Blackshear Manufacturing Co. v. Perry , 48 Ga. App. 355 ( 1934 )

Sutton, J.

1. Where a vendor of fertilizer in this State sells certain sacks of fertilizer which are not tagged or branded as provided in section 4 of the act of August 24, 1929 (Ga. L. 1929, p. 228), the failure to comply with the law in this respect does not render the sale void and does not render a mortgage note given by the purchaser to the vendor for the purchase price of the fertilizer void and unenforceable, since the passage of the act of 1929, but the purchaser is relegated to the penalty prescribed in section 9 of the act. Blackshear Mfg. Co. v. Perry, 178 Ga. 23 (172 S. E. 24).

(а) Therefore the court below should have sustained the demurrer of the plaintiff to that part of the affidavit of illegality, interposed by the defendant, which set up as a defense that the sale of the fertilizer was void and the mortgage note void and unenforceable; but the allegations thereof that the fertilizer sold the defendant was not tagged or branded as required by section 4 of the act of 1929 were good and upon proof thereof upon the trial of the ease the plaintiff would be subject to the penalty provided in section 9 of the act.

(б) It follows that the court below erred in refusing to give in charge to the jury the timely requested instruction to the effect that if the fertilizer sold the defendant was not tagged or branded as provided in section 4 of the act of 1929, then the defendant would only be entitled to set off or recoup against the plaintiff the penalty provided in section 9 of the act; and in charging the jury that if any portion of such fertilizers sold defendant were not tagged or branded as provided in said section, then the sale thereof would be void and plaintiff would not be entitled to recover any amount of the plaintiff.

2. Section 2 of said act of 1929 does not apply to manufacturers of fertilizers where such manufacturers have complied with section 1 of the act by registering with the Commissioner of Agriculture the different brands of fertilizer to be sold or offered for sale by them. Blackshear Mfg. Co. v. Perry, supra.

3. The above principles being controlling in the instant case, it is unnecessary to pass upon the remaining assignments of error, and it was error to overrule plaintiffs motion for new trial.

Decided January 12, 1934. Rehearing denied January 29, 1934. J. B. Moore, 8. F. Memory, 8. F. Memory Jr., for plaintiff. Highsmith & Eighsmith, for defendant.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.