Bartow Guano Co. v. Adair , 29 Ga. App. 644 ( 1923 )

Bell, J.

(After stating the foregoing facts.) It was the right of the plaintiff under the law to make an amendment of the nature indicated in the foregoing statement. In the case of Akin v. Ordinary, 54 Ga. 59 (4), (5), it was said: “If a plaintiff should sue on a promissory note in the statutory form which the law requires to be stamped, and the note could not be read in evidence for the want of a stamp on it, the plaintiff might amend his declaration by adding the common count of money had and received of the plaintiff, or paid by the plaintiff for the use and benefit of the defendant, and .on proof thereof would be entitled to recover,” In Bright v. Central City Street R. Co., 88 Ia. 535 (15 S. E. 12), it was said: “ It has been repeatedly held by this court that a suit upon a note, even in the statutory form, can be amended by a count for money had and received, or other count, provided the original cause of action be adhered to.” See also Lewis v. Harper, 73 Ga. 564 (2); Cox v. Ga. R. &c. Co., 139 Ga. 532, 535 (77 S. E. 574); Civil Code (1910), § 5513. An amendment of the character indicated is not objectionable as setting up a new cause of action, simply because the original suit is upon a note which bears interest at the rate of 8 per cent, per annum, and provides for the payment of attorney’s fees, while the implied obligation alleged in the new count carries interest only at the rate of 7 per cent, per annum under the law, for the plaintiff can waive his right to the higher rate of interest, and also the attorney’s fees. See, in this connection, Ga. Iron &c. Co. v. Ocean Accident &c. Cor., 133 Ga. 326 (2) (65 S. E. 775).

Sections 1796 et seq. of the Civil Code (1910) provide for the sale of fertilizer materials in bulk not for resale but for nse by purchasers upon their own lands. In such a transaction the seller is required to comply with these sections, and not with previous sections, 1771 et seq. Codman v. Roberds, 27 Ga. App. 559 (2) (109 S. E. 536). Section 1797 is as follows: “The commissioner of agriculture of this State shall have authority to establish such rules and regulations in regard to the registration, inspection, sale and analysis of acid .phosphate or other fertilizer materials, in bulk, sold to persons, individuals, or firms who desire to' purchase and use the same as provided in the preceding section, as shall not be inconsistent with the provisions of this section, and as in his judgment will best carry out the requirements thereof.”

It is to be observed that the rule of the commissioner of agriculture must be read into this section. This rule is set out in the statement of facts preceding this opinion and provides that a manufacturer can mix the materials as the purchaser may request, but that the mixture shall not be subject to inspection or analysis by the State department. A failure to comply with these sections is made a misdemeanor under § 1799, and, if a want of compliance ■therewith is shown, the transaction will be illegal and a defense on that ground will be good. It is pertinent for these observations to be made in determining whether or not the court was right in granting the nonsuit.

One ground of the demurrer objects to the failure of the amendment to allege that the fertilizer known as “ Eed Chief,” the value of which is also sued for in the amendment, “was duly analyzed as required by law and that the name of said fertilizer -and the guaranteed analysis was branded on each sack or parcel or package stating definitely the source from which the phosphoric acid, nitrogen and potash was derived, and because . . it is not alleged what brand was sold to defendant.” A decision of the question raised by the demurrer makes it necessary to determine whether in a suit upon a quantum valebat for the value of fertilizers it is the burden of the plaintiff to prove a compliance with § 1771 et seq. of the code in order to be entitled to recover. It was held in Lorentz v. Conner, 69 Ca. 761, Young v. Murray, 3 Ca. App. 204 (59 S. E. 717), and Holt v. Navassa Guano Co., 114 Ga. 666 (40 S. E. 735), that in a suit for the purchase price of fertilizer the burden is upon the defendant to establish such a want of compliance with the law by tbe seller. It is true that in each of these cases the suit was upon a note, but we have examined the records of file in the cases of Griner v. Baggs, 4 Ga. App. 232 (61 S. E. 147), and Avera v. Tool, 74 Ga. 398, and find that in each of these the suit was upon an open account. In the case of Griner v. Baggs, it was held: “ Where a purchaser of fertilizers defends against the payment of the price on the groud that the fertilizers were not tagged or branded as required by law, before they were offered for sale, the burden is on him to establish the defense.” And in the case of Aver a v. Tool it was held: " In order to maintain a suit for the price of fertilizers, it was necessary for the plaintiffs to allege and prove that the fertilizer sold had been inspected, tagged, and branded; and a motion for nonsuit, on the ground of the want of such pro.of, was properly overruled. The want of inspection, tagging and branding is matter for plea, and the burden of proving it rests on the defendant.” Therefore the burden of proof is upon the defendant to show a want of compliance with the statutes in reference to the sale of fertilizers whether the suit is upon a promissory note for the purchase price or upon an open account. And consequently we must hold that the burden is not upon the plaintiff in a suit upon a quantum valebat to prove that he has complied with the law with reference to the inspection, branding, and analysis; the burden to show the contrary being upon the defendant, especially under the last two decisions referred to. In the nature of the particular proceedings, if it is not a burden of the plaintiff to prove these things as a part of his ease, it is not necessary that the plaintiff shall allege them. And we think the burden of proof must be determined by the same principles where the suit is for the sale of fertilizer materials in bulk.

We must say, however,, that if it appears by the evidence, no matter by whom it is offered, that the plaintiff has not complied with the law which imposes certain duties upon him in respect to the sale of fertilizer or fertilizer materials in bulk, he is, upon the merits, in no better position in a suit upon a quantum valebat than he would be in a suit upon a note, except to avoid the possible consequence of an entire contract. If the fertilizers or materials are sold illegally, there can be no recovery therefor any more by one sort of action than by another. The laws which make penal the sale of fertilizers or fertilizer materials in bulk do not refer simply to sales which may be evidenced by promissory notes for the purchase price, but refer as well to sales upon account or to transactions on which the plaintiff seeks to recover upon a quantum valebat. If the goods are sold in violation of the penal laws, they can have no recoverable value so far as the plaintiff is concerned, whether the suit proceeds under § 5513 by virtue of which the quantum valebat is declared upon, or otherwise. See, in this connection, International Agricultural Cor. v. Spencer, 17 Ga. App. 649 (87 S. E. 1101).

In a suit upon a note for the purchase price of various kinds and quantities of fertilizers, the price of which is stated only in the aggregate, there can be no recovery for any of the fertilizer, the purchase price of which is sued for, if sold in violation of the law. The contract sued upon, being entire, must fail altogether if the consideration is in any part illegal. Allen v. Pearce, 84 Ga. 606 (10 S. E. 1015). “A contract may be either entire or severable. In the former, the whole contract stands or falls together. In the latter, the failure of a distinct part does not void the remainder. The character of the contract in such a case is determined by the intention of the parties.” Civil Code (1910), § 4228. “ If the consideration be good in part and void in part, the promise will be sustained or not, according as it is entire or severable, as hereinafter prescribed. But if the consideration be illegal in whole or in part, the whole promise fails.” Civil Code, § 4247. See also Civil Code, § 4251. Upon a quantum valebat the plaintiff .could recover the Value of any goods sold in compliance with the law although the value of goods sold in violation of the law (and for which, for that reason, no recovery can be had) be sued for therein, provided the contract of sale was severable. If the two classes of goods were sold together under an entire contract, the whole case must fail upon the new count, the quantum valebat, under the same principles as must apply to the original declaration upon the note. These conclusions we think are obliged to follow from the code sections which we have referred to. See also, in this connection, Frick v. Moore, 82 Ga. 159 (8 S. E. 80).

The first count, as stated, is unquestionably upon an entire contract. In proceeding upon the second count an examination of the original transaction should be looked to in determining whether the contract of sale was entire or severable. The contents of the original order for the goods, which plaintiff contended was lost, might throw some light upon this question.

Under the principles above announced there was no error in overruling the defendant’s demurrer.

Judgment reversed on main lilt of exceptions; affirmed on cross-bill.

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