Brown v. Salter ( 1939 )

Sutton, J.

1. “If on the consummation of a sale of merchan-' dise the buyer retains out of the money to be paid a specific sum for the purpose of paying a processing tax, whereas such tax is invalid and therefore is not paid by the buyer, and the buyer continues to retain the sum so withheld, the seller may recover same as unpaid purchase-money.” Salter v. Brown, 56 Ga. App. 792 (193 S. E. 903). Whether the buyer retains a part of the purchase-money for the genuine purpose of paying a processing tax, or merely retains such sum under a pretext of having to pay a processing tax, the seller is entitled to a return of the money if it is in fact not paid out but retained by the buyer after the processing tax act is declared invalid, even assuming, but not conceding, that under the terms of the act the grower and seller of the peanuts was subject to the tax.

2. The jury was authorized to find from the conflicting evidence in the-present case that on November 6, 1935, the plaintiff sold to the defendant 7775 pounds of Spanish peanuts and 9720 pounds of runner peanuts at the “market price” then existing; that the defendant paid the plaintiff $63 per ton for the Spanish peanuts and $53 per ton for the runner peanuts after deducting $20 per ton, or $174.95, the amount sued for in the present case, with the explanation that such deduction represented the amount of a “processing tax” which, under the so-called agricultural adjustment act, he would have to pay on the peanuts to the United States Government; that the market price, at the time of the sale, exclusive of the alleged processing tax, was $85 per ton for the Spanish peanuts'and $75 per ton for the runner peanuts; that the defendant, in an equitable suit against the collector of internal revenue for the District of Georgia, filed on September 16, 1935, and subsequently amended, in the District Court of the United States for the Columbus Division of the Middle Georgia District, attacked the so-called agricultural adjustment act of Congress, under which processing taxes were levied in certain cases, as being unconstitutional and void, and prevailed in said suit, the court, on January 24, 1936, permanently enjoining the collection of processing taxes from the petitioner, the defendant in the present suit, and ordering to be returned to him, less certain fees of the clerk of the court, certain funds which as processing taxes had been paid into the registry of the court pending a decision of the case; that such funds were in fact returned to him; that the amount deducted from the purchase-price of the peanuts delivered to the defendant by the plaintiff, $174.95, being $20 per ton on 17,495 pounds of peanuts, was retained by the defendant and not paid to the United States Government as a processing tax as he alleged would be necessary when purchasing the peanuts from the plaintiff; and under such evidence and the principle of law announced in the first paragraph the jury was authorized to find that the sum of $174.95 was due to the plaintiff from the defendant as part of the unpaid purchase-price of the peanuts delivered under the sale of November 6, 1935, and to return a verdict in favor of the plaintiff accordingly.

3. The grounds of the motion assigning error on various portions of the charge of the court are without merit. The court gave to the jury substantially correct instructions as to the law applicable to the case under the pleadings and the evidence. Taken in connection with the entire charge and the evidence, we do not think that they could be said to have confused or misled the jury as to the issue involved, but were proper instructions under the pleadings and the evidence.

4. The ground of the motion complaining that the court erred in admitting certain documentary evidence, in that it was “irrelevant and immaterial,” is too general and in law insufficient to present anything for consideration. Interstate Life &c. Co. v. Stonecypher, 54 Ga. App. 497, 506 (188 S. E. 294), and cit.

5. Two other grounds of the motion for new trial, not being argued or insisted on, are treated as abandoned.

Judgment affirmed.

Stephens, P. J., and Felton, J., concur.