BREWTON et al.
v.
WOODALL et al.
35772.
Court of Appeals of Georgia.
Decided September 9, 1955. Adhered To On Rehearing October 11, 1955.*715 John W. Underwood, Jackson & Graham, B. P. Jackson, for plaintiffs in error.
Brannen, Clark & Hester, Perry Brannen, W. C. Hodges, contra.
QUILLIAN, J.
1. Code § 96-110 is intended for the protection of the planter or commission merchant and not for the buyer of farm commodities.
2. When, at an auction sale of farm commodities, a commission merchant pays to the planter the amount of the vendee's bid, the commission merchant succeeds to all the rights of the planter arising from the sale.
3. Where a commission merchant sets aside certain bags of pecans in a special area of a warehouse allotted to a vendee, and places upon such bags numbers indicating that they are the property of the vendee, and the vendee gives to the commission merchant a check for the purchase price of the pecans, there is such constructive delivery of the pecans as meets the requirements of Code § 96-107. Tift v. Wight & Weslosky Co., 113 Ga. 681 (39 S.E. 503).
4. When the vendee, after the bags are so placed and marked, is permitted to remove them at will from the warehouse and does select and remove a number of them, the constructive delivery referred to in the preceding headnote is converted into actual delivery of the pecans. See the analogous case of Georgia Refining Co. v. Augusta Oil Co., 74 Ga. 497.
5. The vendee in exercising dominion over the pecans is estopped to deny delivery. McDonald v. Ellis 17 Ga. App. 471 (87 S.E. 711).
6. The fact that through no fault of the commission merchant the warehouse is subsequently consumed by fire and the pecans destroyed does not affect the obligation of the vendee to pay their purchase price, and such fact affords no defense to the check given for that purpose.
7. The evidence demanded a finding that title to the pecans had passed to the defendants, and they were therefore liable for the purchase price. The trial court erred in granting the defendants' motion for a judgment notwithstanding the verdict, and in not granting the plaintiff's motion for a judgment notwithstanding the verdict.
Judgment reversed. Felton, C. J., and Nichols, J., concur.