Martin v. Upshur Guano Co.

77 Ga. 257

• Court: Supreme Court of Georgia
• Decided: December 21, 1886
• Status: Published

Opinion

Jackson, Chief Justice.

The Upshur Guano Company sued Martin for guano shipped from Virginia to him at Rome, Georgia. The guano was tobe delivered at Norfolk, Virginia, on the cars there. The contract was made by letters and telegrams between Rome, Georgia, and Norfolk, Virginia. The plaintiff in error was a dealer in fertilizers, who sold to the planters, and the • Upshur Guano Company was a wholesale dealer that sold to him.

The only defence is, that the contract, by legal construction, was made in Georgia, and that the bags in which it was shippéd were not branded and tagged according to the Georgia statute.

From an examination of the record, and investigating the facts disclosed by the correspondence in' connection with the delivery in Norfolk, Virginia, Ave conclude that it is a Virginia contract, and not' within the provisions of our statute in respect to branding and tagging the bales of fertilizers, especially as this is the dealing of a wholesale dealer outside of Georgia with a retailer within fhe State.

The point made is the technical one that the letter or telegram whereby the proposition of one side is accepted by the other fixes the place where the contract is made, and if that be written in Rome, Georgia, that is the place of the contract. From an examination of the correspondence, the propositions and answers, it will be seen that it is not easy, under this rule, to fix where the final acceptance was made by the letter or telegram last written assenting to a prior proposition; and in such a case the place of sale and delivery on the cars there must be held to fix the place of the contract.

Such should certainly be the conclusion where the entire legislation of this State, requiring these brands and tags and making sale without them penal, shows that the sale contemplated and intended by the act is a sale actually, and not constructively, made in Georgia. A sale with actual delivery without the State, unless made in fraud of the statute, which is not the case in this delivery in Virginia, could not be well held illegal and penal, and therefore not collectible in the courts of this State, for the absence of that which is contemplated to be done in Georgia. See Code, §§1553(a) to 1553(h), 1571, 1572, 1573, 1574, 1575,1576,1576 (a, b, c, d, e, f, g.)

The acts compiled in these citations show that the person in whom is the property when the fertilizer is landed in a Georgia port is the person to have it inspected, branded and tagged, and the title to the property was in Martin when it left Virginia and before it landed on Georgia soil.

Judgment affirmed.