Planters Warehouse Co. v. Hardin , 30 Ga. App. 459 ( 1923 )

Beix, J.

1. “ 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, can not, 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 thirty days to such owner of the intention to sell. If there be a special contract, then the parties will be governed by its terms.” Whigham v. Fountain, 132 Ga. 277 (1) (63 S. E. 1115).

2. “ 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 entrusted 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 eover such advances and expenses. 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.” Whigham v. Fountain, supra.

3. i“ Where a cotton factor makes with his principal an express contract to hold the cotton until instructed by his principal to sell, if the factor sells in the absence of instructions from the principal, the latter may recover whatever damages he has sustained.” Wood v. Jones, 10 Ga. App. 735 (1) (73 S. E. 1099). See also Brown v. McGran, 14 Peters (U. S.), 479 (10 L. ed. 550); Gordon v. Cobb, 4 Ga. App. 49 (2) (60 S. E. 821); Campbell v. Redwine, 22 Ga. App. 455 (1) (96 S. E. 347).

Decided June 25, 1923. Colley <& Colley, William Wynne, for plaintiff in error. Clement E. Button, contra.

4. This was an action for damages on account of the alleged unauthorized sale by the defendant of cotton deposited by the plaintiff and on which the plaintiff had procured of the defendant a loan. The verdict was in favor of the plaintiff, and the defendant excepts to the overruling of its motion for a new trial, which contained the general grounds only. ' The sale was without notice or advertisement. The evidence did not demand the conclusion that the plaintiff was more than a mere warehouseman, and while it was inferable that it was also a factor and commission merchant, there was some proof of a “ special contract between the principal and factor, limiting and defining the powers of the factor,” and of the violation of the contract by defendant in the sale. The verdict was supported by the evidence, whether the defendant was warehouseman only or whether it was also a factor.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.