Moate v. Griswold

Broyles, C. J. (After stating the foregoing facts.) The plaintiff, upon discovering that Rhodes had taken the plant without [33] paying for it, had the option of either affirming or disaffirming this act. We think the plaintiff’s evidence clearly shows that he affirmed the act, thereby waiving the conversion and divesting himself of title. He demanded and accepted his part óf the commissions on the sale of the plant, for which he now sues, and likewise accepted the defendant’s promise to ship to him another plant in place of the one taken. Thus the plaintiff waived the tortious taking of the plant, and so ratified the conversion as to prevent a recovery in trover. See Bullard v. Bank of Madison, 107 Ga. 772 (33 S. E. 684), where it was held, that, “Where a planter sold cotton 'on cash sale,’ and the purchaser, without paying for the same, sold it to another, and the planter, with full knowledge of such conversion, took from the person to whom he had sold the cotton for cash his note covering the- value of the cotton converted, this was such an abandonment of the cash sale, and such a ratification of the disposition which had been made of the cotton, as released the original purchaser and all who claimed under him from liability for any conversion of which they may have' been guilty.” See also, in this connection, 38 Cyc. 2042; 26 R. C. L. 1144. The agreement of the plaintiff, with full knowledge that the defendant had converted the plant to his own use, to accept his half of the commissions on the sale and the defendant’s promise to give him another plant in place of the plant wrongfully taken, amounted to an abandonment of his right to sue in tort, and was equivalent to a sale on credit to the defendant, passing the title to him and, through him, to all who held under him. See, in this connection, Southern Ry. Co. v. Kinchen, 103 Ga. 186 (29 S.E. 816). It follows from what has been said (conceding, but not deciding, that the suit was properly brought against H. G. Griswold individually) that there was no error in granting the nonsuit. Judgment affirmed. Luke and Bloodworth, JJ., concur.