Opinion
34125.
DECIDED JULY 16, 1952.
Trover; from Stewart Superior Court — Judge Rees. April 22, 1952.
Carlton Brown, for plaintiff in error.
R. S. Wimberly, contra.
The amended petition alleged a good cause of action in trover as against a general demurrer, and the court erred in sustaining the general demurrer and in dismissing the action.
DECIDED JULY 16, 1952.
T. J. Milner brought a trover action against Ingram LeGrand Lumber Company in the Superior Court of Stewart County. The petition as amended alleged: "1. That Ingram LeGrand Lumber Company, a corporation of said county, is in possession of certain property of your petitioner. 2. Said property being 10,268 feet of timber in lots and valued at $25.00 per thousand, for purposes of your petitioner, and said timber was pine lots cut from the land of T. J. Milner in Randolph County, Georgia, by Dan Spivey and delivered to the mill yard of Ingram LeGrand Lumber Co., located in Lumpkin, Georgia, by Dan Spivey, in the year 1951. 3. Your petitioner permitted one Dan Spivey to cut and haul away said timber and said Spivey was to collect a $25.00 per thousand stumpage value for your petitioner and return it to your petitioner. 4. Said Dan Spivey delivered the said timber to Ingram LeGrand Lumber Company with the intent to collect a cash amount after certain periods of delivery. 5. Ingram LeGrand Lumber Company was or is a creditor of Dan Spivey and refuses to pay the value of said timber to him but without the consent of Dan Spivey took and applied the value of said timber to the indebtedness of Dan Spivey therefore causing him not to be able to return to your petitioner with the stumpage value of said timber and Ingram LeGrand refuses to pay your petitioner $25.00 per thousand for said timber, and refuses to return the timber." The prayer was for $256.69 damages or a return of the timber and for issuance of process. The defendant's renewed general demurrer was sustained and the action was dismissed and the plaintiff excepts.
As against a general demurrer the amended petition alleged that Spivey was the plaintiff's agent for the purpose of cutting, selling and collecting for the timber for the plaintiff as evidenced by the allegation that Spivey "was to collect a $25.00 per thousand stumpage value for your petitioner and return it to your petitioner." (Emphasis supplied.) Where, as here, an agent is in possession of his principal's property for the purpose of selling such property and collecting therefor for his principal, and where the agent delivers such property to a person, who is his creditor, for the purpose of making a sale and collecting therefor on behalf of his principal and that person takes the property, and instead of paying the agent therefor on behalf of the principal, applies the purchase price to the agent's indebtedness to himself, such person is liable in trover to the principal-owner for such property. Stephanson v. Wyatt Hardware Co., 36 Ga. App. 57 ( 135 S.E. 316).
The defendant in error contends that the plaintiff clothed the agent with indicia of ownership and a right to sell, and that the principle announced in Code § 37-113 to the effect that when one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury shall bear the loss is applicable here. We do not agree. A recovery by the plaintiff here will not injure the defendant, but will only place it in the same position it maintained before the delivery of the timber, that of the agent's creditor.
The case of Clarke Bros. v. McNatt, 132 Ga. 610 ( 64 S.E. 795), relied on by the defendant in error, is not applicable in the instant case. In that case the relationship of principal and agent did not exist as in the instant case; there the plaintiff and the third parties entered into a contract whereby the plaintiff was the vendor and the third parties the vendees of the timber in question.
The amended petition stated a good cause of action in trover as against a general demurrer. The court erred in sustaining the general demurrer and in dismissing the action.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.