Davis v. Crozier & Co.

The opinion of the Court was delivered by Mr. Justice Fraser. The record shows: “This action was brought in July, 1920. Defendant, a foreign corporation, doing business at Nashville, Tenn., shipped a carload of oats to R. W. Pruitt & Son at Anderson, S. C. The shipment was what is commonly known as ‘order notify’ shipment; the draft for the purchase price of the oats being attached to the bill of lading and sent to a local bank for collection. The draft was not paid, and the oats were reconsigned to Augusta, Ga. “On July 7, 1920, at the instance of plaintiff, the Sheriff entered the car in which the shipment moved and attached 60 sacks of the shipment, removing them from the car. *101 Shortly thereafter the car was removed by the railroad to' Augusta, Ga. “On July —¡-, 1920, State Bank & Trust Company, a bank at Nashville, Tenn., in accordance with the provisions of section 287 of the Code of Civil Procedure, served on plaintiff’s attorney a demand for the merchandise attached, claiming to be legally entitled to the possession thereof. This plaintiff denied, and thereupon the Court submitted the issue to the jury in the following form, viz.: ‘Issue — - Who was the owner of the oats attached in the car at Anderson, S. C., at the time of said attachment by the sheriff?’ - “On plaintiff’s motion and over objection of State Bank & Trust Company, the Court ordered that such issues as arose out’ of the action b}r plaintiff against defendant should be tried simultaneously with the trial of the issues between plaintiff and State Bank & Trust Company. The issues were so tried, and at the conclusion of the testimony the Court directed a verdict in favor of State Bank & Trust Company, arid instructed the jury to answer the issue as-ábove quoted, State Bank & Trust Company.’ From the judgment entered thereon plaintiff appeals.” 1 The plaintiff’s witness Pruitt testified that he had conversation over the phone with Mr. Crozier after the draft was returned to Nashville in which “he said they were his oats and his draft.” This raised a question of fact to be determined by the jury, and it was error to direct a verdict for the intervener. The judgment is reversed, and a new trial ordered. Mr. Chief Justice Gary and Mr. Justice Watts concur.