McMekin v. Planters Warehouse Co.

Bloodworth, J. (After stating, the foregoing facts.) On certain material issues the evidence was conflicting, and the disputed facts should have been submitted to the jury. The jury should have been allowed, under appropriate instructions, to determine : (a) Whether defendant was merely a warehouseman, or a cotton factor and commission merchant. (b) If the defendant was a “mere warehouseman,” whether or ' not' it gave the plaintiff the thirty days’ notice, required by § 3530 of the Civil Code (1910), of its intention to sell the cotton. It would hardly be contended that a sale without notice, and in the absence of a contract authorizing it, was warranted. Whigham v. Fountain, 132 Ga. 277 (1) (63 S. E. 1115); Planters Warehouse Co. v. Hardin, 30 Ga. App. 459 (1) (118 S. E. 441). (c) If the relation between the parties was that of principal and factor, then the question should have been submitted to them whether the sale was made in good faith and in the exercise of a sound discretion as required by usage of the locality where the factor resides. Civil Code (1910), § 3369; Whigham v. Fountain, supra, 277 (3); Willingham v. Rushing, 105 Ga. 72 (1) (31 S. E. 130); Planters Warehouse Co. v. Hardin, supra, 459 (2); Heffner v. Gwynne-Treadwell Cotton Co., 160 Fed. 635 (5). In Gordon v. Cobb, 4 Ga. App. 51 (60 S. E. 821), Judge Powell said: “When the consignment is made generally, without any special orders as to the time and mode of sale, and the factor makes advances and incurs liabilities on the footing of such consignment, the legal presumption is, that the factor is to be clothed with the ordinary rights of factors, to sell, in the exercise of a sound discretion, at such time and in such manner as the usage of trade and his general duty require” (italics ours). Under the foregoing decisions and the facts of this case, the judge erred in directing a verdict. Judgment reversed. Broyles, G. J., and Luke, J., concur.