Jones v. Cordele Guano Co. , 94 Ga. 14 ( 1894 )

Lumpkin, Justice.

1. The act of December 27, 1890 (Acts of 1890-91, vol. 1, p. 142), providing that it shall be lawful for any purchaser of fertilizers to require the person selling to furnish a sample of the same for deposit with the ordinary, and also providing for the preservation and transmission of such sample by the latter to the State chemist, the analysis of the same by this officer and the sending by him of a copy of the result back to the ordinary, is cumulative only and not exclusive. This act contains nothing to prevent a purchaser of fertilizers from taking, on his own account, a sample of the same, having it analyzed by whomsoever he pleases, and introducing evidence, for whatever it may be worth, when the same is relevant, as to the result of this analysis. Of course, in order to make the statement of the State chemist transmitted to the ordinary conclusive evidence, the provisions of the act in question must be complied with. Where this is not done the act has no application at all.

2. Section 1558(b) of the code declares that: “A copy of the official analysis of any fertilizer or chemical, under seal of the department of agriculture, shall be admissible as evidence in any of the courts of this State, on the trial of any issue involving the merits of said fertilizer.” As it requires express legislation to render any copy of an analysis of a fertilizer admissible as original evidence, necessarily the terms of the law must be fully and exactly complied with in order to obtain the benefit of its provisions. Therefore, the analysis must be an official one, or a copy of it taken from the records of the department of agriculture cannot be introduced. As we understand our system for the inspection and analysis of commercial fertilizers, samples are taken hy the inspectors and submitted for analysis to the State chemist, who makes reports to the commissioner of agriculture, which reports are recorded in the office of the latter. Analyses thus made are official. We know of no law making official an analysis by the State chemist at the instance or request of a purchaser of fertilizers. Indeed, as we understand it, the State chemist is under no obligation to make an analysis for any private person at all. If he does so, it is simply a matter of courtesy; and although he may report an analysis thus made to the department of agriculture, and it may be entered upon the records of that department, this will not give to that analysis an official character, by virtue of which a copy of it will be rendered admissible as evidence in the courts.

3. Strictly speaking, the commissioner of agriculture should not have recorded in his department any analysis made by the State chemist, except such as the law requires the latter to make and report to that department. It follows that any analysis which is of record in the agricultural department is prima facie official, because, presumably, any analysis of fertilizers made by the State chemist and reported by him to the commissioner of agriculture is of a sample, or samples, furnished the chemist officially by an inspector of fertilizers. Therefore, unless it appears that an analysis of fertilizers made by the State chemist was of a sample received from some other source, a copy of an analysis made by him and certified under the seal of the department of agriculture is admissible in evidence under the section of the code above cited.

4. As intimated in the first division of this opinion, where a private person takes and preserves a sample of fertilizers purchased by him, and procures an analysis thereof to be made by the State chemist, that officer is a competent witness to prove the chemical ingredients of the sample analyzed by him, and his evidence should, in a proper case, be allowed to go to the jury, who are to judge of its value. This ivould be true as to similar evidence by any other competent chemist. After the reception of this expert evidence, it would be admissible for either party to show the effect, or want of effect, of the particular fertilizer on crops, either for the purpose of corroborating the analysis, or of discrediting it. While it is true that the note sued on in the present ease contained an express stipulation that the makers purchased on their own judgment and waived any guarantee as to the effects of the fertilizer on their crops, we think they were nevertheless entitled to show that their crops derived no benefit from the use of the fertilizer in question. It was competent for them to do this, not for the purpose of repudiating or varying the terms of their written contract, or of holding the guano company to a guarantee it had expressly declined to make, but to show that in point of fact the guano did not coime up to the guaranteed analysis branded on the sacks, as required by law. In other words, it was the right of the defendants to show that this guano did not contain the chemical ingredients set forth in that analysis. If the guano failed to produce any beneficial effect on the crops under favorable auspices, this fact would at least tend to show it did not contain the fertilizing elements in the proportions specified in the analysis branded on the sacks.

In Allen v. Young, 62 Ga. 617, this court ruled that: “ The effect of accepting a special guaranty that a ferr tilizer is of a given analytical standard, with restriction of the seller’s liability accordingly, and excluding practical results, is to entitle the purchaser to a commodity corresponding chemically in all respects to tbe standard. The means of test may not be exclusively direct; possibly there may be indirect means also; but actual production is neither, without evidence as to cultivation, season, soil, etc.” In that case, Bleckley, Justice, said, in substance, that the effect of the fertilizer on the crops could not alone furnish the test of determining whether or not the fertilizer came up to the given standard. Again, in Hamlin v. Rogers, Worsham & Co., 78 Ga. 631, it was said : “ "Where there is other testimony, as, for instance, where another analysis is put in evidence to show that the fertilizer does not come up to the standard laid down by the State chemist, those facts may be used in aid of such other analysis.” In this latter case, the note given for the fertilizers expressly stipulated that the purchaser was to take the fertilizers without regard to their effect on crops. See the cases referred to on page 633 of the volume last cited; also, Scott & Co. v. McDonald, 83 Ga. 28. There are doubtless other decisions of this court which, either in terms or on principle, sustain what is now ruled - on the point under consideration, but the above will suffice.

Judgment reversed.