil Code, §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 of the amount of the debt secured, they were liable for its eonversipn, without a demand and tender of performance by Whig-ham. Jones, Pledg. & Col. Sec. §571 a; Van Arsdale v. Joiner, 44 Ga. 173; Waring v. Gaskill, 95 Ga. 731 (22 S. E. 650); Harrell v. Citizens Banking Co., 111 Ga. 846 (36 S. E. 460). If the relation between Whigham and Fountain & Hendley were that of principal and factor, that is, if Fountain & Hendley were entrusted with the possession, control, and disposal of the cotton, for a commission, for the benefit of Whigham, then such firm had a lien upon the cotton in their possession for all advances made thereon and expenses incurred in connection therewith, and, in the absence-of a special contract, had the right to sell the cotton in accordance with the usages of the trade, for reimbursement for such advances and expenses. If there were a special contract, then it would govern, though contrary to the general rule. In the absence of a special contract, the only way in which Whigham could have defeated the right of Fountain &. Hendley, if they were factors, to sell a sufficient amount of the cotton to discharge the sum due them for expenses and advances, would be to pay or tender to such firm an amount that would discharge the indebtedness.) Heard v. Russell, 59 Ga. 25 (12); Willingham v. Rushing, 105 Ga. 72, 75 (31 S. E. 130).

The instructions given by the trial judge in Tyus v. Bust, 43 Ga. 529, which were similar to the charge excepted to in the present-case, were not approved by this court; as it was merely held in -that ease that the charge given, when considered, as a whole, was not erroneous. Judgment reversed. '