Charleston & Western Carolina Railway Co. v. Pope & Fleming , 122 Ga. 577 ( 1905 )

Lamar, J.

(After stating the foregoing facts.) 1. Where the property is not found or bond is not given, the defendant in bailtrover may be committed to jail. Civil Code, § 4606. And since a corporation can not be arrested, the bail process might, to that extent, be ineffective where such company is sued as the sole tortfeasor. Compare Hall v. Barnes, 115 Ga. 945. That, however, would not prevent the suit from proceeding, nor would it prevent the company from surrendering the property and securing the-benefit of the statutory bond. The bank was vouched into court that it might set up any defense it could offer, as well as for the purpose of estopping it from attacking the correctness of the judgment in the event the plaintiff recovered. As an intervenor it took the suit as it found it. And the process not being absolutely void, where the carrier, the original defendant, yielded possession of the cotton and a bond was given by the plaintiff for the eventual condemnation-money, the holder of a bill of lading, vouched into court, can not be heard to make objections as to defects or irregularities in the pleadings or process which the corporation itself did not urge. 17 Am. & Eng. Enc. L. (2d ed.) 185. Compare Civil Code, §§ 5234, 5000, 3617, 4776, 4845, 4903.

2. Where the cash is paid there is no occasion to rely upon the Civil Code, § 3546. The section, is applicable only where the agreement to pay cash is not complied with by the vendee. Cotton is bulky. After the terms of sale have been agreed upon, it is necessary that there should be sampling, grading, weighing, and marking before there can be delivery, and delivery itself requires time. Shall a check be given or the cash be paid before delivery, at the instant the last bale is delivered, or in the usual course of business ? The statute answers this question. It clearly indicates that if the sale was to be for cash, the seller did not lose his title because he surrendered possession before he received the purchase-money. If the present case is not within the provision of the Civil Code, § 3546, there would be few, if any, transactions that would come within its terms. National Bank v. Augusta Cotton Co., 104 Ga. 403 ; Flannery v. Harley, 117 Ga. 483.

3. In Savannah Cotton Co. v. MacIntyre, 92 Ga. 169, the court had before it a by-law like that in the present record, and in effect held that it did not operate to change a cash into a credit sale. Without attempting to pass upon the validity of such a regulation, it is only-necessary to say that there is nothing in this record to show that the contract of sale was to be governed by the rules of the Exchange rather than by the laws of the State. Delivery on Saturday, check on Monday, and marking the bill “Paid” were entirely consistent with the idea of a cash sale. Checks are expected to be paid on presentation. Reliance on that, expectation, the receipt of the check, depositing it for collection or credit, and drawing against the account thus created or augmented does not make the' check payment unless it is itself actually paid. Civil Code, § 3720. The statute was intended to. meet exactly this class of cases; and the court did not err in finding that the plaintiffs had title to the cotton, good as against the railroad company, and also as against the holder of its bill of' lading. Marking the account of sales “Paid” was but in the-nature of a receipt, which was capable of explanation. There is no claim that it was exhibited to the railway company or to the bank, or that they were misled thereby or acted thereon. ■ The case, therefore, does not call for a decision as to what would have been the effect of an account of sales being thus marked, and reliance thereon by a third person. The demurrer to the petition was properly overruled. Nothing in the Civil Code, §3359, operates to change the construction previously given to the Civil Code, § 3546. Judgment affirmed.

All the Justices concur.