Bell v. G. Ober & Sons Co.

23 S.E. 7, 96 Ga. 214

• Court: Supreme Court of Georgia
• Decided: May 13, 1895
• Status: Published

Opinion

Lumpkin, Justice.

The official report sets forth a statement of so much of the record as is necessary to an understanding of the following discussion.

1. The case was tried in the court below upon a wrong theory. An essential element in measuring the damages was the value of middling cotton at the time the defendant’s note became due, which was November 1st, 1890. Code, §2774. A creditor’s recovery from his debtor in an action of trover for converting collaterals cannot exceed the amount of the debt with legal interest. Section 3077 of the code, which declares that in estimating the value of personalty unlawfully detained, the plaintiff may recover the highest amount which he can prove between the time of the conversion and the trial, can be applied in a case like this only where it affirmatively appears that the debt will not be overpaid by a recovery so measured. In no case can a plaintiff in an action of trover for the wrongful conversion of his security, recover more for the loss thereof than he could recover were his action founded directly on his debt or demand. Clark et al. v. Bell, ex’r, 61 Ga. 147; Horne v. Guiser Co., 74 Ga. 790; Bradley v. Burkett, 82 Ga. 255. As the evidence in the present case failed entirely to show the value of middling cotton at the time when, and the place where, the defendant’s note was due and payable, the jury had no legal basis upon which to calculate the amount of the defendant’s liability. Cotton was worth in February, 1891, only 7 or 7J cents per pound. At the time of demand, it was worth 7f cents. It rose before the trial to 9¿ cents. The court by its charge left the jury free to assess the damages at the advanced rate; and this was certainly error.

2. The correctness of the propositions announced in the 2d head-note, when considered in connection with the facts to which they relate, will be obvious without argument.

3. It does not appear from the record before us that the defendant filed any plea alleging fraud in procuring the notes and contract in evidence. Therefore we cannot say that the court erred in rejecting evidence offered to prove the existence of such alleged fraud.

Judgment reversed.