Dawson Manufacturing Co. v. Brunswick & Albany Railroad

51 Ga. 136

• Court: Supreme Court of Georgia
• Decided: January 15, 1874
• Status: Published

Opinion

McCay, Judge.

There may be grave doubt whether the contract under which these cars were delivered by the plaintiffs to the railroad company was not in truth a mortgage. The form of every mortgage is a deed to the property, subject to conditions. It is the circumstance that the arrangement is only a security for the payment of money, that characterizes the instrument as a mortgage, and much might be said in favor of that being from the face of it the sole purport of this contract. But however this may be, the plaintiffs, in their answer and in their motion to dissolve the injunction, treated the paper as reserving to them the title, and as making the sale only conditional, and so the judge treated it in his judgment dissolving the injunction and giving them up the cars. He, expressly required them to give .up their claim on the railroad for their notes, the price of the cars. This judgment also expressly allowed them to put before the receiver their claim for rent and for damages. Nobody objected to or appealed from this judgment, and they are therefore to be held as assenting to it. If the trade was rescinded for non-payment of the money, we think in equity the car company has a right to rent and to damages. On what principle can the railroad company be presumed to keep and use the cars, not pay for them, and force the builders to assert their title, and not pay for the use of them in the meantime, as well as damages for their misuse. We say nothing as to the six cars, as, so far as we can see,, that issue was not distinctly made.

Judgment reversed.