Opinion
33039.
DECIDED JUNE 21, 1950.
Trover; from Irwin Superior Court — Judge Forehand. February 20, 1950.
R. R. Jones, for plaintiff.
W. R. Mixon, McDonald McDonald, for defendant.
1. Where a plaintiff in trover demurs to a portion of the plea and answer of the defendant, in which the latter seeks to set up a recoupment or setoff against the plaintiff, which demurrer is overruled and the plaintiff properly excepts pendente lite, he does not, by filing an amendment to his petition in trover in response to the plea and answer of the defendant, waive his right to insist upon his exceptions pendente lite and to assign error thereon in the main bill of exceptions to this court complaining of the overruling by the trial court of his motion for a new trial, sued out upon the verdict and judgment in favor of the defendant on his plea and answer.
2. The defendant, a cotton warehouseman, in an action in trover brought to recover certain cotton stored with him, could not plead by way of setoff any claim for charges which he might have against the plaintiff for other cotton which had been stored in his warehouse by the plaintiff and which the defendant had permitted the plaintiff to withdraw without insisting upon his lien for storage charges upon the express promise of the plaintiff to pay, and such a plea was subject to demurrer as attempting to join a claim ex contractu to an action ex delicto. No insolvency or non-residence of the plaintiff appeared and there were no other facts alleged sufficient to authorize a court of equity to take jurisdiction.
DECIDED JUNE 21, 1950.
W. G. Mercer instituted in Irwin Superior Court his action in trover against A. G. Shiver, trading as Planters Bonded Warehouse, in which he set up that the defendant was in possession of 22 bales of cotton, represented by warehouse receipts for each bale, of the total value of $3,323.63, to which cotton the petitioner claimed title, and that the defendant refused to deliver such cotton to the petitioner, although the petitioner had tendered to the defendant the warehouse receipts, given to him by the defendant, representing such cotton, and also that the petitioner had tendered to and offered to pay the defendant the charges for storage on said 22 bales of cotton.
To this petition the defendant filed his answer and counterclaim in which he denied the material allegations of the petition and by way of cross action alleged that he was a cotton warehouseman and that the plaintiff had stored 156 bales of cotton with him, obtaining from him receipts for such cotton, in which it was provided that the defendant was to receive for his service as such warehouseman $1 for each bale and 50 cents monthly thereafter; that all of said cotton was stored as part of the same transaction and that by reason thereof the plaintiff became liable to him for the storage charges on each and all of said bales of cotton. The defendant further set up that a few weeks prior to the institution of this proceeding the plaintiff withdrew from said warehouse 134 bales of said cotton and at such time the plaintiff expressly promised to pay all warehouse charges on said cotton, and upon this promise the defendant permitted the withdrawal of all of said cotton except the 22 bales involved in this proceeding. The defendant further alleged that at the time of withdrawing said 134 bales the plaintiff was due him for storage charges on said cotton $603, and thereupon when the plaintiff sought to withdraw said 22 bales of cotton the defendant informed the plaintiff that he must pay said sum. The defendant further set up that there is now due him for said storage and warehouse charges $264 for said 22 bales, and that the plaintiff is due at this time for all of said cotton $867, and the plaintiff should be required "in good conscience" to pay this sum to him before he should be called upon to deliver the 22 bales now in his possession. The defendant set up that he has a lien on the 22 bales for $264, and that no tender has been made to him therefor; that the trial court has "equitable jurisdiction, and that it also has jurisdiction of all the parties, and there is no reason why this defendant should be required to go into another forum to assert the claims that he has against this plaintiff, as this would involve a multiplicity of suits and circuity of actions; that a court of equity can adjudicate the lien that defendant has against the plaintiff and equity courts have jurisdiction over all liens, and a general accounting can be had in this court between the defendant and the plaintiff, and it can be determined how much the plaintiff is indebted to the defendant, what liens the defendant has against the plaintiff and said cotton, and the entire matter can be adjudicated in the superior court of this county with justness, fairness, and dispatch, and will thus save several other actions and trials," and also set up that "this defendant therefore asks that this court assume its equitable jurisdiction and determine all the matters at controversy between the plaintiff and the defendant and the defendant have judgment against the plaintiff in the sum of $867 and that the defendant have a special lien on said cotton now in his possession for the amount due defendant by plaintiff." The defendant prayed that the plaintiff's petition be denied, that his lien be foreclosed in equity and be set up and established by the court against the 22 bales in his possession, and that he have a special and general judgment for the said $264 against said cotton, that he have a general judgment against the plaintiff for $603 for the charges due him on the 134 bales of cotton, and that an equitable accounting be had between the parties and that the court assume equitable jurisdiction of this case and on a proper accounting declare all the rights of the parties and enter a decree accordingly.
The defendant also demurred to the plaintiff's petition as setting forth no cause of action and specially on certain grounds. This demurrer does not appear to have been passed upon.
The plaintiff filed his demurrer to the defendant's answer and cross action because the allegations in paragraphs 4 to 11, inclusive, insofar as they seek to recover by way of cross action for storage charges on cotton not in the defendant's possession, set forth no legal or equitable defense to the cause of action sued on, the facts alleged being insufficient to authorize the defendant to recoup or set off the demands arising ex contractu against the plaintiff's cause of action and prayed for this portion of said answer to be stricken.
The trial court overruled this demurrer and the defendant excepted pendente lite, assigning error thereon in the bill of exceptions in this court.
The plaintiff filed an amendment in the way of a response to the defendant's answer and counterclaim and therein sought damages of the defendant for damage sustained to the 134 bales of cotton withdrawn from the defendant's warehouse.
The case proceeded to trial and the jury found for the defendant the sum of $900, and that the plaintiff be permitted to take the cotton. Judgment was entered accordingly. The plaintiff moved for a new trial, which, as amended, was overruled by the trial court, and the plaintiff excepts.
1. There is first presented for determination the question whether the trial judge erred in overruling the plaintiff's demurrer to that portion of the defendant's plea and answer in which he sought recovery of the storage charges on the 134 bales of cotton, which he had permitted the plaintiff to withdraw from his warehouse on the express promise by the plaintiff that he would pay the defendant therefor.
The defendant contends that the plaintiff waived his demurrer to the plea and answer when he filed his amendment to his petition in trover and sought to recover against the defendant for the alleged damage and loss of weight to the cotton stored in the defendant's warehouse. The plaintiff, upon the overruling of this demurrer, properly excepted pendente lite, assigning error thereon in his bill of exceptions to this court. There is no merit in this contention of the defendant. The judgment of the court below overruling the plaintiff's demurrer to that portion of the defendant's cross action in which he sought to recover for the storage charges on the 134 bales of cotton was not such a ruling that had it been adverse to the defendant and a judgment sustaining the demurrer, same would have amounted to a final disposition of the case in the trial court. Even if the court had sustained the plaintiff's demurrer, the case would have been still pending in the trial court. The defendant denied the material allegations of the plaintiff's petition, denying that the plaintiff had title to the 22 bales of cotton. This formed an issue for trial. A direct bill of exceptions to this court from the ruling on this demurrer would have been premature and the question raised improperly before this court. It therefore follows that the plaintiff properly excepted pendente lite to this ruling. The plaintiff's amendment in response to the allegations in the portion of the defendant's cross action which had been demurred to by the plaintiff did not constitute a waiver of the right of the plaintiff to except to the ruling on the demurrer and assign error thereon here. See Code § 81-301, which provides that, "A defendant may either demur, plead or answer to the petition, or may file one or more or all of these defenses at once without waiving the benefit of either." This Code section is applicable here. The plaintiff was not estopped from complaining of this prior ruling of the court on his demurrer to that portion of the defendant's plea and answer setting up a claim ex contractu for the charges on the 134 bales of cotton, which he permitted plaintiff to remove from his warehouse, where the plaintiff duly filed proper exceptions pendente lite and upon the final determination of the case, assigned error thereon in the direct bill of exceptions to this court sued out by him complaining of the denial of his motion for new trial. See Albany Phosphate Co. v. Hugger Bros., 4 Ga. App. 771 (1-a) ( 62 S.E. 533); Durrence v. Waters, 140 Ga. 762 ( 79 S.E. 841); Durrence v. Waters, 140 Ga. 762 ( 79 S.E. 841); Durrence v. Waters, 143 Ga. 223 ( 84 S.E. 471).
2. This brings us to consider whether or not the defendant could set up his answer to the plaintiff's petition in trover for the 22 bales of cotton which remained in the defendant's warehouse, and on which he had a warehouseman's lien for the storage charges, the storage charges which he claimed as to the 134 bales of cotton removed by the plaintiff from the defendant's warehouse, and for which the defendant did not at that time seek to assert his lien for storage charges.
The action in trover was ex delicto and the fact that it appears from the petition that the property sought by the trover was identified by the defendant's warehouse receipts therefor and that the plaintiff had offered to pay the defendant the storage charges on this cotton, does not convert the proceeding to an action on the contract, that is on the contract of bailment between the parties, as shown by said receipts. The plaintiff in his petition claims title to the cotton sought by the trover and set up that the defendant was in possession thereof, recognizing in the petition the defendant's right to a warehouseman's lien on this cotton for his storage charges. The defendant answered and denied that the plaintiff was entitled to the cotton. The defendant set up by way of cross action that the plaintiff had originally stored with him 156 bales of cotton and that the plaintiff had withdrawn 134 bales of this cotton, leaving 22 bales thereof yet in the warehouse. The defendant alleges that the plaintiff orally promised to pay to him the warehouse charges on this 134 bales, but he did not seek to assert his lien thereon, permitting the plaintiff to have these bales of cotton, upon his contractual obligation, made by an oral promise at the time. to pay the defendant therefor. The defendant thereby lost his claim of lien for storage charges on these 134 bales of cotton. The defendant's claim for these charges and to assert the same against the 22 bales of cotton yet in his possession was ex contractu, and the pending action in trover was one ex delicto.
"All claims arising ex contractu between the same parties may be joined in the same action, and all claims arising ex delicto may in like manner be joined. The defendant may also set up, as a defense, all claims against the plaintiff of a similar nature with the plaintiff's demand." Code § 3-113. In Bank of Sparta v. Butts, 4 Ga. App. 308 (6) ( 61 S.E. 298), this court held that "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." The action is one in tort for conversion of the property by the defendant in trover and the action is not ex contractu on the defendant's warehouse receipts. See Powers v. Wren, 198 Ga. 316, 319 ( 31 S.E.2d 713). These receipts are merely evidence that the cotton was the property of the plaintiff which was being kept for him by the defendant in his warehouse. The action is for the conversion of this property, which occurred when the defendant failed and refused to deliver same to the plaintiff on demand therefor. See Southern Express Co. v. Sinclair, 130 Ga. 372 ( 60 S.E. 849). When the defendant delivered the 134 bales of cotton to the plaintiff he thereby lost his claim of lien thereon. See Code § 111-431 (Ga. L. 1937-38, Ex. Sess., pp. 390, 402). The defendant's right of action, if any, for the failure of the plaintiff to comply with his oral promise and agreement to pay the defendant the amount of the storage charges on the 134 bales of cotton is an action for breach of contract and not an ex delicto proceeding. The defendant was entitled to his remedy at law to sue for the charges on this cotton. Code § 111-434 (Ga. L. 1937-38, Ex. Sess., pp. 390, 403). However, for the defendant to seek to recover for these charges, unpaid by the plaintiff in accordance with his parol agreement with the defendant at the time he was permitted to remove this cotton from defendant's possession, is to seek to enforce a claim for damages ex contractu in defense to an action ex delicto and no special equitable grounds appear, such as non-residence or insolvency of the plaintiff. Such a claim by the defendant as to the 134 bales of cotton, not in his possession, was not the proper subject-matter for setoff in this trover action. See Barrow v. Mallory Bros., 89 Ga. 76 ( 14 S.E. 878); Bell v. Ober Sons, 111 Ga. 668(3) (36 S.E. 904); Youngblood v. Armour Fertilizer Works, 23 Ga. App. 731 (1, 2) ( 99 S.E. 314); Harden v. Lang, 110 Ga. 392 (2), 398 ( 36 S.E. 100). In the Harden case, the court said: "The action of trover is, of course, an action sounding in tort, the gist of which is the conversion by one of the goods of another. The damages sought to be pleaded, being for the breach of a contract, had their existence by virtue of the contract." In the case at bar, the parol promise of the plaintiff to pay the defendant the charges on the 134 bales of cotton had not been fulfilled by the plaintiff. This agreement was breached by the plaintiff. There is neither insolvency nor non-residence of the plaintiff involved. There is no such equitable ground as will abrogate the rule laid down by the above decisions and under the Georgia statute "Equity will not aid a defendant in actions at law as to matters of setoff and recoupment when his legal remedies are complete and adequate." Collins v. Clayton, 53 Ga. 650. The fact that the defendant will have to institute a separate action against the plaintiff to recover for the storage charges on the 134 bales of cotton, which he permitted the plaintiff to remove from the warehouse upon his promise to pay defendant therefor, does not entitle the defendant to any equitable accounting. His remedy is on the contract by separate proceeding and not by way of setoff to this trover action.
This case is not like Ford Co. v. Atlantic Compress Co., 138 Ga. 496 ( 75 S.E. 609). The action there was ex contractu. The plaintiff here did not elect to sue in assumpsit but to maintain his action in trover for the property. The plaintiff could have maintained an action on the warehouse receipts, that is on the contract embodied therein. However, the plaintiff did not bring this type of action, but claimed title and set up that the defendant was in possession of the cotton and had refused to deliver the same on demand. Nothing to the contrary of what we now hold was held in Crandall v. Shepard, 166 Ga. 396 ( 143 S.E. 587). There was no equitable setoff involved as in Burns v. Hill, 19 Ga. 22(6), and in Dyson v. Washington Telephone Co., 157 Ga. 67 ( 121 S.E. 105). The situation here involved does not come within the provisions of Code § 107-102, which in certain instances permits a defendant to plead a setoff or to recoup in damages where the suit to recover personal property is brought by the vendor and he retains title thereto. In the case of Powers v. Wren, 198 Ga. 319 (supra), the Supreme Court ruled that the action being trover was in tort and the cross action being on the contract, the two claims were not of a similar nature. In that case the court held that the trial judge properly sustained the demurrer to so much of the defendant's plea and answer as attempted to set off certain notes claimed by the defendant to be owing him by the plaintiff, even though the two actions or claims grew out of the same transaction. In ruling upon this demurrer to the cross action, the allegations of the plaintiff's amendment, filed after the ruling overruling the demurrer, are not involved. The allegations of the original petition in trover, together with the defendant's answer thereto, are the sole pleadings involved. No facts sufficient to authorize a court of equity to permit a setoff of matters ex contractu in this trover action appear.
It follows that the court below erred in overruling the plaintiff's demurrer to that portion of the defendant's answer as sought to recover the charges on the 134 bales of cotton, for which the defendant's claim was one ex contractu. This being true, the subsequent proceedings in the case, which resulted in a verdict for the storage charges on the entire 156 bales in the defendant's favor, were nugatory, and unless the defendant will write off from the verdict for $900 in his favor the sum of $636, being the amount recovered by the defendant for the storage charges on the 134 bales of cotton removed by the plaintiff from the defendant's warehouse, the judgment of the court below shall be reversed and the case tried over on the issue formed by the plaintiff's petition and the answer of the defendant thereto, with paragraphs 4 through 11 inclusive stricken.
Judgment affirmed with direction that the defendant write off $636, in default of which the judgment shall stand reversed. MacIntyre, P. J., and Townsend, J., concur.