Padgett v. Ford , 117 Ga. 508 ( 1903 )

Lamar, J.

The right to appeal is fixed by the pleadings, and not by the amount of final judgment. Where an attachment for .more than $50 is levied on property worth less than $50, and a claim thereto is filed, and judgment for less than $50 is rendered in favor of the plaintiff in attachment, and subsequently, on the trial of the claim case, the property is found subject to the attachment, the claimant may appeal to the superior court. Taylor v. Blasingame, 73 Ga. 112; Bell v. Davis, 93 Ga. 233 ; Civil Code, § 4453; Thurman v. Gargill, 54 Ga, 663.

Padgett furnished the timber. Parker was to cut, haul, and deliver ties to Padgett, who was to sell the same and then divide the profits. The parties did not regard themselves as partners, did not work together in the enterprise, as in Adams v. Carter, 53 Ga. 160, and Urquhart v. Powell, 54 Ga. 30 ; nor was Padgett bound to pay .any part of the expense of feeding the stock, or to bear any of the .cost of hauling and delivering, as in Holifield v. White, 52 Ga. 567. Parker took no title to the ties, and had no right to sell them. He was not treated as principal or co-owner. His only interest being in the money that arose from the sale; and that interest was intended as compensation for his labor and services. Civil Code, §§ 2629,2626. It is now the settled law of this State, that if one furnishes land or material and another does the labor necessary to produce the thing to be sold, and the latter receives a part of the profits as compensation for his services, no partnership is created. Thornton v. McDonald, 108 Ga. 3 ; Thornton v. George, 108 Ga. 9 ; Cherry v. Strong, 96 Ga. 185 ; Jordan v. Jones, 110 Ga. 47. The analogous rule'as to croppers, laid down in Appling v. Odom, 46 Ga. 583, has been codified. Civil Code, § 3131. If, then, there-was no partnership, Parker had no right to sell; and even if he procured a bill of lading in his own name, he could not, by delivering the ties and bill of lading to an innocent purchaser, divest the title of the true owner, who could have maintained trover against Parker, or against Ford, the purchaser. But he was not bound to-do so. He could waive the tort, adopt the transaction, and institute an action of assumpsit against Parker. When he made this election, sued out an attachment for the purchase-money of the cross-ties, had the attachment levied thereon as the property of Parker, and obtained a judgment subjecting them to the payment, of the purchase-money debt, he could not be heard afterwards to-deny that they had been the property of Parker. Civil Code„ §§ 3811,3903 ; Cragg v. Arendale, 113 Ga. 181; Cooley on Torts,. * 92. In such a case Ford as the purchaser from Parker obtained a title, whether he had notice' of the relation between Padgett and Parker or not; and the court properly directed a verdict in favor of' Ford as claimant. Judgment a firmed.

By five Justices„