Postell v. Val-Lite Corporation , 78 Ga. App. 199 ( 1948 )

Under the facts of this case and the law applicable thereto, the judge, trying the case without the intervention of a jury, was authorized to find that the judgment lien of the plaintiff in fi. fa. on the property involved was superior to the alleged lien of the claimant for the amounts expended and incurred by him in connection with the property, and he did not err in overruling the claimant's motion for a new trial.

DECIDED DECEMBER 3, 1948. Neel Higgins sued Val-Lite Corporation and Leon C. Patterson in the Civil Court of Fulton County on a promissory note, and judgment was rendered in favor of the plaintiff and against the defendants for $1750 principal and $29.15 interest, on June 9, 1947, and execution was issued on this judgment and was entered on the general execution docket of Fulton County on June 10, 1947. On March 18, 1948, the Marshal of the Civil Court of Fulton County levied this execution on certain personal property of Val-Lite Corporation in the possession of J. A. Postell. On April 19, 1948, Postell filed a petition in the Civil Court of Fulton County, in which he set out that on June 10, 1947, he was approached by Gene Craig, who said he had an interest in a company that owned certain merchandise at 15 1/2 Houston Street, N.E., in Atlanta; that Gene Craig requested the claimant to have the merchandise stored in order to avoid payment of $85 a month rent; that the claimant called Central Transfer Company, which sent a dray out, disconnected certain electrical fixtures, and took them to its warehouse, and stored them from June 13, 1947, until February 5, 1948; that on February 5, 1948, the claimant moved this merchandise to his own warehouse at 936 West Peachtree Street, N.W., Atlanta, and paid Central Transfer Company $339.05 for storage; that a fair value of the storage on the merchandise from February 5, 1948, until April 1, 1948, would be $25; that the claimant paid C. D. Miller $39.05 to salvage lighting fixtures, and expended $20 for moving and handling this merchandise; that he has a lien superior to any other lien for protecting the property; and that "his claim and lien be allowed as a prior lien on the merchandise and that he be refunded the sum of $423.60 expended by him."

It was stipulated on the trial: that the plaintiff in fi. fa., Neel Higgins, had obtained a judgment in the Civil Court of Fulton County against Val-Lite Corporation for $1750, on June 9, 1947; that this judgment was entered on the general execution docket on June 10, 1947; that the Marshal of the Civil Court of Fulton County had levied on certain personal property as being the property of Val-Lite Corporation on March 18, 1948; that this property was in the possession of and was claimed by J. A. Postell; that it was agreed between the parties to this cause that the property should be sold and that the funds should stand in lieu of the property; that on April 19, 1948, the property was sold by the marshal; that J. A. Postell was the high bidder, bidding $400 for the property; and that this sum was paid to the marshal. J. A. Postell testified: "I am a manufacturers' representative, with offices in Atlanta. In June, 1947, a friend of mine, Gene Craig, called me and asked if I could advise him what to do about some merchandise owned by him. Perhaps he said he had a company that owned the merchandise. Gene Craig was a very good friend of mine. He stated that the company was then paying $85 a month rent, beside telephone and other usual business expenses, solely for a place to store this. He said that he could not get a storage warehouse to handle it because of the shortage of storage space. I told him that I did a lot of business with Central Transfer Company, and thought I could get his merchandise stored there, thereby eliminating rent and other expenses. I called Central and they said they would store it for a month or two, but that they would need their space before long. I gave this information to Mr. Craig, and he asked me if I could have the merchandise picked up and stored with Central, since he was totally unfamiliar with it and knew nothing about it. I believe he said the company was not making any money. I assumed that they were perhaps having financial difficulties. I had the merchandise stored solely as a friend to Mr. Craig. Central came out and picked it up and billed me for the hauling and storage each month. I kept after Mr. Craig to move it, since Central was jumping on me. He kept saying that he was going to do it soon. In March of this year, at the insistence of Central, we had to get it out of their warehouse, so I had it brought over to my place on West Peachtree and then the marshal made the levy in this case. At that time I paid Central for all storage charges. The check which you have shown me in the sum of $339.05 was a check which I gave Central for hauling and storage on this merchandise. I also had some of the merchandise repaired to protect it. The check which you have give me in the sum of $39.05 was what I paid C. D. Miller for repairing the damaged merchandise. I never expected to make any profit out of this transaction, but was acting throughout as doing a personal favor for Mr. Craig, who was a close personal friend. I did not know anything about any corporation at the time this merchandise was stored. At the time, I had never heard of Val-Lite Corporation until the marshal came out to my place to make the levy. I thought the merchandise belonged to Mr. Craig or to a company owned by him, or possibly a partnership. I had been trying repeatedly to get him to take the merchandise out of storage and pay the storage bill. He would always say he was going to do it soon. Had I known in the beginning that there was any litigation or any legal difficulties surrounding the merchandise in any shape, form, or fashion, I would have, under no circumstances, had anything to do with the handling or moving of it, as all my actions were simply on the basis of a personal friendship and relationship with Mr. Craig, and as a courtesy to him. I was never at any time approached by any attorney, nor was the matter of the merchandise and Central Transfer charges or any other thing pertaining to it discussed with anyone except Mr. Craig until the marshal came out to my place. I then did immediately consult Herbert Johnson, our counsel." The claimant introduced in evidence a check signed by J. A. Postell, dated February 21, 1948, payable to C. D. Miller, for $39.05, and endorsed by C. D. Miller, and another check, signed by J. A. Postell, dated March 10, 1948, payable to Central Transfer Company, for $339.05, and endorsed by that company. The plaintiff in fi. fa. introduced the original fi. fa. involved in the matter together with the levy thereon.

Judgment was rendered for the plaintiff in fi. fa., Neel Higgins, and against the claimant, J. A. Postell. The claimant's motion for a new trial was overruled, and he excepted. According to the testimony of Postell, he undertook to find a place to store the property here involved, at the request of Gene Craig, his close personal friend, in June, 1947, it being alleged in his petition that this was on or about June 10, 1947. Thereafter, Central Transfer Company, at his request, picked up the goods and stored them. This, according to the petition, took place on June 13, 1947. Postell further testified that in March, 1948, at the insistence of Central Transfer Company, he removed the property to his premises, and paid the charges of Central Transfer Company. From the evidence, considered with the petition, it appears that all transactions which Postell had in connection with the property took place on or subsequently to June 10, 1947. "All judgments in the superior, justices', or other courts of this State shall be of equal dignity, and shall bind all the property of the defendant, both real and personal, from the date of such judgment, except as otherwise provided in this Code." Code, § 110-507. When a judgment is rendered, if the execution issuing thereon is entered upon the general execution docket in the office of the clerk of the superior court of said county within 10 days from the rendition thereof, the lien of the judgment upon the property of the defendant is binding from the time the judgment is rendered. Code, § 39-701. The judgment in favor of Neel Higgins was rendered on June 9, 1947, and the execution issued thereon was recorded in the general execution docket of Fulton County on the following day; and therefore this lien was binding on the property of the defendant from June 9, 1947. "All liens not regulated and fixed, as to their rank, in this Code, shall rank according to date, the oldest having priority." § 67-1702.

Postell contends that under the facts he has a lien on the property as a naked depositary, and therefore is entitled to be reimbursed for all charges incurred by reason of the deposit, and may retain possession of the property until these charges are paid. "The delivery of chattels by one person to another to keep for the use of the bailor is called a deposit; the depositary may undertake to keep them without reward; such undertaking is a naked deposit. If he receives or expects a reward or hire, he is then a depositary for hire." Code, § 12-301. "A naked depositary is entitled to be reimbursed all charges and expenses incurred by reason of the deposit, and may retain possession until the same are paid." § 12-307. "Pawnees, factors, bailees, and acceptors shall have such liens as are in this Code designated. Such liens shall be inferior to liens for taxes, liens of which such person had actual notice before becoming creditors, special liens for rent, liens of laborers, liens or mortgages duly recorded, judgment liens, and other general liens reduced to execution and levied." § 12-701. "Depositaries shall have such liens as are prescribed in this Code, and shall, as to other liens, occupy the same position as mechanics. The liens mentioned in this and the preceding section shall be lost by a surrender, to the debtor, of the property on which the lien is claimed, and they shall rank with each other, and with other liens not specified in this and the preceding section, according to date." § 12-702. "Depositaries for hire shall have a lien for their hire, and may retain possession until it is paid." § 12-703. "Involuntary gratuitous or naked depositories shall have a lien on property in their possession for any expense incurred in caring for the property." Ga. L. 1947, p. 1165, Code (Ann. Supp.), § 12-711. It appears from the evidence that the property here involved was not delivered to Postell to keep for the use of the bailor, but was delivered to Central Transfer Company. Postell, at the request of his friend Craig, and as an accommodation to him, had the property in question stored with Central Transfer Company, and this concern billed Postell for its charges for storing same. The transfer company took the property with the understanding that it would store it for only a month or two, but had to keep it much longer. This company kept after Postell to have the property moved, and he repeatedly tried to get Craig to take the merchandise out of storage and pay the storage bill and he would promise to do so, but did not. Finally, on March 10, 1948, Postell paid Central Transfer Company its storage charges and had the property removed to his premises. Whatever claim Central Transfer Company may have had upon the property for storage does not appear to have been assigned to Postell in writing as provided in Code, § 67-1705. The item of $39.05 paid by Postell to C. D. Miller for repairing damaged merchandise was paid on February 21, 1948, while the property was still in the possession of the transfer company, as Postell testified that it was not moved to his place until in March. No evidence at all was offered as to the proof of the $25 item for the time the property was shown to have been in the possession of Postell, nor as to the $20 for hauling and labor. It appears from the evidence that what the claimant did and expended in connection with this property was done for and as a personal favor for his friend Craig, and was a mere voluntary payment by Postell for Craig. Under the facts of the case and the law applicable thereto, the judge, trying the case without the intervention of a jury, was authorized to find that the judgment lien of the plaintiff in fi. fa. on the property involved was superior to the alleged lien of the claimant for the amounts expended and incurred by him in connection with the property. The trial judge did not err in overruling the claimant's motion for a new trial.

Judgment affirmed. Felton and Parker, JJ., concur.