Planters Warehouse v. Sims , 35 Ga. App. 212 ( 1926 )

Jenkins, P. J.

*1. “An action of trover against the warehouseman, to recover the property represented by the receipt, is an appropriate remedy, where he fails or refuses, on demand, to deliver the property to the holder of the receipt.” Bank of Sparta v. Butts, 4 Ga. App. 308 (6) (61 S. E. 298).

2. Proof of failure to surrender the property on demand establishes a prima facie case of conversion.

3. No defense is established by showing that the property has not been applied to the defendant’s use; since any misfeasance amounting to an unauthorized use or disposition of the property or any portion thereof, or exercise of dominion over it, constitutes a legal conversion. Farkas v. Powell, 86 Ga. 800 (13 S. E. 200, 12 L. R. A. 397; 26 R. C. L. 1098, § 3).

4. Accordingly, in such a suit, where the defendants failed to deliver the property on demand in accordance with the terms of the storage agreement, they, as warehousemen, can not overcome the prima facie ease against them on the theory of disproving a conversion, where their pleadings and proof show that after separating and removing the portions of the plaintiff’s cotton which had been allowed to rot while in storage, they proceeded to sell the damaged portion and allowed the remainder to become so commingled with other cotton that it was impossible for them to identify and produce it, and where it does not appear that such repacking, sale, and commingling were acts such as were contemplated as being within the scope of the storage agreement, or that they were so specially authorized by the plaintiff. See Berney v. Marks, 69 N. Y. Supp. 993 (34 Misc. 527).

5. It follows that the court did not err in assuming that a conversion had been shown, and restricting the issues submitted to the jury to the personnel of the defendant partnership and the value of the converted cotton.

Judgment affirmed.

Stephens and Bell, JJ., concur. G. A. Johns, B. JG. Kimball, for plaintiffs in error. Joseph D. Quillian, contra.