Tyus v. Rust , 37 Ga. 574 ( 1868 )

Warner, C. J.

This is a bill of interpleader filed by Rust,' as the surviving copartner of Sims & Rust, who were warehousemen, against Tyus, who is his baileé of fifty-three bales of cotton, and Jeremiah Beall, tc whom the complainant, as a warehouseman, sold the cotton as the agent or factor of Tyüs, and the question to be decided is, whether the complainant has made such a case, as exhibited by the record, as will entitle him to maintain his bill of interpleader. A bill of inter-pleader may be filed where two or more, persons claim the same debt or duty, or other thing from the complainant, by different or separate interests, and he not knowing to which of the claimants he ought of right to render the same debt, duty or other thing, fears that he may suffer injury from their conflicting claims, and therefore he prays that they may be, compelled to interplead, and state their several claims, so that the Court may adjudge to whom the same debt, duty or other thing belongs. Story’s Eq. Pleading, 237, section 391. In this case, Rust, the warehouseman, had either the general or special authority to sell the cotton for Tyus, his bailor, or he did not. If he- had either the general or special authority, as the agent of his principal to sell the cotton, then Beall, the purchaser, acquired a good title to the cotton, and is, entitled to the possession of it. But if Rust, the warehouseman, did not have the authority to sell the cotton for Tyus, his principal, or violated his special instructions in relation' to the salte of it, then, he is liable to his principal for any violation of his duty as warehousman, and factor, which he may «have legally iucurred. If the facts be true as stated in his bill, he can .successfully defend himself at law against Tyus’ action of trover for the cotton, and there is no legal or equitable ground for withholding the possession of the cotton, from Beall, the purchaser. Why should Beall be enjoined from prosecuting his action of trover for the cotton against Rust, when the latter had the authority of Tyus, his principal, to make the sale of it to him ? Why should Rust refuse to deliver the cotton to Beall, if he made the sale in good faith, as the agent of his principal, and received the purchase money therefor ? After the sale of the cotton to Beall, Rust held the cotton as the agent and factor of Beall, and not as the agent and factor of Tyus. If Rust, the warehouseman, is not a wrong-doer, as against either of the parties claiming this cotton, then he is in no danger from the suits instituted against him therefor. But if he is a wrong-doer, as to either of the parties, defendants in this transaction, then he cannot maintain this bill of interpleader, for, as remarked by Lord Eldon, in Stingsby vs. Boulton, (1 Vesey and Beame’s Rep., 334.) “ A person cannot file a bill of interpleader who is obliged to put his case upon this, that, as to some of the defendants, he is a wrong-doer.” There is another objection to this bill, there being no affidavit of the complainant; that there is no collusion between him and any of the parties^ defendant, which is necessary when a bill of interpleader is filed. Story’s Eq. Pleading, 237, section 291. In view of the facts of this case, as exhibited by the record, we are of the opinion that the demurrer to the bill should have been sustained and the bill dismissed. Let the judgment of the Court below be reversed.