Byrd v. Freeman

Court of Appeals of Georgia

Byrd v. Freeman

122 S.E. 630, 32 Ga. App. 112, 1924 Ga. App. LEXIS 303

CourtCourt of Appeals of Georgia

DecidedApril 19, 1924

Docket15061

StatusPublished

Cited by2 cases

This text of 122 S.E. 630 (Byrd v. Freeman) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Byrd v. Freeman, 122 S.E. 630, 32 Ga. App. 112, 1924 Ga. App. LEXIS 303 (Ga. Ct. App. 1924).

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Opinion

Jenkins, P. J.

This was a suit in trover to recover seven bales of cotton, which the plaintiff claims were illegally converted, and which the defendants claim were purchased of the plaintiff through one of the defendants, acting as agent for the other, and applied on a debt to the latter owing by the plaintiff.

1. The testimony upon the question of sale or conversion was in conflict, but the evidence was sufficient to authorize a verdict in plaintiff’s favor upon that issue.

2. An agent may be sued in trover on account of an illegal conversion of property made in behalf of the principal. Miller v. Wilson, 98 Ga. 567 (1) (25 S. E. 578, 58 Am. St. Rep. 319). And while, in a suit on contract, the principal and his agent cannot be [113]*113joined in the same action, the rule is different in an action sounding in tort. Commercial City Bank v. Mitchell, 25 Ga. App. 837 (105 S. E. 57). The evidence for the plaintiff was such as authorized a finding that both of the defendants were parties to the alleged conversion. The charge of the court upon the subject of agency was more favorable to the alleged agent than he was entitled to, under the above statement of the law.

3. While there was testimony by a witness for the plaintiff that the value of the cotton sued for was in the amount of the ver.dict now excepted to, the testimony referred to was in general terms only, and the evidence of this witness plainly indicated that the value of the number of pounds of cotton sued for could not amount to more than $610.42 at the price sworn to by-him. This definite and specific testimony should necessarily outweigh his mere general estimate of value; and direction is given that, should* the plaintiff write off from the judgment the amount of the recovery in excess of $610.42 by the time the remittitur from this court is made the judgment of the court below, the judgment of that court'shall stand affirmed; otherwise the judgment is reversed. The costs of the'writ of error are taxed against the defendant in error.

Judgment affirmed on condition.

Stephens and Bell, JJ., concur.

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Jenkins, P. J.

This was a suit in trover to recover seven bales of cotton, which the plaintiff claims were illegally converted, and which the defendants claim were purchased of the plaintiff through one of the defendants, acting as agent for the other, and applied on a debt to the latter owing by the plaintiff.

1. The testimony upon the question of sale or conversion was in conflict, but the evidence was sufficient to authorize a verdict in plaintiff’s favor upon that issue.

2. An agent may be sued in trover on account of an illegal conversion of property made in behalf of the principal. Miller v. Wilson, 98 Ga. 567 (1) (25 S. E. 578, 58 Am. St. Rep. 319). And while, in a suit on contract, the principal and his agent cannot be [113]*113joined in the same action, the rule is different in an action sounding in tort. Commercial City Bank v. Mitchell, 25 Ga. App. 837 (105 S. E. 57). The evidence for the plaintiff was such as authorized a finding that both of the defendants were parties to the alleged conversion. The charge of the court upon the subject of agency was more favorable to the alleged agent than he was entitled to, under the above statement of the law.

3. While there was testimony by a witness for the plaintiff that the value of the cotton sued for was in the amount of the ver.dict now excepted to, the testimony referred to was in general terms only, and the evidence of this witness plainly indicated that the value of the number of pounds of cotton sued for could not amount to more than $610.42 at the price sworn to by-him. This definite and specific testimony should necessarily outweigh his mere general estimate of value; and direction is given that, should* the plaintiff write off from the judgment the amount of the recovery in excess of $610.42 by the time the remittitur from this court is made the judgment of the court below, the judgment of that court'shall stand affirmed; otherwise the judgment is reversed. The costs of the'writ of error are taxed against the defendant in error.

Judgment affirmed on condition.

Stephens and Bell, JJ., concur.

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122 S.E. 630, 32 Ga. App. 112, 1924 Ga. App. LEXIS 303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byrd-v-freeman-gactapp-1924.

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