Waring v. Gaskill

Lumpkin, Justice. The material facts are stated by the,reporter. It was error to strike the defendant’s plea. The sale of the stock pledged as collateral security for the payment of one of the notes in suit, without giving the ten days notice to the defendant as required by the contract, was illegal. Under such circumstances, the sale was neither more nor less than a conversion of the property by the plaintiff, the more especially when he himself became the purchaser at his own sale. This being so, we think it clear that it was the right of the defendant, in his defense to the action brought against him upon this and the other notes, to. plead in recoupment the damages occasioned him by this conversion. In adjusting the account between .the parties, he was entitled to credit for the actual value of his stock at the time it was sold, and if such value exceeded the entire amount of his indebtedness to the plaintiff, he could recover the balance shown to be in his favor. Nor was it essential to the making of this defense that the defendant should have previously demanded a restitution to him of the stock in question, or that he should have tendered pay [734] ment of the debt thereby secured. The questions involved in the present case were practically settled by the decision of this court in Van Arsdale v. Joiner, 44 Ga. 173. Judgment reversed.