Gilreath & Son v. Holston Salt & Plaster Co.

Speer, Justice. 1. The defendants in error brought suit against the plaintiffs in Bartow superior court for the sum of two hundred and sixty-one dollars and twenty-eight cents, and interest, alleging that they had consigned to Gilreath & Son, in several different consignments, sacks of salt to be sold by said Gilreath & Son for them, and the proceeds of [705] such sale to be accounted for by them, after deducting their commission and expenses, or the salt returned. That they had demanded of said Gilreath & Son the proceeds of sale or a return of the salt, and that said Gilreath & Son had failed and refused to pay over to them the proceeds of said sale or return said salt, and that the salt unaccounted for was of the value of $261.28, defendants had fraudulently converted said .salt, or its proceeds, to their own use. Defendants pleaded they were not commission merchants for plaintiffs, and had been adjudged bankrupts by the proper court, and that their petition for a discharge from their debts, including the debt sued on, was still pending, and that pending their petition in bankruptcy plaintiffs could not sue, and if they could the suit ought to be stayed until the final hearing on their petition for discharge. Under the pleadings, evidence and charge of the court,, the jury found a verdict, for the plaintiff below for the amount sued for. Defendant made a motion'for a new trial, which was refused by the court and defendant excepted. The grounds of the motion were: (1.) That the verdict is against the, evidence and the justice and equity of the cause. (2.) That the court refused to give in charge to the jury, the following written request, as made by defendants below: “If you believe from the evidence that the agent of the plaintiff authorized the defendants to sell out the salt on time, and to be paid for by defendants as defendants paid for their other goods, this would be a sale for which defendants would be liable to pay, but not as commission merchants.” (3.) Because the verdict is contrary to law. It was admitted on the trial by the parties that the account sued on was correct and unpaid ; that plaintiffs in error had been regularly adjudged bankrupts on their own petition, that their merchandise and other property had. [706] been turned over to A. M. Foute, assignee, under a regular deed of assignment, that said bankrupt proceeding was still pending in the United States court, and that the assignee had sold the property of the bankrupts, except what had been exempted to them under the bankrupt law. The evidence shows that defendants had been receiving salt to be sold on commission for the plaintiff below for some time previous, but defendants claim “ that the salt sued for was delivered to them to be sold on time and-accounted for as their other goods.” Under our view of the evidence, we do not find that any satisfactory proof was tendered to establish a new agreement, so as to change the former relation between these parties, but a mere modification of the original contract. There was no agreement as to price or time of payment, and no such new-agreement as would authorize the charge requested, and assigned as error in the secpnd ground of the motion. This seems to have been the grounds of defense relied on in the court below. Here plaintiffs in error claim, that, admitting it was a debt due by defendants be-' low as commission merchants for the salt sold as belonging to their principal, still it was such a debt as was dis-chargeable in bankruptcy. This question has been ruled adversely to plaintiffs in error in the case of Meadow &. Bro. vs. George Sharpe, reported in 54 Ga., 125, and which was but the re-afifirmance of the same principle ruled in 44 Ga., 460. In the first case cited it was ruled, “one who receives goods consigned to him to be sold on commission) and who sells the same, and who fails to pay over the proceeds, creates a debt whilst acting in a fiduciary character, from which he. is not released by obtaining a discharge in bankruptcy.” It is insisted, however, that these cases are overruled by the case in 5 Otto, United States Reports, 704, and that being a decision of the supreme court of the United' States touching the construction of-the bankrupt act, it must prevail. We recognize the rule claimed, that in the [707] construction of any law of congress, it would be the duty of this court to conform' its decisions to those made by the supreme court of the United States when the points ruled are in principle the same, but on a careful examination of the case in 5th Otto, we do not regard it necessarily in conflict with the rulings in the 44th and 54th Ga., and are not prepared to reverse those rulings without a construction of the act by the supreme court of the United States upon the question therein made. We are aware that the decisions on this question are in conflict in-different states, but we are inclined to adhere to the rulings made by this court until at least a more satisfactory ruling from the supreme court of the United States may settle the question definitely. Let the judgment below be affirmed.