
    Palmour v. The Durham Fertilizer Company.
   Lumpkin, J.

1. Where the defendant in an action of bail-trover, being unable to give the security required by law, was imprisoned for a failure to deliver up the property sued for, neither a petition filed by him under section 3420(a) of the code to obtain a release from the imprisonment, nor the plaintiff’s traverse or answer to the same, nor any of the proceedings had in this matter, formed any part of the pleadings upon either side in the main action.

2. If the plaintiff in such action fails to show title in himself, he cannot recover either the property sued for or its value in money, although it may be conceded at the trial that the defendant was indebted to the plaintiff for the property in question, the defense being that the defendant had purchased the property and was liable on account for its value. An action of trover, which proceeds upon the assumption that the plaintiff has the title to the property sued for, cannot under any circumstances be converted into an. action on account for the price of property sold and delivered, which necessarily involves the contrary assumption that the title had passed to the defendant.

July 29, 1895.

Bail-trover. Before Judge Wellborn. Hall superior court. July term, 1894.

Tbe Durham Fertilizer Company sued Palmour to recover certain bags of guano, alleged to be of tbe value of $416.10. Palmour, being imprisoned under tbe bail process, presented bis petition for release from custody, on tbe ground that be was unable to give tbe bond and security required, and unable to produce tbe property sued for. In this petition be stated that be purchased from plaintiff several tons of fertilizer, and under tbe contract with plaintiff, was to give bis notes for tbe same payable November 15 and December 15, 1890, and was to sell tbe fertilizer to farmers on time, taking tbeir notes therefor, payable in November and December, 1890, and was to collect said notes, and out of tbe proceeds to pay said purchase notes; that under tbe contract plaintiff furnished him with tbe fertilizer, which be sold to farmers, taking tbeir notes therefor; that these notes are not yet due, but be bolds them and will proceed to collect them promptly at maturity to pay plaintiffs tbeir proportion; and that be has tendered to plaintiff bis promissory note, according to tbe contract, and has been and is ever ready and willing to deliver plaintiff bis notes due November and December 15, 1890, in accordance with said contract, for the full amount of tbe fertilizer at bis contract price. He was released from custody under this petition, it being provided in tbe order of release that, it appearing that be bad sold certain of the guano and taken notes therefor, payable to himself, he be restrained from selling or assigning any of said notes, without first paying plaintiff tbe amount due it thereon; and in case of collection on said notes, from using the money, without first paying plaintiff the amount due it on such collection. It was further ordered that he make a return to the court of his collections on the guano sales, at the court to which the case stood for trial.

3. The foregoing notes practically dispose of all the questions made in the motion for a new trial. Judgment reversed.

There was a verdict for plaintiff for $416.10, with interest. Defendant’s motion for new trial was overruled, and he excepted. The motion alleges, beside the general grounds, that the court erred in allowing plaintiff, over objection, to treat defendant’s petition for release and plaintiff’s answer to the same as a part of the pleadings in the action to recover the guano; and to set up its answer to his petition for release, as a part of its original action to recover the guano; and to amend its answer to his petition for release, by inserting a prayer that on final trial it be allowed to take a judgment against defendant for the amount he owes it.

It appears that the guano sued for was furnished to defendant under a contract whereby plaintiff agreed to furnish to him certain amounts of fertilizer at certain prices, settlement therefor to be made by the first of May, 1890, by giving his notes payable in the next November and December. For any time purchases he was to deposit with plaintiff the farmers’ notes, liens and accounts arising from the sale of the fertilizers, the same to be held as collateral security for the payment of his notes, and the proceeds of such collaterals to be applied first to the payment of his notes whether mature or not. It was further agreed, that any fertilizers shipped to him under this contract were the property of plaintiff until his notes or accounts were fully paid; and that the notes, liens and accounts arising from sales should be the property of the plaintiff until his notes or accounts were fully paid. It further appears, that he failed to give his notes in settlement at the time stipulated, or to turn over to plaintiff ■the farmers’ notes or accounts. In October, 1890, demand was made on bim for payment for tbe fertilizer sent io bim, or for return of tbe same or delivery of tbe notes .and tbe accounts be bad taken for sales. Tbe demand was not complied witb, save as to turning over tbe portion of the fertilizer remaining in bis possession; and this suit was for tbe balance. He insisted at tbe trial that, tbe title to tbe property sued for having passed out of plaintiff, it •could not recover in this action, although be admitted that be owed plaintiff for tbe property. It was replied that, under this view, plaintiff was entitled to a verdict and judgment against defendant for tbe value of said property; and tbe court so charged, in effect. This ruling forms •the basis of several grounds of tbe motion for new trial.

II. II. Dean, for plaintiff in error.  