Skellie, for use, vs. The Central Railroad and Banking Company of Georgia.

We think that some of this testimony was admissible and some not admissible. In offering this testimony, as above set out, the plaintiff attempted to prove too much; he proposed to prove a great deal that had nothing to do with the contract between him and the railroad company. That the plaintiff bought the melons from Cooper & Harper, on condition that he was to draw upon Chamberlain & Co. and that they should accept his drafts, had nothing in the world to do with the contract between the plaintiff and the railroad company. And inasmuch as all this testimony was offered as a whole, that which was relevant not being separated from that which was irrelevant and inadmissible, we think the court did right to exclude it.

2. There were several propositions on the part of the plaintiff to amend his declaration; but the court refused to allow the amendments. We see no reason for the amendments; for the declaration was good as it stood. And while he had a right to amend in form or substance as he pleased, and the court had no right to refuse to allow him to amend, it seems to us, by the terms of his proposition to amend, that he would have amended himself out of court. It would seem that his purpose in amending was, to avoid what he conceived to be the consequences of his own act in having agreed, after the alleged breach of contract, to the change of destination of the melons. He seemed to apprehend that the result of this might be to relieve the company from liability. But in this he was mistaken. If there was a breach of contract by the railroad company, and the melons were afterwards, by his consent, shipped to New York and there sold at a loss, as alleged in this case, the shipment and the sale of the melons in New York was for the benefit of the railroad company, and it was their duty to make good his loss. He could have taken the watermelons in Savannah and sold them for whatever he

Skellie, for use, vs. The Central Railroad and Banking Company of Georgia.

could get, after this breach occurred, if any did occur, and the railroad company would have been liable for his loss. Under his declaration, he could have recovered, if he had proved what he proposed to prove by the agent of the railroad company, viz. that if the watermelons, after they were delivered to the agent, had been put on board the defendant's cars by a certain time, they would have reached Savannah in time to be shipped on the "Gate City" to Boston. It was a question for the jury to determine, whether after the watermelons were delivered to the railroad company, they had sufficient time to transport them to Savannah and place them upon the steamer before its departure. If this was true, and if there was a breach of the contract by the company in failing to deliver the melons on board the steamer in due time, any agreement that the plaintiff may have made afterwards as to the change of destination or consignment of the melons, was for the benefit of the railroad company; and he would be entitled to the damages occasioned by the breach.

3. The plaintiff also proposed to prove by the defendant's agent, "that at the time this bill of lading was delivered by the railroad, at the same time and in the same presence and with the consent of the agent of the railroad at Fort Valley, the draft was drawn upon the bill of lading in favor of Cooper & Harper, and the bill of lading and the draft both turned over in the presence of the railroad agent to Cooper & Harper, and the railroad agent knew Cooper & Harper were the real owners of the bill of lading and the watermelons"; which testimony, upon objection, was rejected. We think that this testimony was irrelevant and that it was properly rejected.

4. Under the testimony, as it appears from the record in this case, we think the court was right in granting the nonsuit.

Judgment affirmed.

Wolfe et al. vs. Claflin & Company et al.

WOLFE et al. vs. CLAFLIN & COMPANY et al.*

1. As a general rule, a party must pursue his legal remedies to their available extent before he can go into equity for relief; but this rule is not without exceptions. Where a creditor shows that his rights are in peril; that he has sold goods to a defendant upon the faith of the latter's representations, which were false and fraudulent; that he rescinded the contract and claimed the goods as his own; and that defendant had given a mortgage on the goods to a person residing in another State, which was claimed to be fraudulent, which had been foreclosed, and under which the goods were about to be sold, a case for equitable interference is sufficiently made out.

2. In a case of this kind, the chancellor may look to the whole case, its general countenance and bearing, and after considering the case as presented by the pleadings and proofs submitted, should, if he believes the ends of justice require it, put his hands upon the property in question and keep it in statu quo until a jury can pass upon the case.

(a) In this case, a wise discretion was exercised, and the rights of the defendants guarded by requiring bond of complainants before appointing a receiver.

May 21, 1888.

Equity. Injunction. Receiver.

Remedies. Debtor

and creditor. Fraud. Before Judge JENKINS. Morgan At chambers, March 28, 1888.

county.

Reported in the decision.

FOSTER & BUTLER and CALVIN GEORGE, for plaintiffs

in error.

MCHENRY & MCHENRY and WEIL & BRANDT, contra. BLANDFORD, Justice.

1. As a general rule, a party must pursue his legal remedies to their available extent before he can apply to a court of equity for relief; but this rule is subject to some exceptions. Where a party shows that his rights are in peril and he is in danger of losing them; that he

*BLECKLEY, C. J., did not preside in this case, on account of indisposition.

Wolfe et al. vs. Claflin & Company et al.

had sold goods to the defendant upon the faith of the latter's representations, which were false and fraudulent, and afterwards rescinded the contract and claimed the goods as his own; and that the defendant had given certain mortgages on the goods to persons residing in another State; we think this makes out such a case as falls within the ruling in the case of Cohen vs. Meyers, Cohen & Co., 42 Ga. 46. In that case this court held that a creditor, although not a judgment creditor, might, under certain circumstances, resort to equity. And that case is sustained by the rulings in Cohen & Co. vs. Morris & Co., 70 Ga. 319; Johnson & Co. vs. O'Donnell & Burke, 75 Ga. 456; Orton et al. vs. Madden et al., 75 Ga. 83.

2. It is further insisted in this case that the allegations in the bill were not sustained by affidavits or proof submitted to the chancellor on the hearing; and therefore that he committed error in granting the injunction and appointing a receiver. We think that in a case of this sort, the chancellor may look to the whole case, its general countenance and bearing, and after having considered the case as presented by the bill, together with such proofs as may be submitted to him, should, if he believes the ends of justice require, put his hands upon the fund in question and keep it in statu quo until a jury can pass upon the case. And only a very strong case would authorize this court to interfere with the discretion of the court below in so doing. We think this position is fully sustained by the authorities cited by counsel for the defendant in error. Wachtel vs. Wilde, Jr., & Co., 58 Ga. 50; Albany and Renssellaer Iron and Steel Co. vs. Southern Agricultural Works, 76 Ga. 169. We think, therefore, that the chancellor committed no error in granting the injunction and appointing the receiver; that this is a proper case to be held up until the

White vs. Furtzwangler.

matter can be investigated before a jury. And while great harm might come to these complainants, the defendants in error, if the injunction were not granted and a receiver appointed, we cannot see any harm that can come to the plaintiffs in error, inasmuch as the complainants were required to give bond and security to the plaintiffs in error, for all damages that might be sustained by them in consequence of this proceeding in the event the same should not appear to be well-founded. Judgment affirmed.

WHITE US. FURTZWANGLER.

1. Under the evidence, it seems that the jury found too small a sum in favor of defendant in error, rather than too large.

2. If there were any error in the charge complained of in the motion for new trial, it was error favorable to plaintiff in error.

May 4, 1888.

Mortgages. Verdict. Charge of court. Before Judge WELLBORN. Lumpkin superior court. April term, 1887.

Furtzwangler filed his petition to foreclose his mortgage on two lots of land, containing eighty acres, and "also the water-ditch running from Camp and Crooked creek to said lots of land, used for mining purposes, all together known as the Pigeon Roost gold mine." He alleged that this mortgage was given by George W. White to secure a promissory note for $5,000, and that 300 had been paid thereon.

White interposed his defence to this effect: He bought from plaintiff the two lots of land and the waterditch, with the flumes, trestles, privileges, etc. connected with the ditch, as one entire property and for one entire price, which was $6,500. At the time of the pur