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Millender v. Looper

Court of Appeals of Georgia
Oct 6, 1950
61 S.E.2d 573 (Ga. Ct. App. 1950)


In Millender v. Looper, 82 Ga. App. 563, 569 (61 S.E.2d 573), it is held: "... `With equal opportunities for knowing the truth, a party grossly failing to inform himself must take the consequence of his neglect.'"

Summary of this case from Goldman v. Hart




Complaint; from Whitfield Superior Court — Judge Brooke presiding. May 13, 1950. (Application to Supreme Court for certiorari).

Mitchell Mitchell, for plaintiff.

Pittman, Hodge Kinney, for defendant.

The trial judge improperly overruled the plaintiff's demurrer to paragraphs 10 and 11 of the defendant's plea and answer, thereby rendering all further proceedings in the trial of the case nugatory.


This action was brought in Whitfield Superior Court by Ben Millender, d/b/a Standard Chenille Co., against John W. Looper. The petition shows, in substance, that the plaintiff stored certain rolls of sheeting and other goods at various times in a warehouse operated by the defendant, at an agreed storage charge of $25 per month, which was paid for the period from December 8, 1947, to June 30, 1948; that warehouse receipts were issued by or in the name of the defendant for the goods; that on demand and presentation of the receipts, on July 29 and 30, 1948, the defendant delivered all of the goods except 28 rolls of sheeting, which he failed and refused to deliver; and that of the goods delivered one roll of sheeting was delivered in a damaged condition. Recovery was sought for the value of the missing and damaged goods, the principal amount claimed in the original petition being $11,419.63.

The warehouse receipts or copies thereof were attached to the petition, as Exhibit A. The first is as follows:

"J. W. LOOPER Cotton Buyer, Feeds, Seeds, Fertilizers, Farm Machinery, Bagging and Ties Dalton, Georgia December 8, 1947 Received of Standard Chenille 6 rolls sheeting as follows: No. Yds. 4491 765 4495 820 4498 762 4499 702 4508 856 4509 931 Above sheeting received for storage in our Warehouse `R' NOT INSURED — WE ASSUME NO RESPONSIBILITY FOR LOSS BY FIRE OR THEFT.

Warehouseman assumes responsibility for ordinary care in storage only.

Storage rate will be reasonable to be agreed mutually upon.

J. W. Looper /s/ J. W. Looper"

The other receipts issued are substantially the same as the first, except they bear different dates, list different goods, and no mention is made as to any storage rate. Some of these receipts are signed in the same manner as the first receipt, and others are signed J. W. Looper, by B. or Billie Wilson, or B. or Billie Wilson, Bookkeeper.

In answer to the petition the defendant denied most of the material allegations, admitted that the plaintiff had paid him $25 per month for space rental, and claimed that the plaintiff had not paid him this rental for the months of May, June, and July, 1948.

For further plea and answer he alleged, among other things:

10. "Prior to December 8, 1947, plaintiff applied to defendant for storage space in which to store certain sheeting. At that time defendant had no space available for storage purposes except in a building wherein defendant was conducting a business in which a large number of defendant's employees were daily engaged at work. Defendant so informed plaintiff that he had no warehouse facilities available, but at plaintiff's insistence defendant showed plaintiff a corner of the building, wherein he was conducting his personal business, for an amount to be agreed upon and later fixed at $25 per month. At the time the rental was made with the plaintiff it was understood between the parties that the rental, whatever it might be, was for space rental only and was not to cover any duties and responsibilities on the part of the defendant as a warehouseman. After the agreement was made and on or about December 8, 1947, plaintiff delivered to defendant's building the six rolls of sheeting as set forth in Exhibit `A' of the petition, plaintiff's employees placing the heavy rolls of sheeting in the space as they saw fit. Defendant was present at the time said six rolls were delivered and was asked to execute a receipt for the same. It was explained to defendant that a receipt was desired in order to enable plaintiff to use the same for the purpose of borrowing money. Although defendant had not agreed to render and had not charged plaintiff for such service, defendant executed such a receipt as an accommodation to the plaintiff, and the matters and things specifically set forth in said receipt as shown in Exhibit `A' were specifically set forth therein to accord with the agreement existing between the parties at such time as heretofore alleged. Likewise on or about December 11, 1947, certain sheeting was delivered to defendant and defendant was informed by the plaintiff or his agent that there were seven rolls and defendant again personally executed a receipt as set forth in Exhibit `A' to the petition without making any count of the rolls. Thereafter, understanding that receipts were a matter of form to be used as collateral for loans and that defendant['s] responsibilities were not to be those of a warehouseman, whenever sheeting was delivered to defendant's plant, plaintiff, his agents or employees and particularly Homer Smith, plaintiff's manager, would go to defendant's office and state to Miss Billie Wilson, the bookkeeper in the office, the quantity of sheeting delivered and she executed the remaining receipts set forth in Exhibit `A' as a matter of form taking the word of plaintiff's said agents and employees, without otherwise seeking to determine whether or not such sheeting was actually delivered. Relying upon the agreement between defendant and plaintiff, and relying upon the honesty and integrity of plaintiff, defendant made no effort whatsoever to determine whether or not the sheeting actually receipted for by Miss Wilson was actually placed in defendant's building."

11. "Defendant further alleges that plaintiff knew that defendant was relying on the agreement existing between them as well as upon his honesty, as heretofore alleged, and that defendant was not using any means or caution to prevent receipts being issued to plaintiff as might be requested by him, his agents and employees and particularly the said Homer Smith. Plaintiff, together with his agents and employees and particularly Homer Smith, plaintiff's manager, and others well known to plaintiff but unknown to defendant, thereupon conspired to obtain and did obtain receipts for more sheeting than was actually delivered to defendant's place of business in order to defraud defendant and in order to increase plaintiff's borrowing power.

"Defendant was without knowledge of said deceitful and fraudulent conduct on the part of the plaintiff and his said agents and employees until after all deliveries had been made to defendant, and plaintiff was wrongfully in possession of the receipts as set forth in Exhibit `A' of the petition. The exact number of rolls of sheeting never placed in defendant's building, but for which plaintiff obtained receipts is unknown to defendant but well known to plaintiff."

The plaintiff demurred to various parts of the plea and answer, including, among others, all of paragraph 10 and substantially all of paragraph 11, the gist of his contentions by demurrer being, insofar as the same are now material, that the allegations of the plea and answer, or various parts thereof, (1) attempt to show a different contract in parol from that shown by the written receipts, (2) fail to show any conspiracy to defraud the defendant on the part of the plaintiff or his agents, and (3) fail to show any equitable or legal defense to the action. The trial judge overruled the demurrer, except insofar as it attacked any showing of a landlord and tenant relationship, sustaining it in this respect and holding that the relationship of bailor and bailee existed. The plaintiff excepted pendente lite to the ruling insofar as it was adverse to him.

Thereafter, the plaintiff amended the petition by reducing the claim for damaged goods to the extent of $150, the defendant amended his plea and answer in minor respects, and the case proceeded to trial before a jury, resulting in a verdict and judgment for the defendant for $75. A new trial was granted on motion of the plaintiff, the defendant made another amendment to his plea and answer, striking certain allegations and prayers pertaining to equitable relief which had been previously added, and the case again proceeded to trial before a jury, the second trial also resulting in a verdict and judgment for the defendant for $75. The plaintiff's motion for a new trial was overruled, and he excepted, bringing the case here. Error is assigned on the ruling on demurrer as preserved by the exceptions pendent lite, and on the overruling of the motion for a new trial.

"Parol evidence is inadmissible to add to, take from, or vary a written contract. All the attendant and surrounding circumstances may be proved, and if there is an ambiguity, latent or patent, it may be explained; so if a part of a contract is reduced to writing (such as a note given in pursuance of a contract), and it is manifest that the writing was not intended to speak the whole contract, then parol evidence is admissible." Code, § 20-704(1). "Parol contemporaneous evidence is inadmissible generally to contradict or vary the terms of a valid written instrument." § 38-501. "If the writing does not purport to contain all the stipulations of the contract, parol evidence shall be admissible to prove other portions thereof not inconsistent with the writing; so collateral undertakings between parties of the same part among themselves would not properly be looked for in the writing." § 38-504. "Where parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements is inadmissible to add to, take from, or vary the written instrument." Bullard v. Brewer, 118 Ga. 918(1) (45 S.E. 711). "While a mere receipt for money is always subject to explanation by parol, still if a paper in the form of a receipt is really a contract between the parties and the stipulations agreed upon are sufficiently set forth therein, such paper is subject to the same rules as govern ordinary contracts in writing, and parol evidence is not admissible to contradict or vary the terms or stipulations." Southern Bell Tel. c. Co. v. Smith, 129 Ga. 558 ( 59 S.E. 215). Also, see Graham v. Peacock, 131 Ga. 785 ( 63 S.E. 348). This rule is applicable to a receipt for chattels which is also a contract. "Warehouse receipts should be construed in accordance with the rules applicable to the construction of contracts in general, and especially in accordance with commercial usage." Citizens Southern Bank v. Union Warehouse Compress Co., 157 Ga. 434 (3c) ( 122 S.E. 327). Also, see Hyman v. Warren County Fertilizer Co., 28 Ga. App. 687, 688 ( 113 S.E. 226); Dunagan v. Dunagan, 38 Ga. 554, 560; Barclay v. Hopkins, 59 Ga. 562, 565. "A bailment is a delivery of goods or property for the execution of a special object, beneficial either to the bailor or bailee, or both; and upon a contract, express or implied, to carry out this object and dispose of the property in conformity with the purpose of the trust." Code, § 12-101.

The receipts involved in the present case show a delivery of certain goods for the purpose of storage, and clearly show the substance of a contract of bailment. The petition in substance shows an action primarily in trover, under the definition given to such an action in this State, for the value of the goods and based on the failure and refusal of the defendant to deliver the goods upon a demand and presentation of the receipts therefor. Under the foregoing rules the defendant should not be permitted to plead any matter in defense showing the existence of an entirely different contract or relationship from that shown by the written receipts, whereby he might avoid the stipulations and clear implications as to delivery and possession of the goods listed therein, where such matter is apparently capable of proof only by parol evidence, unless it should also appear that the receipts were procured through fraud, accident, or mistake.

There is no issue in the present case as to any accident or mistake. Fraud, however, is alleged in defense. It is well settled that fraud cannot form the basis of an action or a defense thereto, in the absence of any trust or confidential relationship, if it appears that the person relying on the fraud as a basis for the action or in defense thereto had equal and ample opportunity to prevent the happening of the occurrence, and made it possible through a failure to exercise proper diligence. In this connection, one of the headnotes appearing in the case of Dortic v. Dugas, 55 Ga. 484, is as follows: "With equal opportunities for knowing the truth, a party grossly failing to inform himself must take the consequence of his neglect." Also, see Martin v. North Georgia Lumber Co., 72 Ga. App. 778, 781 ( 35 S.E.2d 270), and the cases there cited. "A warehouseman is a depositary for hire, and is bound only for ordinary diligence; a failure to deliver the goods on demand makes it incumbent on him to show the exercise of ordinary diligence." Code, § 12-405.

All that is actually shown by the plea and answer is that on account of the mode of operation permitted by him as a warehouseman, by the issuance of receipts without verification of the presence of the goods, and by allowing a removal of the goods without a surrender of the receipts, fraud was possible. It was stipulated in the receipts that the warehouseman would exercise ordinary care, the same degree of care already imposed upon him by law, and upon a failure to deliver the goods it is incumbent on him to show the exercise of ordinary diligence. While the Code section in this respect, supra, applies primarily to the exercise of ordinary care for the goods while in the possession of the warehouseman, the same principle would apply in respect to all acts in connection with the contract. Here, admittedly, by the alleged mode of operation, the warehouseman was careless in failing to determine that he ever had possession of all of the goods. It is also apparent from his plea and answer that at all times he had the opportunity, if he desired to take advantage of it, of determining exactly what goods were placed in storage. He cannot allege a conspiracy to defraud where he had every opportunity to shield himself from fraud and failed to exercise the same, by his own admission, it appearing from his allegations that the real basis for the conclusion as to fraud was an opportunity to defraud, brought about by his negligence in the matter. This is no defense and cannot be used as a shield from liability. Under the circumstances alleged, a mere suspicion or conclusion of fraud is not enough.

However, even without fraud, the defendant will be entitled to show by parol evidence on a new trial, in support of any allegations to the same effect which are made and which may be made, any matter which took place after the time the warehouse receipts were issued, if such would show that certain of the goods were actually delivered to the plaintiff or his duly authorized agent, or would show that subsequent to the issuance of the receipts certain of the goods were in the possession of the plaintiff or his duly authorized agent. Such pleadings and evidence in support thereof would show a discharge of the obligation of the defendant under the contract as to these goods. The principle of the parol evidence rule operates only to prevent a showing, in the absence of fraud, accident, or mistake, of any matter in contradiction of the writing which may have taken place at or prior to the execution of the writing.

We are of the opinion that the trial judge erred in overruling the demurrers to paragraphs 10 and 11 of the plea and answer of the defendant, and since it is apparent from the record that all further progress of the case and the final result reached may have been affected by the ruling in this respect, all further proceedings were nugatory.

Judgment reversed. Felton and Worrill, JJ., concur.

Summaries of

Millender v. Looper

Court of Appeals of Georgia
Oct 6, 1950
61 S.E.2d 573 (Ga. Ct. App. 1950)

In Millender v. Looper, 82 Ga. App. 563, 569 (61 S.E.2d 573), it is held: "... `With equal opportunities for knowing the truth, a party grossly failing to inform himself must take the consequence of his neglect.'"

Summary of this case from Goldman v. Hart
Case details for

Millender v. Looper

Case Details


Court:Court of Appeals of Georgia

Date published: Oct 6, 1950


61 S.E.2d 573 (Ga. Ct. App. 1950)
61 S.E.2d 573

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