Willingham vs. Hooven, Owens, Rentschler & Company. on equitable terms; he could not have repudiated the contract, and at the same time have retained possession of the property about which it was made. When the defendants brought trover for the property they elected to abandon the contract; the complainant, however, did not fully assent to this, and enjoined their action; the only purpose for which this injunction could have been granted was to keep the property in statu quo, to answer whatever either party might recover on the final hearing of the suit. The jury have adjusted the equities between them, and in doing so have largely reduced the defendants' claim; the decree does not dispossess the complainant of the property, but fixes the lien of the defendant on it, superior to all other liens outstanding against the complainant. In the opinion of the court, this was the only purpose for which the suit could be maintained, and we think his view of it was correct. 3. The only remaining question is one of more difficulty than the others. The complainant claimed damages for alleged losses sustained by abandoning his planting operations and going into the milling business, for improvements made in order to carry on that business, for alleged loss of property by reason of having got an outfit inferior to that for which he bargained, for additional purchases of timber, stock, vehicles, etc., to run a mill of the capacity of that for which he bargained, for personal services of himself and assistants while he was running it, at least until its capacity had been fully tested. The court rejected proof of each of these items, as is shown in the first and second grounds of the motion for a new trial. Such damages seemed, in the opinion of the court, to be only the imaginary or possible results of the conduct complained of, and to be caused by other and contingent circumstances largely preponderating, and were therefore too remote to be the basis of a recovery; that though contingent to some extent, they were not the legal and natural result of the acts of the defendants; that, though traceable to such acts, Willingham vs. Hooven, Owens, Rentschler & Company. they were not the legal or natural consequences of such acts, and were for that reason too remote and contingent. Code, $$3072, 3073. This ruling appears to be fully sus tained by the authorities. "Remote or consequential damages are not allowed, unless they can be traced solely to the breach of the contract, or are capable of exact computation, such as the profits, which are the immediate fruit of the contract and are independent of any collateral enterprise entered into in contemplation of the contract." Code, §2944 and citations. The case sought to be made by this evidence is, it seems to us, within the very words of this section of the Code. In fact, the compilers of the Code embodied in this section the former rulings of this court, particularly in Coweta Falls Manufacturing Company vs. Rogers, 19 Ga., 417; Cooper vs. Young, 22 Ib., 269; Red vs. The City Council of Augusta, 25 16., 386, 390. The case of Masterton and another vs. The Mayor, etc., of Brooklyn, 7 Hill N. Y. R., 60, 67, 68, meets and settles every possible phase of the questions raised on the introduction of this testimony. The court, in giving the charge excepted to in the 7th and 13th grounds of the motion, made every deduction in favor of complainant to which he was entitled under the law; in short, the entire charge sent up in the record is clear and able, just to the parties, and certainly leaves no room for complaint, especially on the part of the plaintiff in error. In the Southwestern R. R. Co. vs. Rowan and another, 43 Ga., 411, 414, which was a suit for refusing to receive cross-ties under a contract to deliver them, it was said, "The general rule undoubtedly is, that the measure of damages in a contract like this is the difference between the agreed value and the market value of the thing contracted for, unless the article has no market value." Loder vs. Kerkulé, 3 C. B. (N. S.), 128, closely resembles the present case, and there it was held that, "in an action for the breach of a contract by delivering goods of a quality inferior to that contracted for, the proper measure of damages was the difference between Willingham ts. Hooven, Owens, Rentschler & Company the value of the goods of the quality contracted for, at the time of the delivery, and the value of the goods then actually delivered, or their value, as ascertained by a re-sale within a reasonable time; and the fact of the goods having been previously paid for cannot be taken into consideration in estimating the damages." See the cases cited in note at the end of this case, 91 E. C. L. R., 139. It is to be noticed that the complainant at no time returned, or offered to return, this machine, with its fittings, to the respondents, but continued to use it, with all of its alleged defects, for some months after he had completed the test to ascertain its quality. The judge-in charging the jury that if the machinery was not up to the contract in any respect, if it was defective in material, workmanship or capacity, and the complainant, in testing it, as he was authorized to do by the contract, incurred expense, damage or cost, they should first see what was the difference between its agreed value and its real value at the time of the delivery, or at the time the test was completed, and they would fix the market value as the amount to be recovered by the defendants, and then deduct from this amount any damage they might find for the complainant, and find for the defendants the balance with interest; or in the event that the amount of damages to which the complainant was entitled exceeded the market value of the machinery, they would find for him the amount of such excess, as well as the machinery-surely did not hurt the complainant. The rule as to damages here laid down was, we think, more favorable than could have been demanded, under the authorities we have examined. Had the defendants made objection, they would have been more favorably regarded, and entitled to much more consideration than those so confi. dently relied on here. We think this verdict supported by the evidence, and, as before stated, we see no error in this record prejudicial to the complainant's rights. The defendants did not except, and there was no error in refusing to disturb the finding of the jury. Judgment affirmed. Fouche, assignee, vs. Brower. FOUCHE, assignee, vs. BROWER. [This case was argued at the last term, and the decision reserved.] 1. A creditor who has been defrauded by misrepresentations of the (b.) Creditors are a favored class, and courts will always lend them (a.) If such an assignment was valid when made, it will not fail for 3. A corporation can only act by and through its members and appointed agents. Their action is necessarily its action, and an attempt to separate the two and hold the bank to be the victim of the fraud of the members of the corporation and owners of the property, and to relieve it from responsibility for their actions, is impracticable. 4. At common law, or without special statutory authority, a voluntary assignee cannot maintain suits for the benefit of creditors, for whom he holds in trust the effects assigned, which the assignor could not have maintained; and there is no such authority in this state. (a.) If any such inference can be drawn from the act requiring a sworn schedule to be attached to the assignment, it was passed 74 251 107 817 74 251 128 827 Fouche, assignee, vs. Brower. subsequently to the execution of this assignment, and therefore is not applicable to it. (b.) The assignee having no power to assert a right or title with which the assignor had parted prior to the execution of his deed, neither has his successor in the assignment such power, although appointed by the court. (c.) The sections of the Code regulating the collection and distribution of the assets of a bank by a receiver appointed upon a judg ment forfeiting its charter, do not apply in the case of a voluntary assignment by the bank of its assets to pay its debts according to the requirements of law. 5. Parties who have combined to defraud others cannot invoke the aid of a court to enable them either to enforce or to rescind such an arrangement, nor can a voluntary assignee to pay debts or the successor of such assignee do so. (a.) Suggestions as to the powers which might properly be given to assignees, executors and administrators as to cases of fraud by their assignors or decedents. (b.) The verdict sought to be set aside could not have been other than it was. January 6, 1885. Corporations. Fraud. Assignments. Receiver. Debtor and Creditor. Banks. Stock and Stockholders. Torts. Actions. Verdict. Before Judge BRANHAM. Floyd Superior Court. September Adjourned Term, 1883 Fouche, assignee of the Bank of Rome, filed his bill against Brower, alleging, in brief, as follows: On March 2, 1874, the Bank of Rome was chartered, and organized with a paid-up capital of $50,000.00, divided into one thousand shares. About February 1, 1879, Brower became the owner of all of the stock; and on February 20, 1879, he transferred all of this stock to Frost, Samuel & Co. for $7,600.00; and simultaneously with the transfer, without consideration, that firm conveyed to Brower all of the property and assets of the bank, except the banking house, and he converted these assets to his own use, amounting to $40,000.00. They consisted of certain stocks, bonds, mortgages and personalty, a note and account due by himself, amounting to $12,000.00, a note of J. & S. |