author: Wade, C. J. Per Curiam.

text:
    8957.
    CHARLESTON AND WESTERN CAROLINA RAILWAY COMPANY v. COTTONSEED OIL COMPANY.
    1. Since in reckoning the period of 30 days within which a bill of exceptions must ordinarily be tendered to the trial judge (Civil Code, § 6152), only the first or last day shall be counted, and if the last day shall fall on the Sabbath another day shall be allowed in the computation, the bill of exceptions in this ease was signed in time.
    2. Where a motion to open a default and set aside a judgment is based both upon contentions as to its legal invalidity and upon reasons which necessarily must be supported by extrinsic evidence only, and the judgment complained of recites that the motion is overruled “after hearing •arguments of counsel and considering the evidence submitted,” and the only assignment of error in the bill of exceptions is that “the court erred in not granting said motion to open said default and to set aside the said judgment,” the exception is too indefinite to present any question for consideration by this court or to furnish grounds for reversing-the judgment, since such a case does not involve the mere exercise of the discretion of the judge (as in the grant or refusal of a temporary injunction), and issues of both fact and law were determined by the judgment, and it is impossible for this -court to know from the exception taken whether the judgment on the law or on the facts is complained of.
    Decided May 16, 1918.
    Rehearing denied July 9, 1918.
    Garnishment; from city court of Richmond county—Judge Black. May 4, 1917.

      W. K. Miller, for plaintiff in error.

      Alexander & Lee, contra.
   Wade, C. J.

A motion to dismiss the bill of exceptions in this case was made upon tlie grounds, (1) that it was not presented within the time prescribed by law, as the judgment complained of was rendered on May 4, 1917, at chambers, and the bill of exceptions was certified on June 4, 1917, more than 30 days from the date of the decision at chambers, “and therefore, under the provisions of section 6152 of the Civil Code (1910), was not certified within the time prescribed by law;” and (2) that no sufficient assignment of error is contained in the recital in the bill 'of exceptions that the appellant, “being dissatisfied with the ruling and desiring to except to the Court of Appeals, says that the court erred in not granting said motion to open said default and to set aside the said judgment.”

Though this rule does not apply when a period of months or years is prescribed (McLendon v. State, 14 Ga. App. 274, 80 S. E. 692; Brown v. Emerson Brick Co., 15 Ga. App. 332, 83 S. E. 160; Hammond v. Clark, 136 Ga. 313, 322, 72 S. E. 479, 38 L. R. A. (N. S.) 77), “when a number of days is prescribed for the exercise of any privilege, or the discharge of any duty, only the first or last day shall be counted; and if the last day shall fall on the Sabbath, another day shall be allowed in the computation.” Civil Code (1910), § 4, par. 8. This court must take cognizance of the fact that the month of May contains 31 days, and that therefore the period of time from May 4th to June 4th 'of any' given year comprises more than 30 days, if either the first or the last day be counted as required by the statute. The ruling in Mott v. Brunswick Publishing Co., 117 Ga. 149 (43 S. E. 716), that where a judgment was rendered at chambers on June 30, 1902, and a bill of exceptions alleging error therein was tendered to the judge on July 30, 1902, this was not within 30 days from the date of the decision (the month of June having but 30 days), was declared, in Rusk v. Hill, 117 Ga. 722, 726, 727 (45 S. E. 42), to be erroneous, since, in computing the number of days included by this period!, only the first or last day could be counted, and not both the first and the last. This court must likewise take cognizance of the further fact that in the year 1917, excluding May 4th, on which the decision complained of was made, as the first day of the period, and reckoning 30 days thereafter, the last or 30th day would fall on Sunday, the 3d day of June, 1917, and hence, under the precise provisions of the code-section quoted, the bill of exceptions would be signed in time if signed at any time on the day following, or on June 4th, the day on which it was actually signed by the trial judge. Therefore, by the recital, in the bill of exceptions that the judgment complained of was rendered on May 4th, 1917, and by the date of the certificate of the trial judge, June 4th, 1917, it is affirmatively shown (as is required under the ruling in Crawford v. Goodwin, 128 Ga. 134, 57 S. E. 240) that the certificate to the bill of exceptions was signed within 30 days from the date'of the judgment, and hence the bill itself was tendered within that period, and cannot be dismissed on the ground that it was. not certified within the prescribed time. The bill of exceptions does not show that the court did not adjourn within 30 days from the date of its organization. and opening, and therefore it does not appear that the plaintiff in error was entitled to 60 days from the date of the judgment (Civil Code, § 6152) within which to tender the bill of exceptions to the presiding judge. Of course it is well settled, by repeated adjudications, that a recital in a bill of exceptions that it was tendered to the presiding judge within the time prescribed by law'is sufficient to prevent a dismissal upon the ground that it. was tendered too late, even where the certificate of the presiding judge bears date more than 30 days or more than 60 days, as the ease may be, from the date of the judgment, etc., complained of. Under the ruling made above, it is not, however, necessary to consider whether the recital in the bill of exceptions,, “now, within the time prescribed by law, comes” (italics ours) the plaintiff in error, etc., amounts or is equivalent to a statement that within the time prescribed by law comes the plaintiff in error and “tenders” the bill of exceptions, etc. .See, in connection with the entire subject, Civil Code (1910), § 6187; Moore v. Kelly & Jones Co., 109 Ga. 798 (35 S. E. 168); Taliaferro v. Smiley, 112 Ga. 62 (37 S. E. 106); American Freehold Mortgage Co. v. Walker, 115 Ga. 737 (42 S. E. 59); Miller v. Butler, 137 Ga. 119 (72 S. E. 918); Thompson v. Stephens, 138 Ga. 205 (75 S. E. 136); Harnage v. State, 7 Ga. App. 573 (67 S. E. 694).

The second ground of the motion to dismiss the bill of exceptions is based upon the contention that the only assignment of error therein is insufficient to present to this court any definite question for determination. In Kirkland v. Atlantic & Birmingham Ry. Co., 126 Ga. 246 (55 S. E. 23), a very clear statement of the rule applicable in determining the sufficiency of a general assignment1 of error in a bill of exceptions may be found. In that case there was an equitable petition to obtain an injunction, and at the hearing, upon issues of both law and fact, a general order was passed denying the injunction. The bill of exceptions recited these facts and then continued: “To which said judgment refusing and denying the temporary injunction prayed the said plaintiffs then and there excepted, and now except and assign the same as error, and say that the court erred in not granting the temporary injunction as prayed by plaintiffs in their petition.” The Supreme Court declined to dismiss that bill of exceptions for want of a sufficient assignment of error, and in discussing the reasons for the ruling Mr. Justice Lumpkin said, that in such a ease, “if there is a conflict in regard to material questions of fact necessary for the adjudication, and the judgment denying the injunction is general, an exception of the character indicated will at least raise the question whether or not there was an abuse of discretion in such refusal.” Further on in. the same case it was said: “Where the case is on final trial, the province of the judge is to determine the question of law, and the province of the jury is to determine the issues of fact, under the law as given them in charge. If by agreement the presiding judge exercises the functions of both judge and'jury, and it-is desired to except'to his judgment, it is proper that it should appear in the exercise of which function it is claimed that he had erred, and what the error was. On the hearing of an application for an interlocutory injunction, undbr the law, the presiding judge passes both upon questions of law and fact, regardless of any consent of parties, and the rule does not apply, to the same extent.” So it will appear that the Kirkland, case, supra, deals with an exception to the general rule as laid down in Wade v. Watson, 133 Ga. 608 (62 S. E. 922), as follows: “Where a case which did not involve the mere exercise of the discretion of the judge in the grant or refusal of a temporary injunction, but was byxconsent on its final trial submitted to the judge to pass upon all questions of law and fact, an exception to his judgment in these words: ‘To which judgment of the'court defendant then and there excepted and now excepts, and assigns the same as error/ is too indefinite to present, any question for consideration by this court or to furnish ground for reversing the judgment.” '

Again, in the case of Patterson v. Beck, 133 Ga. 701 (66 S. E. 911), may be found a full discussion (also by Mr. Justice Lump-kin) of this identical question, and various apparent conflicts in the rule that the “bill of exceptions shall specify plainly the decision complained of and the alleged error” (Civil Code, § 6139) are reconciled. In that case the following language, used in Mutual Building & Loan Asso. v. Glessner, 99 Ga. 747, 748 (27 S. E. 187), is quoted with approval: “But where a judge trying the case upon the law and the facts disposes of it in a single judgment with which the losing party is dissatisfied, the latter in excepting to it ought certainly to give some intimation of what the error consisted. Simply saying, in effect, that such a judgment was wrong, without stating any ground or reason v/hy it was so, opens a broader field of investigation than our law, which requires all errors to be plainly and distinctly set forth, authorizes. It was never contemplated that this court should search around in a loose and general way to discover errors not brought to its attention with, at least, a reasonable degree of clearness and perspicuity.” It was held in the Patterson case, supra,' that the motion to’ dismiss must be overruled because it was distinctly shown that there was' no controversy about facts, that only one question of law was submitted to the court, and that the court decided it adversely to the contentions of the plaintiff in error, and entered a judgment against him, and that he excepted and .assigned this as error. In the opinion in that case it was also said: “Suppose that a case were submitted to a judge without a jury, in which there were various issues of law and of fact, and that he should render a general judgment in favor of the plaintiff for a sum of money. What question would a mere general exception that this was- error present to this court for decision? Would it mean that the.judgment on the facts was contrary to the evidence, or without evidence to support it, or that the judgment was for too large a sum? Or that, without complaining of the finding on the facts, there was some error of law? And what error? Thus in Wade v. Watson, [133 Ga.] 608 (66 S. E. 933), the judge passed on issues both of law and fact, and there was a mere general exception. Even where there was an agreed statement of facts [italics ours], it has sometimes been held that a mere exception to a general judgment by the judge without a jury was insufficient, as the real complaint might be that the judgment was too large or too small, or bore interest,-or that the fate-of interest used was wrong, or that there should be no recovery at all under the law, or perhaps other matters. Other instances might be added, but these will suffice. Where there are several things involved in a judgment, the thing complained of ought to bé made to appear.” The identical ruling made in the Wade ease, supra, was again made by the Supreme Court in Adams v. May, 145 Ga. 234 (88 S. E. 938).

In Kimball v. Williams, 108 Ga. 812 (33 S. E. 994), it was said: “This case was submitted to the presiding judge for decision without the intervention of a jury. A judgment was rendered in favor of the plaintiffs. The defendant’s bill of exceptions makes no lawful assignment of error, the only attempt to .do 'so being as follows: ‘To which ruling and judgment the said defendant excepted and now assigns the same as error.’ This language is entirely too general, and does not properly present any question for determination by this court. Accordingly, the writ of error must be dismissed. See Fidelity & Deposit Co. v. Anderson, 102 Ga. 551 [38 S. E. 282], and cases there cited; Peavy v. Atkinson, 108 Ga. 167 [33 S. E. 956]. The rule laid down in the above-cited eases is none the less applicable because this ease was submitted upon an agreed statement of facts. The statutory requirement that alleged errors shall be plainly and distinctly pointed out is imperative and applies to all cases.” In Wheeler v. Worley, 110 Ga. 513 (35 S. E. 639), it was held: “A bill of exceptions in which there, is no attempt to assign error upon a judgment rendered by the court without a jury except to state the contents of the judgment and add thereto the words, ‘to which judgment of the court [the plaintiff in error] then and there excepted and now excepts and. assigns the same as error/ does not comply with the statutory requirement that alleged error shall be plainly and distinctly pointed out.” In Kennedy v. Kennedy, 17 Ga. App. 397 (87 S. E. 157), it was held: “Where a cause involving both questions of law and fact is adjudicated by the judge without the intervention of a jury, and the trial results in a finding in favor of the plaintiff, and upon writ of error to the judgment the ’only assignment of error is a general one, not specifying how or wherein the trial judge erred in his judgment, whether as to matter of law or as to matter of fact, the assignment is too general to be the foundation of.a reversal.” See cases cited in that decision. See also Lamar, Taylor & Riley Drug Co. v. Southern School Book Co., 18 Ga. App. 650 (90 S. E. 174). In Duren v. First National Bank, 18 Ga.App. 653 (2) (90 S. E. 224), it was said: “This case was submitted to the trial judge, sitting by- consent without the intervention of a jury. Evidence was introduced by both sides, and the judge passed an order directing that the. sheriff pay over the money to the bank. The plaintiff in error made no motion for a new trial, but sued out a direct bill of exceptions, in which the assignment of error as to this order was in the following words: ‘To which ruling the said E. G. Duren excepted, now excepts, and assigns the same as error/ A mandatory provision of the Civil Code, § 6139, is that the bill of exceptions shall specify plainly the decision complained of, and the alleged error. This attempted assignment- of error does not specify the error complained of, and therefore is not sufficient to raise any question, either of law or of fact, for review in this court, and accordingly can not be considered.”

In the case now under consideration a motion to open a default and to set aside a judgment against a garnishee was made, which set out in detáil certain reasons why it was contended that the judgment against the defendant in an attachment proceeding was void and illegal, and also alleging certain facts urged by the movant as a good and sufficient legal excuse for the failure of the garnishee to answer the summons served upon it, and insisting that the judgment rendered against the garnishee should be for these reasons set aside, the default opened, and the garnishee allowed to file its answer. An amendment was also allowed ,and filed, which alleged that the judgment against the defendant was void, “there being nothing upon which to found said judgment, there being no appearance by the defendant, no answer by the defendant, and no answer by the garnishee and nothing before the court [no property] of the defendant upon which the process of the court could act.” The judgment rendered in the attachment proceeding by the judge of the city court, no jury being demanded, recites that' the' attachment against the defendant was levied by serving a summons of garnishment on the Charleston & Western' Carolina Railway Company, returnable to the February term, 1916, of said court, and that the garnishee failed or refused to answer at said February term, “and it further appearing, upon proof submitted, that, at the time of the service of the summons of garnishment, said garnishee had in his possession property .belonging to said defendant, W. L, Gray, to the value of more than the indebtedness of said defendant to the plaintiff herein, now, therefore, after Rearing evidence in support of plaintiff’s declaration in attachment, no issuable defense having been filed thereto, and the defendant being in default, and no demand for a trial by jury having been made, judgment is hereby rendered by the court in favor of the plaintiff,” etc. This judgment was dated May 3, 1916, and on the same day a judgment was entered against the garnishee, the Charleston & Western Carolina Railway Company, which recited that the garnishee was in default, that judgment had been rendered by the court .in the attachment proceeding against the principal defendant for the sum therein set out, and further,_ that proof had been submitted “that, at -¿he time of the service of the summons of garnishment, said garnishee had in its possession property belonging to the said defendant, W. L. Gray, to the value of more than the indebtedness of said defendant to the plaintiff herein.”

Even a superficial consideration of the motion to set aside, as outlined above, and of the judgment rendered in the attachment proceeding and in the garnishment proceeding, will clearly demonstrate that at least two main contentions were raised, namely, (a) that the judgment against the defendant in attachment was void, and therefore could not furnish sufficient basis for the judgment against the garnishee; and (5) that under the facts recited in the motion and amended motion to set aside, the garnishee was not at fault, and the judgment against it should be set aside for reasons resting upon alleged facts entirely apart from or extrinsic to the record in the trial. The judgment rendered thereon is that “after hearing argument of counsel and considering the evidence submitted [italics ours], the within motion” is denied and overruled.

Plainly evidence was introduced in support of the motion to set aside, though, in the absence of any brief of evidence in the bill of exceptions itself, we do not know what that evidence was, and therefore it could not be determined by this court, under a proper exception, wliQther any or. all of the grounds of the motion were supported or defeated by the evidence considered by the court in arriving at the judgment complained of, outsi.de of this particular ground of the motion to set aside the judgment, which might possibly be determined from the pleadings and from the recitals of fact in the various judgments réndered. Whether the plaintiff in error, in the general exception taken to the overruling of his motion, is assigning error upon the finding of the court on the issues of fact presented therein, or is assigning error exclusively on the issues of law raised thereby, can only be surmised. The duty rested upon the plaintiff in error to indicate specifically to this court wherein he asserted the trial court erred in overruling his motion to set aside the judgment against him; and since that motion raises issues both of law and of fact, and the judgment recites that after hearing evidence the same is overruled, etc., by no possible process of reasoning or divination can we determine from the general exception presented to us whether the plaintiff in error is complaining as to the rulings on questions of law or as to the findings of fact. We can not say, from the exception taken, that the plaintiff in error intended to assign error only upon the rulings on the questions of law raised in the record, as in some cases in which a- somewhat general assignment of error has been hel,d sufficient where a question of law only was submitted to the cdurt, and the court decided adversely to the contention of the plaintiff in error and entered a judgment against him, and error was generally assigned upon this, as in the cases of Patterson v. Beck (already referred to) and Ocilla Southern R. Co. v. Morton, 17 Ga. App. 703 (87 S. E. 1088). Considering alone the exception taken, the general assignment of error in the bill of exceptions may be interpreted equally well as applying only to the findings of law, or only to the findings of fact, or perhaps to both the findings of law and of fact, and no suggestion is contained therein as to what particular errors of law or of fact or of uoih are complained of. The writ of error in this case must therefore be dismissed. While we are reluctant to give the case' this direction, the preservation of the recognized precedents touching the practice in this court and the Supreme Court is essential.

Writ of error dismissed.

Jenkins and Luke, JJ., concur.

ON MOTION TOR REHEARING.

Per Curiam.

The motion for a rehearing is based on the assumption that in dismissing the writ of error, on the ground that the assignment of error was too general as to the judgment complained of, the court- “overlooked a material fact.” The alleged fact is, that “there were two motions made in the court below, upon which two separate judgments were rendered, to the overruling of which exception was made,”—one a motion to open a judgment by default, addressed to the discretion of the judge and depending on evidence outside of the record; the other a motion “based on the record of the judgment” and presenting questions of-law only. It is contended that the assignment of error can be treated as applying to the latter independently of the former, and as to the latter is sufficient; and the plaintiff in error asks that it be allowed to amend the bill of exceptions so that the assignment of error shall apply to the judgment on the latter motion only.

It is not true that -the bill of exceptions excepts to judgments on two separate and distinct motions. Error is assigned on but one judgment. The bill'.of exceptions,, after stating the case in which the plaintiff in error was garnishee, says that the .garnishee filed its “motion to open a judgment in default, rendered against it for having failed to answer a summons of garnishment served upon it in the said case, and set aside said judgment against it as having been improperly rendered, and that, after bearing argument thereon, the court overruled said motion to open said default and refused to set aside judgment, on May 4, 1917.” And without mention of any other motion, judgment, or ruling, the bill of exceptions continues as follows': “Now within the time prescribed by law comes the garnishee, the Charleston & Western Carolina Eailway Company, and being dissatisfied with the ruling and desiring to except to the Court of Appeals, says that the court erred in not granting said motion to open said default and to set aside the said judgment; and plaintiff in error specifies as the record,” etc. The parts of the record specified, in addition to the attachment and garnishment proceedings and the judgments therein, are “the motion of garnishee’s to open said default judgment, together with the 'answer that the garnishee requested that it be allowed to file, also'the amendment t'o the motion to open default and to set aside the judgment' against garnishee, together with the orders of the court on said motions;” the words “orders of the court on said motions” referring, of course, to the original motion and the amendment to that motion. No other motion is mentioned. The transcript of the record contains the original motion (filed June 9, 1916), in which the garnishee “moves the court to set aside” the judgment against it, “as having been improperly rendered, and moves the court to open said judgment, and to allow it to answer said garnishment, if it should' be required to do so and if it has not done so,” for reasons stated, which include facts extrinsic of the record. Upon this motion is an entry of the judge, dated May 4, 1917, that after hearing arguments of counsel “and considering the evidence submitted, the within motion is 'hereby declined and overruled.” An entry of the judge on the same date and in similar terms, including the words “considering the evidence submitted,” appears also on a paper in the transcript of the record headed “Amended motion to open judgment by default against garnishee.” The body of the latter motion, however, makes no reference to any judgment against. the garnishee; it moves to set aside the judgment “against the defendant,” because there was “no appearance by the defendant,” etc. There is in the record an additional paper, filed on the day on which the motion or amendment just mentioned was filed '.(November• 39, 1916), and headed also: “Amended motion to open judgment by default against garnishee;” and it in fact proposes to amend the motion'to open that judgment. If, however, it be assumed that this is not the amendment described by the bill of exceptions in specifying the parts of the record to be sent up, but that the paper referred to is the one in .which it is moved that the judgment against the defendant be set aside, the plaintiff'in error itself treats the paper as an amendment, and therefore as relating back to and a part of the original motion. Moreover, a garnishee is not entitled to move- to set aside a judgment against the defendant alone (see Jones v. Maril, 19 Ga. App. 216 (3)); and if the motion in .which this garnishee seeks -to set aside the judgment against the defendant could be considered at all, it would be only as an amendment adding to the original motion an attack on the validity of that judgment as a reason for setting aside the judgment against the garnishee. And although judgment is entered separately on the two papers, the entries are contemporaneous and are to be treated as relating to a single motion, of which the amendment (if it can be considered at all) is a part, and are 'to be treated as a judgment depending on evidence, each entry containing the words “after . . considering the evidence submitted.” Clearly, as before stated, the assignment of error refers to but one judgment; and as it appears that that judgment depended on evidence, and was a judgment on matters of fact and not on matters of law only, it comes within the ruling announced in the second division of the decision of this court in this ease.

We will add, however, that even if the questions of law raised could be considered independently of any question of fact, we think an affirmance should result.

Motions to amend, and for rehearing, denied.


source: Caselaw Access Project

author: Wade, G. J.

license: Public Domain

text:
    8965.
    AMOS v. CONTINENTAL TRUST CO.
    1. The assumption and payment of the liabilities of the bank- furnished a sufficient consideration for the obligation, entered into by the directors, to hold the trust company harmless, and the contract was not unilateral.
    2. A surety may be sued separately from his principal (Civil Code, § 3559), and it is immaterial, under the facts of this ease, whether the defendant in the lower court be treated as a guarantor or as a surety. Small Co. V. Claoaton, 1 Ca. App. 83 (2) (57 S. E. 977).
    3. It was not necessary to obtain judgment against the principal before proceeding against the surety pr guarantor in this case. The contract was to pay the.guaranteed amount upon the failure of Lewis to make “prompt and punctual payment” of the amount set opposite his name in the contract, and his failure to do this was distinctly alleged in the petition.
    4. There is no merit in the contention, raised by the demurrer, that the indemnity contract or bond of the directors was binding upon the makers thereof only upon the further consideration that certain national banks would additionally guarantee and indemnify the company against loss to an extent named. The trust company, under the terms of the contract of guaranty, ■ agreed to assume and pay off the liabilities of the bank upon the conditioh that the makers of the bond furnished to it would indemnify, the company to the extent of $100,000, and also upon a further agreement that certain banks should afford additional indemnity. If the trust company undertook-to pay off the liabilities of the bank without exacting the performance of the additional condition, or if its performance was legally impossible, as contended, this could not afford a reason for relieving Lewis as one of the makers of the indemnity bond or for discharging his surety or guarantor. Erom the contract it is plainly evident that the additional guarantee did not become effective until after the guaranty of the directors was exhausted, and it is therefore immaterial whether this additional guaranty was ■ furnished the trust company or not.
    5. While a bank may not transfer its assets for the purpose of consolidating with another bank, without the consent of “two thirds of the stock of ekch bank” (Civil Code, § 2303), it is competent for the directors to ' arrange for the payment of its liabilities, if the bank itself he unable to discharge the liabilities in due course, and for this purpose they may borrow money or arrange for such payment by another bank. See Wyman v. Wallace, 201 U. S. 230 (26 Sup.-Ct. 495, 50 L. ed. 738).

      (a) At all events one of the directors making the contract wkereby the payment of the hank’s obligations was secured can not himself attack the contract because not authorized by two thirds of the stockholders, nor can his surety do so.
    6. The exception to the sustaining of the demurrer to the defendant’s answer can not be considered, under the decision in Turner v. Gamp, 110 Ga. 631 (36 S. E. 76), the second headnote of which is as follows: “While a defendant in an action may before its final termination bring, to this court for review a’ decision overruling a demurrer to the plaintiff’s petition because the ‘judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have beeno a final disposition of the cause,’ such defendant can not, in a bill of exceptions sued out in such a ease, properly except also to a decision striking his answer or a portion thereof.” See also Got» v. Hardee, 135 Ga. 85 (68 S. E. 932). The ruling of this court in the ease of Harrison v. Douglas, 16 Ga. App. 693, 697 (85 S. E. 970), in which it was said by Chief'Judge Russell that, “there being no question of this court’s jurisdiction to deal with the writ of error [error being likewise assigned therein upon the overruling of a demurrer to the plaintiff’s petition], we deem it proper at this time to dispose also of the question presented by the ruling of the lower court upon the demurrer to the answer,” is erroneous and will not be followed, in so far as it may be in conflict with the rulings of the Supreme Court cited above.

      7. It does not appear that the trial judge abused his* discretion in referring this case to an auditor, and there is no merit in the exception based thereon.
    8. The numerous special grounds of the demurrer and other grounds not specifically passed upon are without merit.
    Decided May 16, 1918.
    Action upon guaranty; from Bibb superior court—Judge Mathews. April' 18, 1917.

      W. D. McNeil, O. H. Garrett, for plaintiff in .error.

      Hardeman, Jones, Parle & Johnston, Harry S. Strozier, contra.
   Wade, G. J.

The Continental Trust Company brought suit against Mrs. Tero C. Amos for $20,000. She„ demurred to the petition generally and specially and filed an answer, various portions of which were demurred to by the plaintiff. • The court overruled the demurrer to the petition, and sustained the plaintiff’s demurrer, as to various paragraphs of the answer, and struck certain paragraphs, and ordered that other paragraphs be stricken unless amended to meet special grounds of the demurrer. Thereupon the case was referred to an auditor, upon proper application; the order - of the court reciting, that it appeared that the cause involved complicated and intricate questions of account, and that the facts and circumstances of the ease were such as to make a reference to an auditor proper and necessary. The defendant filed a bill of exceptions, assigning error on the overruling of her demurrer to the petition, and upon the sustaining of the plaintiff’s demurrer as to certain paragraphs of the answer, and upon the action of the court in referring the case to an auditor.

. The suit was based upon an alleged contract of guaranty, and the facts, as stated in the petition under which the contract was entered into and upon which it was claimed the liability of the defendant arose, were briefly as follows: The Commercial & Savings Bank was a banking corporation doing business in the city of Macon, and on August 1, 1914, made application to the Continental''Trust Company to pay off for it all of its indebtedness to its depositors and other creditors, proposing to transfer as security for such payment its entire assets of every kind and character. The trust company concluded, after examination, that the assets of the bank were insufficient to pay off its ascertained liabilities, and declined to assume the payment thereof on this' security. To induce the trust company to assume the payment of the hank’s indebtedness, certain of its directors proposed that if the trust company would assume and pay the liabilities of the bank, “they would guarantee and indemnify and hold harmless” the said trust company against any loss it' might sustain by reason of any deficiency in the amounts realized on the assets of the bank (which were to be transferred to the trust company, for the purpose of paying so far as possible the liabilities of the bank), the amount of this guaranty aggregating $100,000. A copy of the bond,executed by the directors is attached to the petition and follows hereafter, and it appears therefrom that these directors agréed to secure the respective amounts set' opposite their names in the bond. One of the directors who signed this bond was E. N. Lewis, who bound himself to the extent of $20,000 only; and, to insure the performance of the obligation assumed by him “and the punctual payment by him of the amount set opposite his name in said instrument,” Mrs. Amos, the plaintiff in error, executed the instrument which is the basis of this suit. This obligation on the part of Mrs. Amos was a separate agreement, written on the bond, and. bore the same date,' and was made and delivered before the trust company undertook to assume the payment of the indebtedness of the bank, and its assumption of such indebtedness .was partly in consideration of this ■ guaranty. The assets of the bank ■ were converted into cash' and applied to the payment ■ of the various amounts advanced by the trust company in paying all its indebtedness, but, after applying everything realized from this source, there remained a deficiency of more than $100,000, the total amount guaranteed by the several directors. The directors were called upon to make good the amounts which- they had severally guaranteed, and the director Lewis failed and refused to respond to this demand; whereupon suit was instituted to require Mrs. Amos, as a guarantor, to comply with her obligation. ■

The bond executed by the directors and the undertaking entered into by Mrs. Amos appear in the record as follows:

“Georgia, Bibb county.

Know all men by these presents, that whereas the Commercial & Savings Bank, of this city, is unable to meet in due course.its obligations to its depositors and other creditors, and whereas, by resolution of their respective boards of directors, the Commercial & Savings Bank and the Continental Trust Company have agreed that said Commercial & Savings Bank will transfer, assign, and deliver to said Continental Trust Company all of the assets of said bank, and that said company will assume the payment of the liabilities of said bank shown on a list of said liabilities furnished by said bank to said company, upon condition that the undersigned as directors of said bank will guarantee and indemnify against loss the said company on account of the assumption of said liabilities as herein set out, and upon the further condition that the four national banks in the city of Macon will additionally guarantee and indemnify said company against loss to the extent of seventy-three thousand ($73,000.00) dollars, and shall advance such moneys as may be necessary to meet withdrawals of deposits-which shall not be immediately redeposited in said company; now, therefore, the undersigned, each for himself, and not one for the other, as sureties, hereby agree and bind themselves unto each other and unto the Continental Trust Compány that they will guarantee and indemnify and hold harmless the said Continental Trust Company against any loss which it may sustain by reason of any deficiency in the amounts realized on the assets of said bank in the payment of the liabilities of said bank in the respective amounts set opposite the name of the undersigned, and no further, to wit:

E. Y. Mallary $25,000.00
E. N. Jelks 25,000.00
E. N. Lewis 20,000.00
J. J. Cobb 15,000.00
L. S. Dure 5,000.00
A. W. Lane 5,000.00
Cecil Morgan 5,000.00

the said respective amounts, or such portion thereof as may be necessary, to be paid, Continental Trust Company as demanded by it; and in the event of the payment by any one of the undersigned of said respective amounts or any part thereof, the said Continental Trust Company shall, upon a final liquidation of the affairs of the said bank, and after accounting to the national banks for the amounts advanced by them, account to the undersigned respectively for any surplus remaining out of said assets after the payment of the liabilities of said bank, in-proportion to the amounts so paid in by the undersigned.

■ The undersigned further agree that they will execute and deliver to the Continental Trust Company their several notes evidencing their respective obligations hereunder, and will secure the same in sucli manner as may be satisfactory to said company; and in the event such security is given, said Continental Trust Company shall not be liable or' responsible to either of the undersigned for a failure to record the instrument evidencing such security or to promptly enforce the same, but it is the purpose and intent of this agreement that a reasonable time shall be given to the undersigned to respond to such demands as may be made upon them, taking into consideration the exigencies of such situation .as may arise and the demands for payment which may be made upon said company by the creditors of said bank.

In witness whereof the parties hereto have hereunto set their hands and affixed their seals and delivered these presents this August 3, 1914.

(Signed) E. Y. Mallary (L. S.)
E. N. Jelks (L. S.)
E. N. Lewis (L. S.)
J. J. Cobb (L. S.)
A. W. Lane (L. S.)
Cecil Morgan (L. S.)
Leon S. Dure (L. S.)

Georgia, Bibb county. The undersigned, Mrs. Tero C. Amos, contemporaneously with the execution and delivery of this instrument and as a part thereof guarantees the prompt and punctual performance of the obligation of said E. N. Lewis and the prompt and punctual payment by him of-the amount set opposite his name in said instrument; and I further agree that in the event said E. N. Lewis shall execute and deliver, as hereinabove provided, his note evidencing the amount of his obligation, to indorse the same as security.

Witness my hand and seal and the delivery of these presents this August 3rd, 1914. [Signed] Mrs. Tero C. Amos (L. S.)

The points raised by the various grounds of the demurrer to the petition, which were overruled, are sufficiently indicated in the headnotes above, so far as it .is deemed necessary to. pass speeifieally thereon. So also the remaining questions raised in the record, are disposed, of.

As indicated above, the ruling - of the court below on the demurrers to the answer can not be considered; and the judgment overruling the demurrer to the petition is affirmed, as is also the judgment appointing an auditor to hear and determine the issues of law and fact in this proceeding.

Judgment affirmed.

Jenkins and Luke, JJ., concur. ,


author: Wade, C. J.

text:
    8976.
    BYRD v. BYRD.
    1. The action being for money had and received,-which the plaintiff testified was given to the defendant for the specific purpose of aiding in the purchase of a home to be occupied jointly by them, and there being testimony by the defendant to the effect that the plaintiff gave the money to her under an agreement that she would take care of and provide for the plaintiff during the remainder of- the plaintiff’s life, the verdict in favor of the' defendant was authorized.
    2. Failure to give to the jury an instruction liot requested, as to the shifting of the burden of proof, was not ground for a new trial.
    3. Evidence taken by depositions was not excluded from the consideration of the jury by the charge of the court that in determining as to the credibility of witnesses the jury “may look to them as they appear on the stand, take their manner,” etc.
    4. The instructions- complained of as making a recovery depend on a demand for a return of the money in question were not prejudicial to the plaintiff. There was no issue as to a demand, it being admitted by the defendant that such a demand was made.
    5. There is no substantial merit in the- ground of the motion for a new trial in which it is alleged that the court erred in charging the jury that if the money in question was delivered to the defendant with the intention on the part of the plaintiff that the title to it should pass to the defendant, either as a gift or as consideration for a contract that the defendant should take care of her during the remainder of her life, the plaintiff could not recover in this action, but her remedy -would be a suit for damages for breach of contract.
    Decided May 16, 1918.
    Action for money had and received; from Gordon superior court —Judge Tarver. May 5, 1917. <

      F. A. Cantrell, T. ~W. Shelly, J. G. B. Frwin Jr., M. B. Futíanles, for plaintiff, cited,
    as to form of action: 27 Cyc. 862; Citizens Bank v. Rudisill, 4 Ga. App. 37-40; Burke v. Nutter, (W. Va.) 91 S. E. 812. Revocation of gift: Rountree v. Smith, 152 Ill. 493; Berry v. Berry, 31 Iowa, 415; Vounche v. Marksville, 124 La. 712; Baker v. Baker, 125 La. 969; Williamson v. Johnson, 62 Vt. 378; Pemberton v. Pemberton, 22 Mo. 338; Hosner v. Tiffany, 100 N. Y. S. 797; Eskridge v. Farrar, 30 La. 718.

      Starr & Paschall, A. L. Henson, for defendant, cited:
    27 Cyc. 849-50; Bates-Farley Savings Bank v. Dismukes, 107 Ga. 212.
   Wade, C. J.

The plaintiff in error brought an action for money had and received- against her daughter-in-law, to recover $1,531, which she testified she had given to the defendant for the specific purpose of aiding in the purchase of a home to be occupied jointly by them. The defendant answered and testified that the money was given to her under an- agreement that .she would take care of and provide for the donor during the remainder of her life. The evidence was in conflict as to the .consideration or condition of the gift, and the jury were authorized to find in favor of the contention of the defendant.

It is well settled that where a conveyance of land is charged with the support and maintenance of the grantor, the conveyance will not be.defeated by a mere failure of the grantee to carry out his obligations (McCardle v. Kennedy, 92 Ga. 198 (17 S. E. 1001, 44 Am. St. R. 85); Lindsey v. Lindsey, 62 Ga. 546; Davis v. Davis, 135 Ga. 116 (69 S. E. 172), though ordinarily an action will lie for the value of the support, or where the special facts authorize it, an action in equity for rescission might lie. The mere fact that the grantee is a non-resident of the State constitutes no ground for cancellation in equity. Davis v. Davis, supra. This much is said by the way, since the action was not based upon the withholding of the care of and the provision for the plaintiff which the defendant asserted was the consideration upon which the money was given to her.

There is no merit in the ground of the motion for a new trial which complains of the failure of th'e court to instruct the jury that “when the plaintiff established her ownership of the money in question, delivery to defendant, and a demand for its return, 'the burden of proof would be shifted from plaintiff and would rest upon defendant to establish her counter-allegation that the money was delivered to her as a gift by the plaintiff,” notwithstanding the general instruction of the court that “the burden is upon plaintiff +o establish her contention by a preponderance of the evidence.” “Where the presiding judge, in an ordinary-action at law, correctly charges the jury in.regard to the general burden of proof, he is not required, as an essential part of the charge, to discuss the shifting of the burden of introducing evidence on special points which may arise during the progress of the case; and it will not be held error that he omits to do so.” Hawkins v. Davie, 136 Ga. 550, 552 (71 S. E. 873). See also Martin v. Nichols, 127 Ga. 705, 709 (56 S. E. 995); Brandon v. Pritchett, 133 Ga. 480 (66 S. E. 247); Central of Georgia Ry. Co. v. Manchester Mfg. Co., 6 Ga. App. 254 (64 S. E. 1128); Temples v. Central Railway Co., 19 Ga. App. 307, 310. In the absence of any request touching the shifting of the burden of proof, the omission complained of was not reversible error.

There was evidence from witnesses’ who testified in person and also from witnesses testifying by depositions, and one ground of the motion for a new trial complains of a certain excerpt from the charge of the-court because the court did not call the attention of the jury to the testimony given by depositions, and gave no special rule for weighing the same, and that this had “the practical effect of excluding from the consideration of the jury the testimony delivered by depositions, inasmuch as the witnesses did not appear before the jury so as they could observe- their manner on. the stand.” The excerpt referred to is as follows: “In determining the credibility of the witnesses, you may look to them as they appear on the stand, take their manner, their relation to the parties and to the case, their interest or want of interest in the case, and feeling, prejudice, or bias, if anything of the sort appears from the evidence.” .It is true that where evidence includes interrogatories and. various documents as well as oral testimony, it is error for the court to instruct the jury that “the evidence is what the witnesses swear before you on the stand.” Bowden v. Achor, 95 Ga. 243.(11), 245 (22 S. E. 254). Documentary evidence properly introduced should not be thus excluded (McLean v. Clark, 47 Ga. 26; Myers v. State, 97 Ga. 79, 25 S. E. 252; Western & Atlantic R. Co. v. Tate, 129 Ga. 526 (3), 529, 59 S. E. 266); but in this- case the court expressly instructed the jury that “all [italics ours] evidence which has been allowed to go .before you in this case has been admitted solely in so far as it may throw light” upon the issues of fact involved; and nowhere was it suggested that the jury should consider alone the testimony of the witnesses appearing in. person,' or that such testimony alone constituted the evidence in the case. Clearly the evidence taken by depositions was not excluded by the instruction of the court as to the proper manner of weighing the testimony of the witnesses appearing upon, the stand. See, in this connection, Jones v. McElroy, 134 Ga. 857 (68 S. E. 739, 137 Am. St. R. 276); Martin v. Hale, 136 Ga. 338 (71 S. E. 133). The failure to direct the jury how they should weigh the testimony of the witnesses whose evidence was given by depositions can not be cause for reversal where no appropriate request is made for any specific instruction on this line. Killian v. State, 19 Ga. App. 750 (3) (93 S. E. 337).

There is no merit in the ground of the motion for a new trial 'complaining that the court erred in making a recovery depend upon an antecedent demand for the money sued for. A demand was admitted by the defendant;, and even if the instruction were for any reason erroneous, it could not possibly have prejudiced the plaintiff’s case. ...

There is no substantial merit in the- only remaining special ground of the motion for a new trial. See, in this connection, subdivision (a) of the first division of this decision.

There being evidence to sustain the verdict in behalf of the defendant, and the trial judge having declined to set the verdict aside, under the discretionary power vested in him, which is not .possessed by this court, and there being no error of law that requires a new trial, the judgment of the trial court must be

Affirmed.

Jenkins and Luke, JJ., concur.


author: WADE, C. J.

text:
    9108.
    Hendricks, executor, v. Rogers, treasurer.
   WADE, C. J.

1. Without considering the various questions suggested by the record, it appears that the motion to set’ aside a judgment of the court of ordinary in favor of Hendricks, as administrator of a certain estate, was brought against Hendricks individually, a rule nisi was so issued, and judgment was rendered in his behalf individually. Thereupon the creditor seeking to set aside the judgment of discharge filed his petition for certiorari against Hendricks individually, and in the superior court a judgment was rendered in behalf of the plaintiff in certiorari and against Hendricks as an individual. So much appears from the-record. The writ of error to this court is brought by “B. 3A-Hendricks, executor upon the estate of Mary Addie Hendricks,” and not by B. L. Hendricks individually, and, it not appearing that B. L. Hendricks as executor, etc., was a party to the proceeding which it was sought to review, and- there being therefore no proper party in the proceeding before this court, the bill of exceptions must be dismissed. See Booth v. Saunders, 128 Ga. 33 (57 S. E. 93); Branch v. Mallory, 8 Ga. App. 797 (70 S. E. 177); Central R. Co. v. Craig, 59 Ga. 185 (2).

Decided May 16, 1918.

Certiorari; from Bibb superior court—Judge Matbews. July 5, 1917.

Charles II. Hall, for jdaintiff in error.

Hardeman, Jones, Parle & Johnston, Harry 8. Strozier, contra.

(а) There is nothing in the record to show that B. L. Hendricks as an individual is dissatisfied with the rulings of the lower court which are complained of by B. L. Hendricks as executor, etc., nor can the bill of exceptions be so amended as to make Hendricks individually the plaintiff in error. Branch v. Mallory, supra.

(б) Ordinarily the party in whose favor the judgment complained of was rendered must be a party defendant to a motion to set aside the same, and while it is true that one acting in his individual capacity is entirely distinct from the same person acting as executor or administrator, it is unnecessary to consider in this case .whether the motion to set aside the judgment discharging an executor was properly brought against him as an individual.

Writ of error dismissed.

Jenkins and Luke, JJ., concur.


author: Jenkins, J.

text:
      9124.

      Simmons v. International Harvester Company of America.
   Jenkins, J.

1. The motion to dismiss the bill of exceptions upon the ground of its alleged omission to assign error upon the final judgment is without merit. Lyndon v. Georgia Ry. & El. Co., 129 Ga. 353 (58 S. E. 1047); Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (94 S. E. 892).

2. While parol testimony is generally not admissible to contradict or vary the terms of a valid written instrument (Civil Code of 1910, § 5788), still, as between the original parties, the consideration of a contract is ordinarily open to inquiry. And even though a consideration be expressed in the instrument itself, if it be by way of recital only, and not .in such way as to constitute it a part of the terms and conditions of the contract, it is -still permissible to show by .parol that the true consideration of the agreement was in fact different from the one thus stated merely by way of recital. Anderson v. Brown, 72 Ga. 713; Burke v. Napier, 106 Ga. 327 (32 S. E. 132); Camp v. Matthews, 143 Ga. 393 (85 S. E. 196). But the terms and/ conditions of a contract can not be altered under the guise o^ inquiring into its consideration; and where proof of a different consideration from the one expressed would have the effect of altering the terms .and conditions imposed by the instrument, it is not permissible to set up by parol another and different consideration for the purpose of showing a failure of the latter. Atkinson v. Lanier, 69 Ga. 460 (2); Wellmaker v. Wheatley, 123 Ga. 201 (51 S. E. 436); Goette v. Sutton, 128 Ga. 179, 180 (3) (57 S. E. 308); Coldwell Co. v. Cowart, 138 Ga. 233, 236 (75 S. E. 425); Thrower v. Baker, 144 Ga. 372, 374 (87 S. E. 301); 6 Am. & Eng. Enc. Law, 775 (b).

3. In the notes sued on, assuming that the consideration is so expressed as to constitute it the necessary basis of other stipulations therein contained, and thus creating and attesting rights affecting the terms and conditions of the obligation, it would not be subject to contradiction by extrinsic evidence setting up a new and distinct consideration for the purpose of showing the failure of the latter. But while this is true, it is altogether a different thing to show that the note sued on was in fact without legal consideration of any kind, and that the actual 'basis of the undertaking was wholly illegal and the resultant promise absolutely void. Hawkins v. Collier, 101 Ga. 145 (1), 147 (28 S. E. 632).

4. Under our law a married woman can not assume the debt of her'husband (Civil Code of 1910, § 3007), and no superficial appearance will be permitted to lead the court away from the true inwardness of the transaction. Bank of Eufaula v. Johnson, 146 Ga. 791 (92 S. E. 631). Thus, if the wife did not in fact purchase and was.not to receive the machinery under the contract sued on, but the whole transaction was merely a colorable scheme or device by which the wife was induced by the plaintiff to assume the previous debt of the husband, without any consideration flowing to her, she would have the right to repudiate the entire illegal and void transaction, no matter by what device its true inwardness and purpose had been concealed. Civil Code (1910), § 5790; Purcell v. Armour Packing Co., 4 Ga. App. 253, 256 (61 S. E. 138). The plea in this case alleges that the machinery described in the notes sued on had been previously sold to the husband. The plea states that these notes, signed by the wife, were given “in settlement” of the notes and debt thus owing to plaintiff by the husband for his purchase of said property; it denies that they'were given for the purchase of said property by her, and alleges that.they were given.-without any consideration other than the illegal assumption of her husband’s- debt. Under the rules stated, it was error to strike the plea on demurrer.

5. Had the intendment and effect of the plea been merely to set up that the wife had taken over the purchase of certain personal property . previously contracted for by the husband, without showing that she was induced to do so by the fraud of the seller, or of the husband, of which the seller had notice, the rule would be different. Where a wife enters into an unambiguous written contract whereby she is to become the . owner of certain personal property, and agrees to pay a stipulated price therefor, she is bound by her obligation as purchaser, if the seller committed no fraud upon lier nor knew of any committed by the husband, notwithstanding that by reason of the purchase an indebtedness of the husband, based upon a prior sale of the same property to him, was to be canceled. Whore the purpose and effect of the contract is that the wife shall pay only for what she bought, the debt is as much her own as if there had been no previous sale of the property to her husband. Bateman v. Cherokee Fertilizer Co., 21 Ga. App. 158 (93 S. E. 1021); Hull v. Sullivan, 63 Ga. 127; Strickland v. Gray, 98 Ga. 667 (27 S. E. 155).

Decided May 16, 1918.

Complaint; from city court of Statesboro—Hinton Booth, judge pro hac vice. ■ July 10, 1917.

Deal & Benfroe, for plaintiff in error.

Francis B. Hunter, J.J. F. Anderson, contra.

Judgment reversed.

Wade, G. J., and Luke, J., concur.


text:
    9130.
    Cook et al. v. Robinson.
    Decided May 16, 1918.
    Rehearing denied July 10, 1918.
    Complaint; from city court of Oglethorpe—Judge Greer.. June 26, 1917.

      John B. Guerry, for plaintiffs in error. Jule Felton, contra.
   Wade, C. J.

1. Irrespective of whether the question presented in the former bill of exceptions in this case (Cook v. Robinson, 19 Ga. App. 207, 91 S. E. 427), in which error w;as assigned also on the overruling of the defendant’s demurrer to the petition, is res judicata because of the failure of this court to expressly rule thereon, the trial court did not .err in overruling the 'demurrers to the plaintiff’s petition as amended.

2. There is no substantial merit in any of the special assignments of error in ^ the motion for a new trial.

3. The evidence sufficiently supported the verdict returned, and the trial judge did not err in refusing to grant a new trial.

Judgment affirmed.

Jenkins and Luke, J.J., concur.


author: Luke, J.

text:
    9132.
    Lewis v. Crocker.
   Luke, J.

This action was upon a written contract by which the plaintiff contracted to build a house for the defendant at a certain price. There was a. provision in the contract that, “should the owner at any time during the progress of said building desire any alterations of, .deviations from, additions to,-or omissions in the contract, he shall have the right and power to make such change or changes, and the same shall in no way injuriously affect or make void the contract, but the difference shall be added to, or deducted from, the amount of the contract as the case may be, by a fair and reasonable valuation, and no extras shall be paid for unless ordered by the owner.' Such changes shall be - authorized in writing and a written agreement shall be executed to that effect where such changes entail an extra expense.” The evidence established the fact that the contract price, to wit, $3,050, had been fully paid by Crocker, but that the, sum sued for, to wit, $4,520.62, instead of being the contract price, as alleged ,in the petition, was for extras. The evidence failed to show that the extras were ordered or directed as provided by the contract. At the conclusion of the plaintiff’s evidence a nonsuit was granted. Held: Whatever may be the remedy of the plaintiff in a suit upon an open account, the case as pleaded by him was not proved. Nonsuit was therefore proper.

Decided May 16, 1918.

Rehearing denied July 10, 1918.

Complaint; from city court of Leesburg—Judge Martin. July 17, 1917. ' ’ •

Leonard Parkas, Thomas E. Milner, for plaintiff.

Peacock, & Gardner, for defendant.

Judgment affirmed.

Wade, 0. J., and Jenhi/ns, J., concur.


text:
    9213.
    Southern States Fire and Casualty Insurance Company v. Napier.
   Jenkins, J.

1. Where a policy fire insurance, issued in favor of the owner of property, contains what is known as the “ordinary” or “open” mortgage clause, merely pi'oviding that loss, if any, shall be paid to a named mortgagee as his interest may appear, this stipulation is merely collateral to the principal undertaking in favor of the mortgagor, and the mortgagee becomes simply an -appointee of the fund, with no greater rights than those of the assured under whom he must claim, and any breach of the terms of the contract of insurance which would cause a lapse as against the one assured will operate to avoid the- policy as against the mortgagee. May on Insurance, § 379; 13 Am. & Eng. Enc. Law, 202, 250; 2 Cooley’s Briefs on Insurance, 1520, 1521; Brecht v. Law Union &c. Ins. Co., 160 Fed. 399 (18 L. R. A. (N. S.) 197, and note, 18 L. R. A. 197); Gilman v. Commonwealth Insurance Co., 112 Me. 528 (L. R. A. 1915 C, 758, 92 Atl. 721). Hence, where a policy Of insurance written in the name of the mortgagor thus merely recognizes the mortgagee as the appointee of the fund, a conveyance by the former to the latter of the title to the property is in violation of any stipulations which may be expressed in the policy prohibiting change of ownership in the property insured. Hartford Fire Insurance Co. v. Liddell Co., 130 Ga. 8, 13 (60 S. E. 104, 14 L. R. A. (N. S.) 168, 124 Am. St. R. 157); Boston Co-operative Bank v. American Central Insurance Co., 201 Mass. 350 (23 L. R. A. (N. S.) 1147, and note, 87 S. E. 594).

Decided May 16, 1918.

Certiorari; from Bibb superior court—Judge Mathews. August 22, 1917.

Wil], Gunn, E. C. Powers, for plaintiff in error.

Ryals & Anderson, B. 8. Deaver, contra.

2. But where to the policy of insurance there is attached in favor of the mortgagee what is known as the “New York standard mortgagee clause,” by the terms of which it is provided that the interest of the mortgagee shall not be invalidated by reason of any act or neglect on the part of the mortgagor, this agreement operates as a separate and distinct contract of insurance upon the mortgagee’s interest, and gives to the mortgagee such an independent status as might authorize a recovery by him on the policy even though the circumstances were such as .would prevent a recovery by the mortgagor. 13 Am. & Eng. Enc. Law, 205; 2 Cooley’s Briefs on Insurance, 1228, 1525.

3. Where such a form of agreement in favor of the mortgagee provides also that the mortgagee shall notify the company of any change of ownership in the property which shall come to his knowledge, and that if this is not done the policy shall become void, the absolute conveyance of the property by the owner to one whose interest is not covered by the terms of the insurance, where the mortgagee has knowledge of the conveyance but fails to notify the company, renders the policy void even as to him. Continental Insurance Co. v. Anderson, 107 Ga. 541 (2), 544 (33 S. E. 887).

4. But in order that the-policy shall be terminated by reason of a change in ownership of the property, the conveyance by the owner must be to a person who by the terms, of the policy is npt himself insured; and since, under the last-mentioned form of stipulation, the interest of the mortgagee is expressly covered by separate and distinct agreement, the mere acceleration of his interest by a direct conveyance of the title to him would not work a forfeiture of his rights as one of the assured, even though notice be not given to the company of such’ increase in interest in the property' already insured in his favor by the terms of the policy. 2 Cooley’s Briefs on Insurance, 1722, 1758. See also, in this connection, Hartford Fire Insurance Co. v. Liddell Co., supra, and 1 Cooley’s Briefs on Insurance, 213.

5. Under the rules of law above stated, the amendment to the defendant’s answer set forth no ground, of defense to the action brought under the policy, and the judgment of the superior court, sustaining the certiorari, is i Affirmed.

Wade, C. J., and Luhe, J., concur.


author: Jenkins, J. Jenkins, J.

text:
    9221.
    CITY OF GRIFFIN v. STEWART.
   Jenkins, J.

1. “An exception based upon the refusal of the court to award a nonsuit will not be considered, where, subsequently thereto, the-ease is submitted to the jury, and, a verdict being rendered against the defendant, a motion for a new trial is made which presents the complaint that the verdict is contrary to the evidence, and without evidence to support it.” Dudley v. Isler, 21 Ga. App. 615 (94 S. E. 827), and citations.

Decided May 16, 1918.

Rehearinq denied June 12, 1918.

Action for damages; from city court of Griffin—Judge Goodrich. September 25, 1917.

G. G. Mills, for plaintiff in error.

J. A. Darsey, J. B. Williams, contra.

2. Whether the defendant was negligent, whether such negligence constituted the proximate cause of the injury, and whether the plaintiff could by the exercise of ordinary care have avoided the consequences of defendant’s negligence, were questions which under the evidence the ’jury had the' right to determine. The verdict being supported by evidence, and the trial judge being satisfied therewith, this court is without authority to set it aside. Mayor v. Brown, 87 Ga. 596 (13 S. E. 638); City of Atlanta v. Milam, 95 Ga. 135 (22 S. E. 43); Brunswick &c. Railroad Co. v. Gibson, 97 Ga. 489, 498 (25 S. E. 484); City Council of Augusta v. Tharpe, 113 Ga. 152 (38 S. E. 389).

Judgment affirmed.

Wade, C. J., and Luke, J., concur.

ON MOTION TOR REHEARING.

Jenkins, J.

1. Counsel for the plaintiff in error presents a motion for rehearing based in part upon the ground that the brief of evidence showed that the defendant in error, in compliance with section 910 óf the Civil Code (1910), had filed a claim with the governing authorities of the City of Griffin, asking for $232 damages, claiming this to be the extent of his injuries, while the verdict rendered was for $500, and that for this reason the vejdict was contrary to law and the principles of justice arid equity, since the governing authorities of the City of Griffin had notice only that the extent of damages to be claimed would .be $232, and there is no evidence to show that a claim for a larger amount was ever presented, and that this court failed to pass upon this question in the decision rendered. While, in the statement of facts as embodied in counsel’s brief, reference was made to the claim as filed with the city and the amount of the subsequent recovery, the motion for a new trial was based upon the general grounds only, and we did not understand that the question now asked to be passed upon had been thus raised and had been insisted upon in the brief. However, this question was passed upon by this court and in this particular suit when it was first brought here upon exceptions taken to the overruling of the defendant’s demurrer, and it is therefore res adjudicata. See City of Griffin v. Stewart, 19 Ga. App. 817 (92 S. E. 400). It was then held that “The notice given to the municipal authorities in this case sets out the time, the place, the nature of the alleged injury, and the extent of the injury; and we hold that this was at least a substantial (if not exact) compliance with the law, notwithstanding this notice claims money damages in' the sum of $232, while the petition seeks, to recover the sum of $500 as the ‘extent* of the injuries therein complained of.*’ The court there, apd also in the case of Williamson v. Savannah, 19 Ga. App. 784 (92 S. E. 291), explains and differentiates the ruling made in Mayor &c. of Macon v. Stringfield, 16 Ga. App. 480 (85 S. E. 684). In the Williamson case it was held: “Where the notice served upon the governing authority of a municipality makes a claim for an amount less than that for which suit is thereafter instituted, the purpose of the law has evidently not been defeated, since the city has beqn thereby afforded an opportunity to-adjust the claim for an amount less than, that demanded in the suit, and it could not be rationally inferred, where the city declined to pay the smaller amount claimed in the prerequisite notice, that it would nevertheless have paid the larger amount thereafter claimed in the suit, and that therefore, by suing for an amount greater than that set forth in the notice, the city was denied an., opportunity to .adjust the claim without incurring the expen'se of suit.

2. The case of Crawford v. Griffin, 113 Ga. 562 (38 S. E. 988), ivas not overlooked. There it was simply held .that a city was not liable for damages alleged to have been caused by a defective private bridge, not shown to have been built by the city, but constructed solely for the convenience of a particular individual, and which did not. appear to have been of any public utility, or to have been generally used by the public. In the present case there was evidence going to show that the alleged defect in the sidewalk was at a point generally and frequently used as a path for the purpose of crossing the street. In the case of City Council of Augusta v. Tharpe, supra, it was held, that “It is the duty of the authorities of a city to keep and maintain the sidewalks thereof in a reasonably safe condition for public use, and this duty is not performed by-keeping in such condition that part of the sidewalk only which is most generally used;” and that “it was not error to refuse to charge the jury that one passing from the street to the "sidewalk or the reverse (in a city), at any point other than a crosswalk, has no reason to expect a safe passageway, and must therefore do so at his own risk.”

From what is said above, and the rulings there quoted, we think the motion for rehearing is without merit, and it is therefore denied.


text:
    9232.
    Dumas v. Stafford & Son.
    Decided May 16, 1918.
    Complaint; from city court of Zebulon—Judge-Dupree. August 19, 1917. ■

      H. W. Nalley, for plaintiff in error. Redding & Lester, contra.
   Jenkins, J.

1. In a suit upon an account against a married woman, the question whether the credit was given to the wife or to the husband is a question of fact for the jury. Mitchell v. Treanor, 11 Ga. 324 (56 Am. D. 421). There was some evidence to authorize the verdict, which has the approval of the trial judge, and it can not be set aside as being without evidence to support it.

2. The first ground of the amendment to the motion for a new trial, not having been argued in the brief of counsel for plaintiff in error, will be treated as abandoned.

3. “A ground of a motion for a new trial containing an extract from the charge of the court and alleging that the court erred in so charging, but which fails to point out wherein the excerpt quoted is erroneous, or why it should not have been given, or why different instructions should have been given, presents nothing for the consideration of a reviewing court.” Callaway v. Pearson, 21 Ga. App. 565 (94 S. E. 817).

4. A request to charge must be in writing, to make a failure to comply therewith reversible error. Broadhurst v. Hill, 140 Ga. 211 (78 S. E. 838); Browder-Manget Co. v. West End Bank, 143 Ga. 736 (85 S. E. 881); Lenox Drug Co. v. New England Jewelry Co., 16 Ga. App. 476 (85 S. E. 681). Thus, an assignment of error based upon a refusal of the court to give certain charges as requested is not well taken, where it fails to show that the requests were in writing, or when they were preferred. Little v. West, 145 Ga. 563 (89 S. E. 682).

Judgment affirmed.

Wade, O. J., and Luke, J., concur.


text:
      9411.

      Bond et al, executors, v. Bond.

    Decided May 16, 1918.
    Trover; from Dawson superior court—Judge J. B. Jones. October 37, 1917.
    The executors of J. W. Bond brought trover against his widow for a promissory note signed by J. W. Bond and A. E. Bond, due one day after date, and payable to the order of J. W. Bond “or bearer.” The defendant set up that the note had been given to her by her husband and was her property; From the evidence at the trial it appeared that the testator put the note in the defend-, ant’s trunk while they were living together as husband and wife, and that it remained there and they continued to live together during the rest of his life, a period of about three years. The defendant testified, that she was not present when the note was put in the trunk; that she first saw it in the tray of the trunk, a day or two after it was drawn; that the way she came to find -it there was that he told her it was there. He and his son, A. E. Bond, were in partnership, conducting farms, gins, and mills; and she testified: “The partnership'notes were kept in our bedroom, in the book drawers, and I had the keys; . . he had no individual notes.” “There were two more small notes, or three, there,” in the trunk, “two small notes belonging to me.” “My husband never kept any note in my trunk. . . My trunk was in a different room from where the notes were kept in the drawer. . . I kept my clothes in there [in the trunk]; the notes were in the bottom, in a little hand-bag.” A. E. Bond testified, that he was one of the executors who brought this suit, and that the testator was his father and the defendant was his stepmother; that he and his father composed the firm of J. W. and A. E. Bond, and the note in question was for $150 which his father had obtained from the estate of a sister and had placed to the credit, of J. W. and A. E. Bond, and they had-both used the money; that his father put the note in the wife’s trunk because he (the father) did not want it referred to until they died or dissolved partnership,, and wanted to use the money until then and to keep it separate from the other business; that he saw his father raise the lid of the trunk and put the note into- the trunk; that the trunk was in a room used in doing their writing in their business, but the partnership notes were kept in another room; that the next time he looked at this note was about two weeks before his father died, when the wife was away from home; that he then found it in the same trunk where his father had put it, and found another note with it; that his father told him to look in the trunk and get the note; he reported to his father when he found them, and his father said “at the proper time to look after them both; . he did not say to get them;” this note was in her trunk at the time of his death; the words “o'r bearer,” in the note, were in his father’s handwriting. The witness further testified that when he demanded the note after his father’s death the defendant said she had given it to the ordinary; that she said that when she'found it in the trunk she did not know why it was put there, and she was told by his fatheruto turn it over to the ordinary. The defendant testified that at the time of the demand referred to by A. B. Bond, he said to her that he did not know of the existence of the note in question until told of it by his father, two weeks before the father’s death.
   Luke, J.

1. A person in possession of a promissory note payable to bearer is presumed to be the owner thereof, until the contrary appears. The burden of rebutting this presumption is upon the party claiming adversely to the party in possession of the note, and the issue as to who is the real owner is a question of fact to be passed upon by' a jury. Gate City Fire Ins. Co. v. Thornton, 5 Ga. App. 585 (63 S. E. 638); Culpepper v. Culpepper, 18 Ga. App. 182 (89 S. E. 161).

2. To constitute a 'valid gift, there must be the intention of the owner to give, acceptance by the donee, and delivery of the article given, or some act1 accepted by the law in lieu thereof.,. Any act that indicates renunciation of dominion by the donor, and the transfer of dominion to the donee, is constructive delivery, and may suffice to create a valid gift. Civil Code (1910), §§ 4144, 4147.

3. There, being evidence to authorize the verdict in favor of the defendant, and the verdict being approved by the trial judgé, and there being no assignment of error of law that requires a reversal of the judgment overruling the motion for a new trial, the judgment is

Affirmed.

Wade, C. J., and Jenhins, J., coneu/r.

In the motion for a new trial it is alleged that the court erred in charging the jury as follows: “I charge you that if he [the testator] delivered it [the note] or undertook to deliver it by putting it in her [the defendant’s] own private trunk, separate and distinct from his papers, if nothing more ■ appeared from the evidence as indicating his intention, and if that was the situation, the burden would be on the executors to show by a preponderance of the evidence, that the title to the note did -not pass.” • It is aíleged that this was error because it was in effect an instruction that the mere placing by the husband of a negotiable instrument in his wife’s trunk when they were living together as man and wife would place on the husband or his legal representatives the burden of showing that he did not thereby intend to give it to her; and because it was in effect a charge that the pláeing of the instrument in the wife’s trunk in her absence and without her knowledge would prima facie pass title to it; and no such rule is applicable between near relatives. Another ground of the'motion is that the court erred in not charging the jury, without any request so to do, that the mere delivery of personal property by the husband into the possession of the wife living with him would not be sufficient to create the presumption of a gift.

A. W. Vandiviere, O. J'. Lilly, for plaintiffs, cited:

Park’s Code, §§ 4150, 5729; Broom v. Davis, 87 Gc. 584; Smith v. Berman, 8 Ga. App. 262; 20 Cyc. 1197.

O. L. Harris, George F. Gober, for defendant, cited:

Civil Code (1910), § 3740; Blalock v. Miland, 87 Ga. 574 (5); Ogden v. Dodge County, 97 Ga. 461 (2).


text:
    9451.
    ANDERSON et al. v. C-R-C LAW LIST COMPANY.
    ^The court did not err in sustaining the demurrer and dismissing the petition in this case, in which it was sought to recover damages for cancellation and breach of a contract to advertise and recommend the plaintiffs, a firm of attorneys at law, as representatives of the defendant in its “law list” and directory, and which was dismissed on the ground that the cancellation was authorized by provisions of the contract. The, petition was subject to dismissal on other grounds of -the demurrer. The damages claimed were too remote, uncertain, and speculative.
    Decided May 16, 1918.
    ■ Attachment; from Pulton superior court—Judge Pendleton. November 5, 1917.
    The petition as amended of C. N. Anderson et al., doing business under the firm name of Anderson, Slate & D’Orr, alleges, that the defendant, The C-E-C Law 'List Company, a corporation of the State of New York,- has damaged them in the sum of $10,000 for breach of contract; that the defendant is engaged in the business of publishing and issuing from time to time what is known as The C-E-C Law List, and also a law; directory, which have á large circulation among lawyers, merchants, and business concerns throughout the United States and elsewhere, and which .contain the names and addresses of lawyers selected by the defendant in various cities and towns and named as its representatives in such cities and towns, and recommended as capable, efficient and responsible, and their integrity guaranteed; that representation in said list is very valuable, and representation therein for the city of Atlanta, Georgia (in which the plaintiffs resided, and in which, as well as throughout the State of Georgia and elsewhere, they were doing business and practising law, especially devoting themselves to commercial practice, the collection of debts, bankruptcy practice and the like), was worth to the plaintiffs $10,000 a year, because there are a large number of lawyers, forwarding agencies, and business concerns all over the United States, Canada, Mexico, and some European countries who are under agreement with said C-E-C Law List to use the attorneys representing it at Atlanta in sending business to attorneys in Atlanta, and who do use the attorneys in said list in Atlanta^ and used the plaintiffs herein particularly to a very large extent up to the time that the contract was breached by the defendant and the, names of the plaintiff? were left out of said list; that on June 30, 1915, the defendant and the plaintiffs entered into a written contract, set-out in the petition, whereby the defendant agreed to enter the name of the plaintiffs’ firm as one of three representatives in the said list in and for Atlanta, Ga., and to refer to the plaintiffs all near-by towns where the list was not represented by a resident attorney, this representation and the rights of the plaintiffs under the contract to continue for two years from June 30, 1915; that up to the time this suit was brought (June 24, 1916) the plaintiffs had paid all money that they had agreed to pay under the contract and had done all things that the contract required them to do; that as a condition precedent to the execution of the contract, and by way of side agreement, the defendant required them to execute to it a bond for $2,500, with a fidelity company as surety, conditioned.to hold the defendant harmless on account of its endorsement or guaranty of the plaintiffs’ efficiency and reliability as attorneys at law, and' in'March, 1916, on demand of the defendant, they executed a like, bond, to cover the second year of the contract, paying a premium of $25 for each bond; that the defendant performed its part of the contract until June 17, 1916, when it notified the plaintiffs by letter that from July 1, 1916, the contract would be cancelled and the petitioners’ names discontinued in the defendant’s publications, as its representatives for Atlanta, Ga., and immediately after this notice the defendant dropped the plaintiffs from its published lists and directories, and refused and failed .to advertise and recommend them as representatives of the defendant; that by reason of the contract between the plaintiffs and the defendant, which was entered into by the plaintiffs with the understanding that it was a profitable medium for producing business for them, and because of the large number of attorneys, forwarding agencies, and business concerns who were under agreement with the said C-E-C Law List to use its Atlanta attorneys when sending business to Atlanta, and because the plaintiffs had been in said Law List for about ten years, and were personally and favorably known to a large number of said lawyers, forwarding agencies, and business concerns, and had been used by them for a long number of years as their Atlanta representatives because of their connection with the C-E-C Law List, the plaintiffs earned during the year ending June, 1915, the sum of $12,000, and during the year ending with June, 1916, $10,000; and the said contract was worth to the plaintiffs $10,000 per year, and had not the defendant breached and wrongfully can-celled it, they would have earned $10,000 during the year ending with June, 1917, by reason of and through the said contract; wherefore they pray judgment for that sum.
    The contract ahd paragraph 2 of the demurrer, which is based on certain provisions of the contract, and to which the’ judgment dismissing the demurrer refers, are set out in' the decision of this • court. The judgment of the court below was as follows: “The general demurrer 'contained in paragraph 2 is sustained and the petition dismissed, with costs against the plaintiffs; this ruling being made after the plaintiffs’ counsel had stated in open court that they did not claim damages by reason of the bond premium, but this allegation being placed in the petition to show a waiver of the provisions of the contract sued on reserving to itself the right to cancel the contract at^will. The other grounds are not passed on.” Among other grounds of the demurrer are the grounds that the damages alleged are so remote that they can not be recovered; that they are speculative, contingent, and so indefinite that they are impossible of computation.

      Westmoreland, Anderson & Smith, for plaintiffs, cited:
    On the 'proposition that the provisions as to cancellation were without mutuality and void: Notes in 20 L. R. A. (N. S.) 899, 900; 19 Id. 599. As to waiver of such provisions: 5 Elliott on Contracts, §§ 4175-6, 4780, and cit.; 19 Cyc. 801-2. Damages not remote and speculative: Baldwin v. Marqueze, 91 Ga. 404; 8 R. C. L. 501 et seq.; Wells v. Nat. Life Asso., 99 Fed. 222; 53 L. R. A. 33, notes; 3 Elliott on Contracts, §§ 2134-5, and cit.; Tygart v. Albritton, 5 Ga. App. 412.

      Little, Powell, Smith & Goldstein, for defendant, cited in addition to cases cited in the following decision:

      Georgian Co. v. Kinney, 19 Ga. App. 732; Red v. Augusta, 25 Ga. 386; Ga. R. v. Hayden, 71 Ga. 518, 522; Howard v. Stillwell &c. Mfg. Co., 139 U. S. 205; 3 Park’s Ann. Code, §§ 4394-5, and cit.; Copeland v. Tyus, 21 Ga. App. 485 (94 S. E. 633); Clay v. W. U. Tel. Co., 81 Ga. 285; 3 Elliott, Contracts, §§ 1871, 2134; Sparks Milling Co. v. W. U. Tel. Co., 9 Ga. App. 728; 13 Cyc. 54; Young v. Cureton, 87 Ala. 727 (6 Sou. 352); Baldwin v. Marqueze, supra (distinguished) .
   Luke, J.

This ease arose as an action for damages on account of an alleged breach of the following contract entered.into between plaintiff and defendant: "In consideration of the mutual undertakings hereinafter set forth, it is agreed by and between The C-E-C Law List Company, a corporation duly organized under the laws of the State of New York, and the undersigned attorney: Sec. 1. The C-E-C Law List Company on its part.agrees: 1. Eepreséntation. To enter said attorney’s name in The C-E-C Law List as one of three of said list in and for Atlanta, Ga., and refer to said attorney all near-by towns where said list is not represented by resident attorney. 2. Inducements to forwarders. 'To supervise generally ’all representatives appearing in The C-E-C Law List, protecting forwarders against loss arising out of failure to account for moneys received.- Sec. 2. The undersigned attorneys-on their part agree: 1. Eepresentátion. To pay The C-E-C Law List Company the sum of $200.00, payable one half July, 1st, one half January 1st, for one year’s representation; said .payment being made in consideration of the editing, publishing, and circulating the C-E-C Directory. 3. Fidelity and promptness.. Any claim received against a client that . . can not consistently prosecute without prejudice will be immediately returned to forwarder without charge. 3. Commissions. Where no special arrangements for other terms are made prior to ‘collections, our charges for handling of all business submitted by forwarding attorneys will be in accordance with schedule' of fees submitted with the item of business, or, in the absence of such schedule,' by the following rates, to wit: Collections without suit, on amounts up to $300, 10 per cent.; on excess of $200 up to $500, 7 per gent.; on excess of $500 up to $1,000, 5 per cent.; on excess over $1,000, 2 1-2 per cent.; minimum'fee, $3.00; claims under $6.00, 50 per cent. Collections by suit, the same fees as if collected without suit, unless an agreement is actually made with forwarding attorney that an-additional fee may be charged. Expenses. No expenses to be charged to forwarding attorney unless especially authorized in advance. Bar association rates: Where bar rates obtain, attorney must on each claim notify, forwarding attorney of the fact and obtain his consent to local. schedule before action is taken, otherwise abide by rates stipulated by forwarding attorney. Division with forwarding attorney. All charges for handling of claims to be divided with the forwarding attorney on basis of mutual services and in accordance with the prevailing custom of one third to forwarding attorney where other terms are not especially arranged. Se'c. 3. It is mutually agreed that this contract shall terminate two years from date, unless sooner terminated by The C-E-C Law List Company, which reserves the right to cancel at any time by returning the unearned portion of this subscription. Dated June 30, 1915. Signed: Anderson, Slate & D’Orr. Accepted: The C-E-C Law List Company, by Samuel Taylor, Pres.” ,

The plaintiff alleged that the defendant breached the contract by cancelling it July 1, 1916, and that by reason of this breach they suffered damage in the sum of $10,000, the amount they would have earned as fees from .business forwarded them through • the medium of advertising furnished‘by the book circulated by the defendant. The petition was dismissed on demurrer, the court sustaining paragraph 2 of the demurrer, which is as follows: “Defendant demurs generally to said petition, because it affirmatively appears, from the contract which is attached as an exhibit, that the defendant reserved the right to cancfel the contract at any time,, by returning the unearned portion of the subscription, and it affirm-, atively appears from the petition as a.whole that the subscription price of $200 was for the period from July 1, 1915, to June 30, 1916, and that the contract was terminated on June 30, 1916, and, therefore^ no unearned portion of the subscription price was due to the plaintiff.” The court did not err in, sustaining the demurrer and dismissing the suit. The petition was subject to other grounds of the demurrer, which would work a dismissal of the suit. See Crittenden v. Southern Home Building & Loan Association, 111 Ga. 266 (5) (36 S. E. 643). The damages claimed were remote, uncertain, and speculative. See Thornton v. Cordell, 8 Ga. App. 588 (4) (70 S. E. 17).

Judgment affirmed.'

Wade, C. J., and Jenlcins, J., concur.


author: Bloodwobth, J.

text:
    9338.
    Colquitt Lumber Company v. Hodges.
    Decided May 16, 1918.
    Complaint; from Colquitt superior court—Judge Thomas. October 13, 1917.
    Hodges brought suit on an open account against Colquitt Luinber Company, for -a balance alleged to be due on three car-loads of lumber and the cost of certain inspection. He alleged that upon complaint filed by the defendant as to one of the cars of lumber, and by agreement with defendant, an inspector of the Georgra-Elorida Saw Mill Association inspected the lumber and made á report favorable to the plaintiff, and, when the defendant refused to pay, suit was brought. The defendant admitted ordering the lumber, but denied liability, and alleged that the car of flooring in dispute “was for their purpose entirely worthless,” and denied agreeing to be bound by the inspection. The trial resulted in a verdict for the plaintiff, and, the defendant’s motion for a new trial being overruled, it excepted.
   Bloodwobth, J.

1. The 4th and 5th grounds of the motion for a new trial are merely amplifications of the general grounds. The 6th and 7th grounds are too general, indefinite and vague for consideration by a reviewing court.

2. When considered in connection with the evidence, and in the light, of the entire charge, the excerpts quoted in, the 8th and 9th grounds of the motion are not erroneous.

3. The court did not err in “submitting to the jury the question of inspection.”

4. The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment ■affirmed.

Broyles, P. J., and Harwell, J., concur.

Shipp & Kline, for plaintiff in error.

J. Frank Norman, Eartsfield & Co.nger, contra.


author: Bloodworth, J.

text:
    9364.
    Gulf Paving Company v. City of Atlanta.
    Decided May 16, 1918.
    Rehearing denied July 30, 1918.
    Action for money had and received; from Fulton superior court —Judge Bell. November 6, 1917.
    The City of Atlanta advertised for bids for the paving of a portion of Peachtree street. A part of the advertisement calling for bids was as follows: “Each propqsal shall contain the full name of every person, firm, or corporation interested in the same, and the address of the person, firm, or president and secretary of the corporation bidding, and shall be accompanied by a certified check upon a national bank, drawn to the order of the City of Atlanta, in the sum of one thousand $1,000.00) dollars, which shall be forfeited to the city as liquidated damages in the event the bidder fails to sign the contract and furnish the required bond within .the prescribed time. The bidder to whom the contract may be awarded shall attend at the office of the mayor, with the sureties offered 'by him (or them), within ten days (Sundays excepted), after the date of the notification by the chief of construction of the acceptance of his or their proposal, and there sign the contract, in triplicate, and furnish the required bond for the work. In ease of failure to'do so, he or they will be considered as having abandoned the same, and the certified cheek accompanying the proposal shall be forfeited to the city.”
   Bloodworth, J.

1. Since the adoption of the amendment to section 2 of article 6 of the constitution of this State, ratified November 7, 1916, and proclaimed by the Governor on December 15, 1916, as a part of the constitution, the. Court of Appeals has no jurisdiction of any case that involves a construction of the constitution of the State of Georgia.

2. Under repeated rulings of the Supreme Court, that court will not pass upon a constitutional question not properly raised in the court below. A constitutional question is not properly raised where -no provision of the constitution is specified. Johnston v. Brenau College, 146 Ga. 182 (5), 186 (91 S. E. 85).

3. Under the foregoing rulings the question as to whether the City of Atlanta, under the constitution of this State, could legally enter into the proposed contract set forth in the petition can not be considered by this court; nor can the question be certified to the Supreme Court; nor can the case he transferred to the Supreme Court. '

4. The questidn last referred to being eliminated, the petition- did not set forth a cause of action, and the court did not err in sustaining the general demurrer and dismissing the petition.

Judgment affirmed.

Broyles, P. J., and Harwell, J., eoneur.

The bid of the Gulf Paving Company was accepted, and the .company was notified by the city and requested to give bond and sign the contract, as provided above. The' company refused to give the bond, alleging that the city had no legal right to contract for this paving, because, “after having consulted counsel, it was advised that the City of Atlanta could not legally enter into such contract, and it so informed the chief of construction by communication addressed to the chief of construction of the City of Atlanta, dated September 6th, 1916, demanding at the same time the return to it of its original bid and of its deposit of one thousand dollars.” On refusal of the paving company to give bond and sign the contract, the city had the deposited check cashed, and the amount thus received was turned into its treasury. Thereupon the Gulf( Paving Company brought suit against the city. The plaintiff alleged that it had made a formal and timely demand in writing on the city for the return of its check, and that the city refused to comply. Paragraph 16 of the petition is as follows: “That, under the constitution and laws of this State, a municipality may not lawfully enter into a contract whereby it is required to pay a sum of money or become indebted in any sum of money for any purpose whatsoever, unless there is, at the time of incurring the liability, a sufficient fund in the treasury of the municipality which may be lawfully used to pay the liability incurred, or a sufficient sum of money to discharge 'the liability can be raised by taxation during the current year; and, as heretofore set out, at the time the City of Atlanta invited bids for the paving of Peachtree street between Fifteenth street and the city limits, and at the time your petitioner filed its bid, to wit, July 31st, 1916, and deposited the sum of one thousand dollars in accordance with the invitation therefor,.and at the time it was proposed by the city to enter into a contract with it in accordance with such bid, the city conld not lawfully make such contract; for that it did not have a sufficient sum of money in the treasury, at any of the times named, to be lawfully used for the payment of the liability which would be incurred in the making of this contract, nor could it raise a sufficient sum by taxation during the current year to discharge the liability, because of the facts as hereinbefore set out.” Attached to and made a part of the petition is a copy of the'ordinance of the city, in which the paving was estimated to cost .$97,-054.20. Of this amount $46,835.20 was to be raised from assessments against property owners, $26,801.40 from assessments against the Georgia Railway & Power Company, and'the balance ($23,-417.60) the city expected to receive from the County of Fulton.

A general demurrer to the petition was sustained, and the case dismissed, and thé Gulf Paving Company excepted.

Anderson,. Rountree & Crenshaw, for plaintiff.

J. L. Mayson, S. D. Hewlett, for defendant.