text:
    9656.
    SCOTT & COMPANY v. WARD.
    Decided February 12, 1919.
    Rehearing- denied February 28, 1919.
    Where a vendor of land executed to the vendee a bond- for title and delivered to him the possession of the land, and thereafter the vendee rented the land and transferred the rent contracts to the vendor, the only legal effect of the transfer was to place the title to the rent contracts in the transferee and “carry the liens as a necessary incident thereof,” as provided in the Civil-Code of 1910, §§ 3345, 3346, and with the right in the transferee to enforce the liens arising under the contracts as provided in § 3347 of the code.

      (a) The fact that the transferee of the rent contracts was also the vendor of the land did not cancel or -rescind the original contract of sale, or create the relation of landlord and cropper between the vendor of the land and those cultivating it under contract with the vendee, nor did it place the title to any portion of the crop in the vendor.

      Complaint; from city court of La Grange—Henry Beeves, judge pro hae vice. February 26, 1918.
    In the fall of 1913 Ward sold certain lands on credit to Hogg, taking notes for the purchase-price and giving a bond for title. On January 24,1916, Hogg executed and delivered to Ward the following paper: “For value received I hereby.transfer and assign to W. A. Ward my landlord’s liens for the year 1916, on all crops of the tenants hereinafter named, and also transfer and assign to W. A. Ward the rents due me by the following named tenants for the year 1916; said tenants being Major Cooley, one-horse farm on halves; Geo. Lynch, one-horse farm on halves; Peter Brooks, one-horse farm on halves; Sam Lovelace, alias Sam Sherman, one-horse farm on halves; William Lovelace, 1-1/2 bales of cotton, standing rent; William Lovelace Jr.,’ 2 bales, stánding cotton rent; J. W. Ward, 2 bales cotton, standing rent; Bichard Key, 2 bales, standing rent; Abb Copeland, 600 lbs. lint cotton, standing rent; Tom Winston, 4 bales, standing rent; A. F. & S. F. Ward, 4 bales, standing rent; said bales to be 500 lbs. each, of middling cotton, packed in merchantable bales delivered in West Point; also all rent of all tenants on the Palmer home place, on which there will be run a 4-horse farm on halves. These rents are due and payable October 15,1916. These rents are given for the land purchased by me from W. A. Ward, and are for the rent of the lands for the year 1916, and are to be turned over to W. A. Ward, to be credited to the indebtedness I am now due him for the purchase of said lands. It is the intention of this paper to transfer and assign all my rights and liens as landlord so that W. A. Ward may enforce his landlord’s lien for rents and supplies and advances he may furnish said tenants to make crops for the year 1916. Witness my hand and seal, this January 24, 1916.”
    Hogg applied to Scott & Company, merchants dealing in farm supplies; to furnish his tenants for the year 1916, and they agreed to do this on condition that Ward would waive a certain amount of rent for each of Hogg’s tenants. This he did on April 6th. There were six of these “waivers,” all alike except as to name of tenant, amount of land to be cultivated, and amount of rent cotton to be waived. The following is a copy of one of them: “In order to enable W. F. Hogg and Perry Green to get mule, guano, and supplies to make a crop on my farm which I have rented him for the year 1916, I agree to let him use first 3,000 lbs. middling lint cotton. Completing my rent for two-horse farm on place known as -farm for the year 1916. All other farm products to be subject to indebtedness with Scott & Co. I also agree not to furnish him anything as landlord for the year 1916.” After receiving these “waivers” Scott & Company furnished the tenants and charged the account of each tenant to him and Hogg. In the fall of 1916 Hogg and'his tenants delivered certain cottton and cottonseed to Scott & Company. Ward claimed that a half of the cotton and cottonseed delivered to Scott & Company belonged to him as landlord, and, upon their failure to make settlement with him therefor, he filed a petition against them, alleging that he was the owner of the lands upon which this cotton and cottonseed had been raised, that he was farming thereon, that said lands “were operated by croppers of petitioner,” and that “defendant agreed to furnish the croppers of petitioner during said year, on condition that petitioner would waive his rights as landlord so that the croppers could secure the defendant for supplies furnished, which condition was met by petitioner, he waiving in writing his rights as landlord,' for the purpose of having said croppers buy such supplies as necessary for the purpose of making a crop.” He further alleged that his croppers delivered to defendants the cotton and cottonseed raised by them, and a half of the cotton and cottonseed of each cropper was sufficient to pay the indebtedness of that cropper, and the other half of the cotton and cottonseed belonged to him. Defendants filed a plea denying liability, and further pleading that the plaintiff was .not landlord, but that Hogg was the owner of the land and in possession thereof, and that the supplies they furnished were to Hogg and his croppers, and were so charged on their books, “all of which was done with the knowledge of said W. A. Ward.” Defendants further pleaded that they had made full settlement with Hogg and his croppers. The issues raised by the pleadings were submitted to the jury, they rendered a verdict for the plaintiff, and the defendants exéepted.

      B. J. Mayer, for plaintiffs in error. M. U. Mooty, contra.
   Bloodworth, J.

(After stating the foregoing facts.) The plaintiff testified, in part, as follows: “I sold the property tó Hogg in the fall of 1913, and gave him a bond for title. I don’t know where the bond for title is. I gave it to him, and it is his property, and still his property; it is my property but his bond. I have not paid taxes on it since then, and haven’t given it in for taxes. Hogg hasn’t paid me for it, and I still hold his- notes. When this transaction took place Hogg was in possession of the property. In 1916 'he came to me and told me he was unable to go further and was unable to furnish his hands and was unable to.meet his payment, and we went into this written agreement under this contract. I didn’t consider that Hogg was still the landlord. My attorney told me I was in possession under this contract and that Hogg was not under the bond for title. I signed the‘waivers to furnish certain hands and W. F. Hogg, which was done at the request of Hogg.” The “written agreement” referred to in the evidence just quoted is the paper copied in the statement of facts, and dated January 24, 1916. A copy of the “waivers” referred to will also be found in the statement of facts. A part of the evidence of Hogg is as follows: “I hold land that I hold under bond for title that I purchased from W. A. Ward; I held this land in 1916; I purchased the land from W. A. Ward in 1913, and I was in possession of the land in 1916 and am in possession of it now; I know Sam Lovelace, Major Cooley, Whit Davidson, Perry Green, Peter Brooks, and Geo. Lynch; they were tenants in 1916 on the lands I purchased from W. A. Ward; they were working that year on halves; I. M. Scott & Co. furnished them at my request. . . I paid the taxes on the property in 1916 and 1915. . . I made the agreements with these negroes for the year 1916 and Ward did not make them and he never had anything to do with them.”

Under'the foregoing facts it is quite‘dear that the relation of landlord and cropper never existed during the year 1916 between Ward and those who cultivated the land sold by him to Hogg. The evidence shows that Ward sold the land to Hogg, gave him bond for title which Hogg still held, and Ward held the notes given for the purchase-price of the land. In Broxton v. Ennis, 96 Ga. 792 (22 S. E. 945), it was held: “Where, under a contract for the sale of land, the vendor executes .to the vendee the usual bond for titles, and delivers to him the possession of the premises, even if the latter fail to pay the purchase money at maturity, he may nevertheless retain possession, either by himself or his tenant, until such time as he shall be legally evicted therefrom by the vendor; and the tenant who enters under the vendee cannot, without first surrendering his possession to the latter, attorn to the vendor upon any supposed right of the latter, without the consent of the vendee to rescind the contract of sale.” In the case of Guin v. Hilton & Dodge Lumber Co., 6 Ga. App. 488 (65 S. E. 332), this court referred to Broxton v. Ennis, supra, and said: “This decision is in effect a holding that the vendee in possession under a bond for title is to all intents and purposes the owner of the land until the vendor, in some manner prescribed by law, recovers possession of the land.”

Applying the rulings in those cases to the facts of the one now under consideration, we must hold that Hogg was landlord and that the only legal effect of the paper of January 24,1916, was to transfer to Ward the title to the rent contracts and “carry the liens as a necessary incident thereof,” as provided by §§'3345 and 3346 of the Civil Code of 1910, with the right in him to enforce the liens arising thereunder as provided in § 3347 of said code. It did not cancel or rescind the contract of sale of the land made by Ward to Hogg, nor did it change the relation between Hogg and the tenants and make Ward landlord, nor did the “waivers” signed by Ward have this effect. It will be noted that in the agreement of January ■24, 1916, Hogg transfers to Ward his liens for 1916 “on all crops of the tenants hereinafter named,” and also transfers and assigns to Ward “the rents due me by the following named tenants for the year 1916.” This transfer says also: “These rents are due and payable Oct. 15,1916; these rents are given for the lands' purchased by me from W. A. Ward and are for the rent of the lands -for the year 1916, and are to be turned over to W. A. Ward to be credited on the indebtedness I am now due him for the purchase of said lands.” As the petition was based upon the allegation that the plaintiff was the landlord and that the parties cultivating the land were his “croppers,” and as the evidence clearly establishes the fact that he was not the landlord, and that the persons cultivating the’ land were not his croppers, and that he had only a lien on the cotton and cottonseed raised by the tenant, and not title thereto, the evidence fails to support the allegations of the petition. The verdict is therefore contrary to-the law and the facts, and must be set aside. Under this ruling it is unnecessary to consider the special'grounds of the motion fgr new trial. ^

Judgment reversed..

Broyles, P. J., and Stephens, J., concur.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    9694.
    Robinson v. The State.
    Decided February 12, 1919.
    Conviction of manslaughter; from Talbot superior court^Jndge Howard. March 33, 1918.

      W. D. Crawford, A. P. Persons, George C. Palmer, for plaintiff in error.

      C. F. McLaughlin, solicitor-general, T. T. Miller, J. H. McGehee, . contra.
   Stephens, J.

1. The various exceptions taken to the' charge of the court are without merit, and show no error. The charge fairly presented all the issues and substantially covered all matters contained in the various requests to charge.

2. The court committed no error in sustaining the objection to the testimony offered' as set out in the 19th ground of the amendment to the motion for new trial: Nor was there error in overruling the objections to the admission of the testimony offered for the purpose therein stated, as set out in the 20th, 21st, 22d, and 23d grounds.

3. The alleged newly discovered evidence set forth in the 26th ground of the amendment to the. motion for new trial was merely cumulative in its nature, and, a counter-showing having been made on the hearing of the motion, there -was not presented sufficient cause for a new trial.

4. The evidence supported the verdict and no error of law was committed by the trial judge in overruling the motion' for new trial.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.


text:
    9710.
    Metropolitan Life Insurance Company v. Thompson.
    Decided February 12, 1919.
    Action on insurance policy; from city, court of Waycross—Judge Crawley. March 19, 1918.

      Parks & Peed, for plaintiff in error.

      Parker & Parker, contra.
   Stephens, J.

1. The suit not having been instituted by an indorsee, assignee, transferee, or the personal representative, of a deceased person, it was error to exclude the testimony of a witness for the defendant upon the ground that his testimony purported to be as to transactions or communications with a deceased person. Cody v. First National Bank, 103 Ga. 789 (3) (30 S. E. 281). It was also error to exclude this testimony on the other grounds interposed.

2. The testimony offered by the defendant was relevant to the issue, and the court erred in excluding it and directing a verdict for the plaintiff.

3. The law of this ease was settled by this court when the case was here before. Metropolitan Life Ins. Co. v. Thompson, 20 Ga. App. 706 (93 S. E. 299).

Judgment reversed,

Broyles, P. J., and Bloodworth, J., concur.


author: Broyles, P. J. Broyles, P. J.

text:
    9728.
    KENNEDY v. McCOOK.
    Decided February 12, 1919.
    Rehearing denied February 28, 1919.
    Complaint; from Pike superior court—Judge Searcy. March 16, 1918.

      E. F. Dupree, E. C. Armisiead, for plaintiff.

      Redding & Lester, for defendant;
   Broyles, P. J.

1. There 'is in the record no evidence authorizing the defendant to have, as against the plaintiff’s claim sued on, a set-off for the rents on the lands in question for the years 1916 and 1917. The jury, by their verdict, having found that the defendant was entitled to have the rents for those years set off against the plaintiff’s claim, the court erred in overruling the general grounds of the plaintiff’s motion for a new trial.

2. Under 'the foregoing ruling, it is unnecessary to consider the special grounds of the motion for a new trial.

Judgment reversed.

Bloodworth and Stephens, JJ., concur.

ON MOTION FOR REHEARING.

Broyles, P. J.

The fact that the lease-contract for certain lands was transferred by Mrs. McCook to Kennedy as collateral security for the notes sued on, and that he agreed to collect the rents every-year, does not show that it was his duty under the law, or thát he obligated himself, to keep the lands rented. The undisputed evidence was that when the lease-contract was transferred there was a tenant upon the lands; that he continued there during the years 1914 and 1915, and that Kennedy collected the rents for those years and accounted for them to Mrs. McCook; that the tenant left the lands at the end of the year 1915, and that they were not rented to any one for the two following years. There was no evidence which authorized a finding that Kennedy was responsible for the tenant leaving, or that it was his duty to secure another tenant and keep the lands rented. In our view of the case his obligation was merely to colled the rents from any tenant that might be upon the lands and to account for such rents.

Rehearing denied.

Bloodworth and Stephens, JJ., concur.


author: Bloodworth, J.

text:
    9732.
    CARTER v. AMERICAN SLICING MACHINE CO.
    1. Demand by the plaintiff for the property involved was not necessary before an action of trover for a machine in the defendant’s possession, sold to him by the plaintiff, under a contract by which title to it was retained in the vendor until full payment of the purehase-pricei where ' the defendant refused to pay the agreed pr-ice in full, contending that the property was worthless to him.
    2. The value of the property was shown prima facie by the agreed price: in the contract of sale. The direction of a verdict for that amount, less payments made, was authorized, under the pleadings and the evidence.
    Decided February 12, 1919.
    Trover; from the city court of Carrollton—Judge Beall. February 26, 1918.
    The defendant pleaded failure of consideration, alleging facts to which he testified on the triah The plaintiff introduced in evidence the contract under which the machine involved in the suit had been delivered to the defendant, and admitted that the defendant had paid $30 on it. The contract price was $135, payable in installments, all of which were to become due on failure to pay any part of the agreed sum when due; and the contract contained provisions as follows: “The American Slicing Machine Company guarantees the machine shipped by virtue of this^ order to be constructed of good material and free from defective workmanship. . . . No verbal agreement can change or modify the conditions of this contract; . . there is no verbal or written understanding or agreement different from or other than the printed conditions of this contract.” It was provided that title to the machine should remain in the vendor until full payment of the purchase-price. The contract was dated September 28, 1915. The defendant testified: “I received the machine described. . •. It worked for a while; the first spring worked for about one month, then the company sent me another, which lasted only a few days. I did not use the machine after the second spring gave out.- I used it in all about forty days. When the first spring gave out I advised the company and they sent me a new one; the new one gave out. . . It was not strong enough to do the work.” The defendant introduced a letter sent by him to the plaintiff, dated February 10, 1916, in which it was stated that he enclosed a check for $10 to be applied on his, account, and that he wanted a described spring for the machine, as the one that worked the feed was broken, and he could not use the machine without another spring; also a letter dated February 28, 1916, saying: “I have hád to do without the use of it [the machine] half the time it has been here; so you see I have become very much disappointed with it; so make me a proposition on it, and if anywhere in reason I will return it to you;” also a letter dated March' 13, 1916, saying he had made arrangements for another slicer, as he could not do without the use of a machine, and had been trying for nearly two months to get the plaintiff’s machine to work and was still doing without the use of it, and “you can instruct me as to what you want to do about this one;” also a letter to the same effect, dated June 10, 1916. He further testified: “I made every reasonable effort to use the machine before I made other arrangements. After notifying the company that I could not use the machine, on account of defects, I made other arrangements. I could not use the machine; it was worthless to me. The company shipped me a new machine, but I did not uncrate it; I did not order it. I turned it over to Mr. Boykin, counsel for plaintiff. I am in the meat business and I need a slicing machine pretty much all the time. I kept the machine on my counter for about three months, I suppose, and during that time it was out of order half the time. I was forced to make other arrangements., I was doing a large market business and was forced to use a machine every day. I am not claiming the machine that the sheriff has,—the first one shipped. I am only claiming the money that I paid them on a defective machine.” (On cross-examination.) “I did not send it back to the factory. . . I made no further effort, after the second spring gave way, to use the machine. I made other arrangements. . . As soon as I wrote them that the second spring would not work, they wired me that they were shipping a new machine . . . Ty prepaid freight’. . . At first they did all they could to fit me up in a good machine, but when it proved defective I wrote them and heard nothing from them. They did not advise me what to do with the old machine, but sent a new one. I did not refuse to turn the machine over to them.” In response to the question, “You would not turn it over to us until we made a settlement with you for the amount you had paid?” the defendant replied: “You wanted me to pay you for it instead of letting you have it back. Of course, when the sheriff came for it, I did not hesitate to let him have it. The sheriff is the only man that made any demand on me that I have any recollection of.” The defendant admitted that on receipt of the machine he signed a statement to the plaintiff that it had been set up and tested and was apparently in good condition. At the close of the defendant’s evidence, counsel for the plaintiff moved that a verdict for the contract price be directed. The court directed a verdict in favor of the plaintiff for $105; to which the defendant excepted, contending that it was error because no demand for the" machine was made before suit, and there was no waiver of demand; that it was a question of fact for the jury, whether the consideration had failed; that the verdict was error because of the guaranty in the contract, and the evidence showed that the machine was defective and not of the kind guaranteed; and that the court erred in treating this contract as an express warranty that in effect excluded an implied warranty.

      S. Holderness, for plaintiff in error, cited:
    Civil Code"(1910), § 4135; Pidcock v. Crouch, 7 Ga. App. 299 (2).

      Buford Boykin, contra, cited:
    Civil Code, § 4483; Sappington v. Rimes, 21 Ga. App. 810; Muse v. Wright, 103 Ga. 783; Williams Mfg. Co. v. Schofield’s Sons Co., 21 Ga. App. 23; Bullard v. Brewer, 118 Ga. 918; Fay & Eagan Co. v. Dudley, 129 Ga. 314; Pidcock v. Crouch, supra; National Computing Scale Co. v. Eaves, 116 Ga. 611 (2); Means v. Subers, 115 Ga. 371, and cases cited in the following decision.
   Bloodworth, J.

The American Slicing Machine Company sold to Y. L. Carter a slicing machine and retained title thereto. The terms of the sale were $10 cash, 12 monthly payments of $10 each, and a final payment of .$5 within 13 months. After making three payments of $10 each Carter refused to pay more, claiming that the machine was “not any good to me at all.” The vendor brought an action of bail-trover. Carter filed pleas, and, among other things, alleged failure of consideration. On the trial, after all the evidence, including the contract, was in, the trial judge directed a verdict for $105, being the amount of the purchase-price, less the payments of $30. The defendant excepted.

1. “In an action of trover by a vendor against a vendee, in which the former claims title based upon a note reserving to himself title to the property sold until the purchase-money is paid, no demand is necessary where it appears that the defendant was "in possession of the property, claiming title thereto, at the time of the action, his defense being that, owing to a partial failure of consideration, he was not due the balance of the purchase-money to the plaintiff.” Muse v. Wright, 103 Ga. 783 (30 S. E. 662). While the facts in the case under consideration differ somewhat from those in the case of Muse v. Wright, supra, the principle involved is the same in both cases. See Civil Code (1910), § 4483; Grant v. Miller, 107 Ga. 804 (2) (33 S. E. 671); Scarboro v. Goethe, 118 Ga. 543 (45 S. E. 413); Moore v. Ramsey, 144 Ga. 118 (86 S. E. 219); Young v. Durham, 15 Ga. App. 679 (5) (84 S. E. 165); Pearson v. Jones, 18 Ga. App. 448 (4a) (89 S. E. 536).

2. “It has been held a number of times by this court, that, as between the original seller and the original purchaser, the agreed price as stated in the contract of sale is prima facie but not conclusive evidence of the actual value of the property, and that upon proof.of the contract, in the absence of rebutting testimony as.to value, the plaintiff was entitled to recover the balance due thereon.” Lott v. Banks, 21 Ga. App. 249 (94 S. E. 324). See also Elder v. Woodruff Hardware Co., 9 Ga. App. 484 (71 S. E. 806); s. c., 16 Ga. App. 255 (82 S. E. 268); Jordan v. Jenkins, 17 Ga. App. 58 (86 S. E. 278); Moore v. Furstenwerth-Uhl Jewelry Co., 17 Ga., App. 669 (87 S. E. 1097); Young v. Durham, supra. The written contract of sale showed an agreed purchase-price of $135 for the machine. There was no other testimony as to value. It was admitted that $30 of the purchase-price had been paid. Under the pleadings and the evidence, the court properly directed a verdict for $105, the amount of the purchase-price, less the admitted payments.

Judgment affirmed.

Broyles, P. J., concurs. Stephens, J., concurs dubitante.


text:
    9735.
    ROBINSON v. WOODRUFF MACHINERY MANUFACTURING CO.
    Decided February 12, 1919.
    1. Defects in machinery purchased were no ground for defense to an action on promissory notes for the purchase-money, where a written agreement between the parties, made at the time of the execution of the notes, provided that no complaint should be made by the purchaser after being in possession of the machinery thirty days, and he was in possession of it thirty days under the contract, and it did not appear that he made any complaint as to the machinery during that time.
    2. The request to award damages against the plaintiff in error, as provided by the Civil Code, § 6213, for bringing the case to this court for delay, is denied.
    Complaint; from city court of Nashville—Judge Christian. April • 9,1918.

      J. W. Powell, for plaintiff in error. W. R. Smith, contra.
   Bloodworth, J.

1. J. M. Robinson gave to Woodruff Machinery Manufacturing Company three notes for the purchase-price of certain machinery. Title to the property was reserved in the vendor. Robinson signed a separate agreement of even date with the notes, containing the terms and conditions of the sale, one clause of which is as follows: “It is hereby agreed and understood by both iessor and lessee that no complaint shall be made by the lessee after he has been in the possession of the machinery thirty days.” Robinson haying failed to pay the notes, an attachment against him was issued and levied on the property, and a declaration in attachment filed. Robinson filed a plea in which he admitted signing the notes, but denied indebtedness, and alleged fraud and failure of consideration. The case proceeded to trial, and a verdict in favor of plaintiff was directed by the court. The bill of exceptions assigns error upon the direction of the verdict, and upon the' overruling of a motion for new trial, which was based on the general grounds. There was no plea and no evidence that Robinson made complaint of any kind in reference to the machinery prior to having been in possession thereof for thirty days. Under numerous decisions of ■our courts of last resort, under the clause of the contract above quoted, notice before the expiration of the thirty days was a condition precedent to recovery 'by the defendant, and the trial judge properly directed the verdict and overruled the motion for new trial. See Ducros v. Peoples Drug Store, 21 Ga. App. 636 (b) (94 S. E. 897); City of Moultne v. Scofield’s Sons Co., 6 Ga. App. 464 (4) (65 S. E. 315); Brooks Lumber Co. v. Case Threshing Machine Co., 136 Ga. 754 (2) (72 S. E. 40); Walker v. Malsby Co., 134 Ga. 399 (67 S. E. 1039); Fay & Eagan Co. v. Dudley, 129 Ga. 314 (58 S. E. 826); International Harvester Co. v, Dillon, 126 Ga. 672 (55 S. E. 1034); Beasley v. Huyett & Smith Mfg. Co., 92 Ga. 273 (18 S. E. 420).

2. Not being fully convinced that this case was brought to this court for delay only, the request to award 10 per cent, damages against the plaintiff in error, as provided by § 6213 of the Civil Code of 1910, is denied.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


text:
    9828.
    Thomas v. Georgia Railway and Power Company.
    Decided February. 12, 1919.
    Action for damages; from Fulton superior court—Judge Ellis. April 29, 1918.

      C. D. Maddox, S. A. Massell, for plaintiff.

      Colquitt & Conyers, for defendant.
   Stephens, J.

1. “The court sustained defendant’s . . demurrer, but allowed plaintiff twenty days in which to amend her petition and meet this demurrer. To this ruling no exception was taken, nor is error assigned thereon in the bill of exceptions. Therefore, the ruling that the petition was subject to this . . demurrer became the law of the case. The plaintiff, within the twenty days allowed, filed a purported amendment to her petition. This amendment, however, . . clearly failed to meet the objections raised by the demurrer. No further amendment was offered within the twenty days allowed in the court’s order. Under these facts the court did not err in dismissing the 'plaintiff’s ease.’’ Baker v. City of Atlanta, 22 Ga. App. 483 (96 S. E. 332).

2. The amendment to the plaintiff’s declaration having been allowed subject to demurrer, it was not error to entertain defendant’s motion, made after the call of the’ ease for trial but before plaintiff’s counsel finished reading his declaration to the jury, to dismiss plaintiff’s suit upon the ground that the amendment failed to comply with the terms of the original order sustaining defendant’s demurrer to the declaration. Marbut v. Southern Railway Co., 22 Ga. App. 330 (95 S. E. 1021) ; Neal v. Moultrie, 12 Ga. 104 (4) ; Hart v. Henderson, 66 Ga. 568; Cooney v. Sweat, 133 Ga. 511 (2) (66 S: E. 257, 25 L. R. A. (N. S.) 758).

3. The original demurrer having been sustained, and the declaration dismissed, with leave to plaintiff to amend by “separating the petition into two counts, each setting up separate causes of action,” it was not a compliance with this order “to make paragraphs of one count a part of another count by mere reference to same,” and the court did not err in dismissing plaintiff’s suit upon defendant’s motion. Cooper v. Portner Brewing Co., 112 Ga. 894 (3) (38 S. E. 891) ; Train v. Emerson, 137 Ga. 730 (74 S. E..241).

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.


text:
    9830.
    WALDON v. STOKES.
    1. “False representations relating to easements or appurtenances to land, affecting its value, which were made by the owner of such land to another with intention to deceive, and which actually, did deceive him to his injury, and induce him to purchase the property for more than its value, will give a right of action of deceit to the vendee against the vendor, when the falsity of such representations could not have been ascertained by an examination of tbe premises purchased.” Fenley v. Moody, 104 Ga. 790 (30 S. E. 1002).
    Decided February 12, 1919.
    2. The court did not err in overruling the certiorari.
    Certiorari; from Fulton superior court—Judge Bell. April 1, 1918.

      Evins & Moore, Bachman & Simmons, for plaintiff in error.

      W. F. Buchanan, contra.
   Bloodworth, J.

In the municipal court of Atlanta Mrs. S. McA. Stokes sued A. H. Naldon, alleging in part that she purchased from him three vacant lots in the City of Atlanta; that he represented to her “that Forrest & George Adair had an agreement with the City of Atlanta by which the City of Atlanta'was to lay chert paving on Catherine street in front of said lots, without charge, whatever against the person or persons owning said three lots, .nor against said three lots; that your petitioner' relied on the said' representations as being true, and, partly because of the value of said representations, did purchase of defendant the said lots at a price of $3,700; that recently petitioner discovered that there was no such agreement between Forrest & George Adair and the City of Atlanta by which the said city was to gave the street without charge against the property owners; that the City of Atlanta has paved the street and levied on the said three lots an assessment of $310.95, which is a legal charge and lien against said property; that the defendant willfully misrepresented to petitioner the alleged agreement between-Forrest & George Adair and the City of Atlanta, for -the purpose of inducing petitioner to purchase the said land, and that said representation was fraudulently-made, with intent to deceive petitioner, and did deceive her into purchasing the said land, and that petitioner has, as a result, been damaged in the sum sued for; that your petitioner has paid the full purchase-price of the said property.” The defendant filed a general demurrer and a plea. The plea denied all the paragraphs of the petition, except the one alleging that the defendant lived in Fulton county. The plea further alleged that. “The promise alleged in said petition was a promise to answer for the debt, default, or miscarriage of another.- . . . Said promise.was not in writing, signed by the defendant, the party sought to be charged therewith, or by any person by him lawfully authorized.” The case was tried by Judge Bosser, who rendered judgment for the plaintiff; a motion for a new trial .was overruled, and an appeal was taken to the appellate division of the municipal court, which division “rendered a final judgment in said case, affirming the judgment of the lower court and denying defendant'a new trial.” The defendant sued out certiorari; the certiorari was overruled, and he excepted.

The principle announced in the first headnote controls this case, and the headnotes do not need elaboration.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


author: Luke, J.

text:
    9572.
    MORRIS el al. v. SWAIN
    Decided February 12, 1919.
    _The demurrer on the ground of misjoinder of parties and of causes of action should have been sustained, the action being against a constable and the surety on his official bond and a third person for damages on account of arrest and confinement of the plaintiff by the constable and the third defendant together, without a warrant or other legal process and without probable cause, in which arrest and confinement it was alleged the constable acted in his official capacity and committed a breach of the bond.
    Jurisdiction as to a cause of action arising under the bond could not be obtained by merely joining as defendants the principal and the surety with a third person sued as tort-feasor, in a county in which he resided and in which the other defendants did not reside, for acts in which the . surety did not participate.
    Action for damages; from city court of Hazleburst—J. Mark Wilcox; judge pro hac vice. February 18, 1918.
    One of the grounds of the demurrer of' Morris, the surety, was as follows: “This defendant demurs to the petition of plaintiff as
    having both a misjoinder of parties and causes of action,'in that plaintiff in said petition brings suit against one of the defendants, E. H. Ellis, upon an alleged cause of action arising ex delicto, and against Henry C. Ellis and this defendant upon an alleged cause of action arising ex contractu.” E. H. Ellis and Henry C. Ellis demurred jointly, on the ground, among others, that the petition “contains a misjoinder of both parties and causes of action.”

      Newton Gaskins, W. C. Langford, for plaintiffs in error.

      S. D. Bell, contra.
   Luke, J.

G. O. Swain sued E. H. Ellis, of Jeff Davis county, and Henry C. Ellis and B. Morris, both of Coffee county, jointly, in the city court of Hazlehürst. The petition alleged that the defend- . ant injured and damaged the plaintiff in the sum of $500, arising out of the following state of facts: On the 7th day of March, 1916, the plaintiff was arrested by Henry C. Ellis, who was a constable of Coffee county, and E. H. Ellis, who was a resident of- Jeff Davis county. This arrest was made by them without any warrant and without any legal process or authority to make the arrest. At the time of making the arrest B. Morris was surety ón the official bond of Henry C. Ellis, a copy of which was attached to the petition. The said H. C. Ellis stated' to the plaintiff, when called upon for his authority to make the arrest, that he was an officer from Coffee county, and that he (the plaintiff) had escaped from the convict camp in Coffee county, and that he (H. C. Ellis) needed no warrant to make the arrest. After the arrest the plaintiff was brought to Hazlehurst and placed in a “dirty little calaboose” used by the City of Hazlehurst in confining negroes, and was not allowed to see any one so that he could identify himself and show to the officers that he was not the man wanted and who had escaped; and later he was taken from the jail and handcuffed to a bed, and in this condition was forced to remain all night long, and next day the officer H. C. Ellis and E. H. Ellis discovered they were wrong and liberated him. H. C. Ellis was acting as an officer and by virtue of his office of constable, and made the arrest as an officer and by reason of his being an officer from Coffee county, and the confinement of the plaintiff was false and done by said H. C. Ellis -by reason of being such officer, and was without probable cause, and was therefore a breach of the bond of said H. C. Ellis.

The city court of Hazlehurst was without jurisdiction to entertain and try this suit, which was against H. C. Ellis, as constable, and B. Morris, as his bondsman, both residents of Coffee county, and against E. H. Ellis, who resided in Jeff Davis county, the county of the suit, since a suit on the bond of the defendant H. C. Ellis—an action ex contractu—could not be brought in Jeff Davis county, the residence of neither the principal nor the surety on the bond, by merely joining in the suit E. H. Ellis, a joint tort-feasor with H. C. Ellis in certain acts in which his bondsman did not participate. The court erred in overruling the demurrer which attacked the petition upon the ground that there was a misjoinder of causes of action and of parties.

Judgment reversed.

Wade, C. J., and Jenkins, J., concur.


text:
    9888.
    GARNETT, administrator, v. ROYAL INSURANCE COMPANY LIMITED.
    Decided February 12, 1919.
    1. A policy of fire insurance issued to one who has only a life-estate in the property insured is inoperative as to loss occurring after his death, since the termination of the life-estate by his death terminates his insurable interest in the property.
    2. “A deed, signed, sealed, and delivered, and expressing a valuable consideration on its face, imports a legal consideration; and the maker is estopped from alleging or proving the contrary to defeat the depd as title, if to do so involves setting up his own turpitude, and convicting himself of a deliberate intent to defraud his creditors.” Parrott y. Baker, 82 Ga. 373 (9 S. E. 1068).

      (a) “Where a properly executed deed, purporting on its face to have been delivered, was recorded, this raises a presumption of delivery.” Shelton v. Edenfield, 148 Ga. 128 (96 S. E. 3).
    (5) If there be any reason why the deed in question could be set aside, it cannot be accomplished by a collateral attack in a suit in which the grantee is not a party. Moore v. Mobley, 123 Ga. 424 (51 S. E. 351).
    .Action on insurance policy; from Tattnall superior court—Judge Sheppard. May 25, 1918.

      W. T. Burhhalter, for plaintiff.

      King & Spalding, Collins & Stanfield, for defendant.
   Luke, J.

In order that the first headnote may be better understood, it may not be amiss to briefly state the salient facts of the case, and our reasons for the decision here made. G. R. Garnett, as ádministrator of the estate of J. U. Rowe, brought suit against the Royal Insurance Company Ltd., on an insurance policy issued by the defendant company in favor of Rowe, and subsequently transferred by him, with the consent and approval' of the insurance company, to Mrs. Della Easterling, and transferred by her to the plaintiff, for value, after the loss of the insured property. The defendant’s answer admitted the issuance of the policy, but denied any and all liability, on the ground that at the time of the issuance of the policy the assured had no title to the property insured, save only a life-estate, having previously conveyed the property to Mrs. Sallie Easterling by fee-simple warranty deed, reserving only a life interest therein, and that prior to the fire the assured died, thereby terminating his life-estate, and all insurable interest which he had in the property ceased, causing the policy to become of no legal effect. When the evidence adduced on the trial was all in, and after both sides had closed, the trial judge, on motion of counsel, directed a verdict in favor of the defendant'; to which the plaintiff excepted.

The record shows that the policy sued on was dated September 1, 1913, and that on that date Rowe had only a life-estate in the property insured, as he had conveyed the legal title to Mrs. Sallie Easterling on January 10, 1908, reserving for himself a life interest only. On December 16, 1915, he conveyed his interest in the property to Mrs. Della Easterling. He - died on March 13, 1916. After his death the property was destroyed by fire. Upon the conveyance of his interest in the property to Mrs. Della Easterling, she became the possessor of an estate pur auter vie; and upon. the transfer of the policy—Consented to and approved by the insurance company—a new contract was created between Mrs. Easterling and the company, in which she became the assured instead of Rowe. See Hughes v. Hartford Fire Ins. Co., 144 Ga. 740, 741 (87 S. E. 1042). A contract of firé insurance is one of indemnity. It is wholly personal to the assured, and has no connection with the property insured, except to fix the amount of the indemnity. If the insured parts with the property as to which he seeks indemnity, the contract necessarily is at an end; and were he to assign the contract under these circumstances, no right of action whatever could grow out of it to the assignee. However, if the insurer is informed of the cessation of the interest of the assured and its transfer to another, and thereupon accepts the transferee as the assured, this is a new contract to pay, the former insurance being only used to show the terms on which the insurance was effected. See Virginia-Carolina Chemical Co. v. Insurance Co., 108 Fed. 451, 456.

Rowe having conveyed his life interest in the property insured, he no longer had any insurable interest therein, and in fact ceased tó be á party to the contract. The transfer of the policy by Rowe to Mrs. Easterling, and the conveyance of his interest in the property to' her, operated to make the insurance cover the interest of Mrs. Easterling, to wit, her estate for the life of Rowe. Therefore, the legal effect of his death was to terminate the interest of Mrs. Easterling in the property, and consequently she ceased to have, any insurable interest therein. In other words, at the time the property was destroyed by fire, which was subsequent to the death of Rowe, the entire title to the property was in Mrs. Sallie Easter-ling, since the life-estate of Rowe, which he conveyed to Mrs. Della' Easterling, terminated upon his death. Mrs. Della Easter-ling having, therefore, no interest in the property at the time of its destruction by fire, suffered no loss, and her subsequent transfer of the policy to Garnett, administrator of the estate of Rowe, conveyed no rights whatever to him.

The contention of the plaintiff that the insurance company was estopped from setting up the defense that the policy in question was of no legal effect, since the company knew that the assured had only a life-estate in the property insured, is of no consequence, for even if it be true that the company at the time of the issuance of the policy had notice of the true status of the title, this could not in anyway operate to change the controlling fact that the assured- had only a life-estate in the property insured, which terminated with his death; and, the loss having occurred subsequently thereto, the policy was of no legal effect. To sum up the whole matter, the assured, at the time of the loss, had no insurable interest in the property insured, and our statute (Civil Code, § 2472) declares that in order to sustain “any contract of insurance, it must appear that the insured had some interest in the property insured.”

Under the facts in this case, the trial judge, therefore, did not err in directing a verdict for the defendant company.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


author: Broylés, P. J.

text:
    9566.
    AMERICAN NATIONAL BANK OF MACON v. ANDERSON.
    Decided February 18, 1919.
    The contract between the two banks and the acts done in pursuance of it, set out in the plaintiff’s petition and relied on as showing a consolidation or merger of the banks and as rendering the defendant, the American National Bank of Macon,, liable for the sum alleged to be due the plaintiff ffor services performed for the Commercial National Bank of Macon, did not have that effect; and the court erred in overruling the general demurrer to the petition.
    (Certiorari granted by the Supreme .Court.)
    Complaint; from Bibb superior court—Judge Mathews. January 8,1918.

      Hardeman, Jones, Park & Johnston, Harry S. Strozier, for plaintiff in error, cited:
    American Nat. Bank v. Commercial Nat. Bank, 254 Fed. 249; Bouv. L. Diet. (Rawle’s ed. 1914), “Consolidate,” p. 620; “Merger” (of corporations), p. 2202; 5 Thomp. Corp., §§ 6040, 6038, 6044; Noyes, Intercorporate Relations, §§ 13, 17; L. & N. R. Co. v. Hughes, 134 Ga. 75 (1, 2); Hawkins v. Gen. Ry. Co., 119 Co,. 159, 163; Pratt’s Dig. (1917), 523; Payne v. Continental Trust Co. (similar contract), 18 Ga. App. 59; U. S. Rev. Stat., §§ 5151-2; Shepard v. Bridges, 137 Ga. 615 (1); Union City Realty Co. v. Wright, 138 Ga. 703 (4).

      Hall & Grice, contra, cited:
    U. S. Rev. Stat., § 5223; American Nat. Bank v. Commercial Nat. Bank, 246 Fed. 721; A., B. & A. Ry. Co. v. Johnson, 127 Ga. 392 (2) (11 L. R. A., N. S., 1119, and notes, 1120, 1131); Tompkins v. Augusta Southern R. Co., 102 Ga. 436, 443; Hawkins v. Gen. Ry. Co., 119 Ga. 159, 163; A., B. & A. R. Co. v. Atlantic Goast Line R. Co., 138 Ga. 353; 3 Purdy’s Beach, Priv. Corp. 1287, 1886, and cit.; Shadford Detroit &c. Ry., 130 Mich. 300 (89 N. W. 960); Upton v. Tribilcock, 91 U. S. 47; 1 Thomp. Corp. § 372; 10 Cyc. 308, 309; Smith v. Los Angeles &c. R. C., 98 Cal. 210 (33 Pac. 53); State v. Baltimore &c. R. Co., 77 Md. 489 (26 Atl. 865); In re Utica Nat. Brewing Co., 154 N. Y. 268 (48 N. E. 268); Broughton v. Pensacola, 93 U. S. 268; New Orleans v. Clark, 95 U. S. 654; Walker v. Rome, 6 Ga. App. 59 (4), 63, 64; Shepard v. Bridges, Union City Realty Co. v. Wright, Payne v. Continental Trust Co., supra, distinguished.
   Broylés, P. J.

W. T. Anderson brought suit jointly against the American National Bank of Macon -and the Commercial National Bank of Macon, Georgia, for the recovery of an amount alleged to be due him for services rendered both banks as a- member of the liquidating committee of the Commercial Bank, in assisting the American Bank to reduce to cash certain assets of the Commercial Bank which had been transferred to and taken over by the American Bank. The theory upon which the petition was drawn was, that under a certain written contract (a copy, of which was attached as an exhibit-to the petition), entered into between the two banks on August 11, 1914, a consolidation or merger of these banks resulted, and that the surviving bank—the American National Bank—was liable for the debts of the absorbed bank,—the Commercial; and especially, as in this case, for services rendered upon the request of both banks, although the services were performed under employment by the absorbed bank. As the petition is drawn, there can be no recovery against the American Bank unless there was a consolidation or merger of the two banks; and this question depends upon the proper construction of the contract of August 11, 1914. That contract was as follows:

“ Georgia, Bibb County.

“Articles of agreement for the liquidation of the Commercial National Bank of Macon, Georgia, by the American National Bank of Macon, Georgia, both being national banking associations, made and entered into between said banks as the contracting parties.

“Whereas, on the 1st day of August, 1914, the board of directors of the Commercial National Bank, at a meeting of said board duly and regularly called, adopted a resolution which authorized the officers of said association to commence proceedings for the liquidation of said association under section 5220 and 5223 of the II. S. Bevised Statutes, for consolidation with said American National Bank, and to transfer to said American National Bank all the assets of said Commercial National Bank, which assets were by said resolution so transferred and assigned, in order to fully protect and secure said American National Bank for all moneys advanced or to be advanced by said association in the assumption and payment of the liabilities of said Commercial National Bank shown by a list of said liabilities hereto attached and identified as Exhibit A, and by the signature of the parties hereto, and which said resolution further provided that said American National Bank should take over the business' of said Commercial National Bank, liquidate said assets, and account to the shareholders of said Commercial National Bank for any overplus which might remain after paying the depositors and other indebtedness of said Commercial National Bank in full, and the expense of realizing on the assets so transferred, the said American National Bank to charge nothing for its services in so doing, and which resolution further authorized and directed the officers of said Commercial National Bank to make such contract with the American National Bank as might be necessary or appropriaté in order to carry out the general purposes of said resolution, the details of said contract to be left to the discretion of saidnofficers; and

“Whereas, on the same date, the board of directors of the American National Bank, at a meeting of said board duly and regularly called, adopted a resolution whereby said American National Bank assumed the payment of said depositors and other liabilities of said Commercial National Bank, shown by the list of liabilities set out in Exhibit A hereto attached and hereinbefore referred -to, upon condition that the assets of said Commercial National .Bank should he transferred to said American National Bank sufficient in amount and in value in the estimation of the officers of the American National Bank to fully protect and secure _ said association for any and all amounts payment of which was assumed under said resolution, and which resolution authorized the officers of said association to make such contract as might be necessary to carry out the purposes of said resolution, the details to be left to the discretion of said officers; and

“Whereas, the' preliminaries and conditions in said resolution mentioned have been complied with, and the assets of the Commercial National Bank have been delivered to said American National Bank;

“Now, therefore; these articles of agreement witness:

“I. That said Commercial National Bank has transferred, assigned, conveyed, and confirmed, and does by these presents transfer, assign, convey, and confirm unto the American National Bank of Macon, Georgia, its successors and assigns all of the assets of every kind and description, including cash and cash items on hand at the close of business on August 1, 1914, bills receivable, bonds, real estate, and personal property, and interest therein, and choses' in action of all -kinds, including all the United States bonds now on deposit with the treasurer of the United States as security for the circulation of the Commercial National Bank of Macon and for deposits of United States deposits, to have and to hold the same unto it, the said American National Bank of Macon, its successors and assigns, in- fee simple forever; and the title to said assets and each and all thereof said the Commercial National Bank of Macon, for itself and its successors, hereby warrants unto said the American National Bank, its -successors and assigns, against the claims of all persons whatsoever.

“II. That in contemplation of the liquidation of said Commercial National' Bank under sections 5220, 5221, and 5223, U. S. Bevised Statutes, said Commercial National Bank, by its officers and directors, will call a meeting o£ the shareholders of said association to be held at Macon, Georgia, on August 12, 1914, and on the date or dates to which said meeting may be from time to time adjourned, and will procure proper resolutions by said shareholders and a sufficient majority thereof to comply with the law in such cases made and provided, liquidating said association and consolidating same with the American National Bank of Macon by the purchase of the assets of said Commercial National Bank by the .American National Bank, but without providing for stock in the American National Bank to be issued to the shareholders of the Commercial National Bank, and ratifying and confirming the action of the Board of Directors of said Commercial National Bank as herein recited, and ratifying and confirming this contract.

“III. That said Commercial National Bank will also procure proper resolutions to be passed by said shareholders, appointing said American National Bank as liquidating agent for said Commercial National Bank in said liquidating for consolidation as aforesaid, said liquidation to be conducted in accordance with law and under the supervision of the board of directors of said Commercial National Bank.

“IV. That said Commercial National Bank, until the final liquidation of its affairs and final settlement with its shareholders, agrees to maintain its corporate existence, and that its directors and officers will at all times when called upon so to do by said American National Bank execute and deliver in the name of said association all other and further writings of all kinds which may be necessary to fully effectuate the transfer of said assets, the liquidation of said association, and this contract.

“V. That in consideration of the foregoing acts and agreements by the Commercial National Bank, said American National Bank hereby agrees that it will, and it does hereby, assume and promise tó pay the same when and as the same are presented for payment, the depositors and other liabilities of said Commercial National Bank of Macon shown in Exhibit A hereto attached, and that in addition thereto it will and does hereby assume the redemption of the circulating notes of said Commercial National Bank, and that it will procure such resolution to be passed by its board of directors as may be necessary for it to assume the redemption of said circulating notes.

“VI. That said American National Bank will accept the appointment as liquidating agent of said Commercial National Bank, and will proceed with all due and reasonable diligence to liquidate said association and to collect and reduce to cash all the assets of said association, all of said assets to be held as security by said American National Bank for all advances made by it in paying the depositors and other liabilities of said Commercial National Bank and the actual expenses incurred by said American National Bank in realizing on said assets, and that after deducting from the proceeds of said assets the actual expenses incurred by said American National Bank in liquidating said association and acting as liquidating agent and in collecting said assets and realizing upon the same, it will- apply said proceeds, first, in repaying to itself all amounts advanced by it hereunder, with interest thereon at the rate of seven (7%) per annum; next, in discharging the liabilities of, said Commercial National Bank which shall not have been paid by advances made by said American National Bank, and that when all of said liabilities have been fully [dis] charged it will account to the shareholders of said Commercial National Bank and from time to time pay over to said shareholders pro rata of the surplus remaining in its hands from the proceeds of said assets, said American National Bank to act as such liquidating agent without compensation for its own services.

- “It being distinctly agreed and understood that in the event the said liquidating should be interrupted or discontinued for any reason beyond the control of said American National Bank, then and in that event said American National Bank shall and does hold all the assets of said Commercial National Bank as security for the advances which may have been made by it, up to the time such liquidation may be so discontinued.

“And it being further agreed and understood that neither the resolutions of said boards of directors óf said associations nor this contract shall relieve the shareholders of the Commercial National Bank from their legal liabilities as shareholders to respond, in the event it may be necessary to have recourse upon such shareholders’ liability, for any deficit which may remain after exhausting the other assets of said association in the payment of its liabilities.

“In witness whereof the parties hereto have caused these presents to be signed and delivered in duplicate by their proper corporate officers, and their corporate seals to be hereto affixed this 11th day of August 1914.”

The liability sued on in this case was not included in the list of liabilities set out in Exhibit A.

It is contended by the learned counsel for the defendant in error that this, contract and the performance under it, as set out in the declaration, showed a consolidation or merger of the two banks, and that the contract entered into and performance under it did not result in the creation of the relation of creditor and debtor between them. , As was said by the United States Circuit Court of Appeals, 5th circuit, in passing upon this identical contract in the case of American National Bank of Macon v. Commercial National Bank of Macon, 254 Fed. 249, 256: ’ “Provisions contained in the contract give some color to this contention if. they are considered by themselves without due regard to.the remainder of the contract, the situation with which it dealt, and the conduct of the parties to the contract while performance under it'was in progress evidencing what each of them understood was the effect of a compliance, by the American Bank with the obligations imposed upon it by the contract. The provisions referred to—namely, the one as to the transfer of the assets, the one in regard to liquidating the Commercial Bank .and consolidating it with the American Bank by the purchase by the latter of the assets of the former, and the one in regard .to making one of the banks liquidating agent for the .other—-lose the significance sought to be attributed to them when they are considered in connection with other provisions contained in the contract and in the light of .the situation existing when the contract was made and for some time afterwards, and of the construction of .the contract by both parties to it as disclosed by what was done under it. . . The contract contains expressions and provisions which .do not seem to us to be reconcilable with- the existence of an intention other than that the making by the American Bank of the agreed disbursements in taking care of the liabilities of the Commercial Bank was to have the effect of creating a debt or debts owing by the latter to' the former. . . The concluding provision of the contract was to the effect that neither the contract nor the resolutions authorizing it ‘shall relieve the shareholders of the Commercial National Bank from their legal liabiliity as shareholders to respond, in the event it may be necessary to have recourse upon such shareholders’ liability, for any deficit which may remain after exhausting the other assets of said association in the payment of its liabilities’. It hardly is conceivable that this provision would have been inserted in the absence of an intention that the making by the American Bank of the disbursements it obligated itself to make would result in creating a liability of the Commercial Bank for which the latter’s shareholders would be individually responsible.”

We do not think that the petition as amended showed a consolidation or merger of the two banks. On the contrary, the averments of fact in the petition, when considered in the light of .the contract attached thereto,, showed that the relation of creditor and debtor existed between them; and in this ruling we are, in effect, sustained by the decision cited above, in which the contrary ruling of, Judge Evans of the United States District Court, southern district of Georgia (248 Fed. 187), was reversed.

From what has been said it follows that no cause of action against the American National Bank was set out, and the court .erred in overruling its general demurrer to the petition. .

Judgment reversed.

Bloodworth and Stephens, JJ., concur.


text:
    9637.
    FIRST NATIONAL BANK OF COLQUITT v. MILLER.
    Decided February 18, 1919.
    1. “As courts must take judicial notice of general laws of the United States, defendant’s claim, depending on such a law, that the complaint does not state a cause of action, is properly raised by demurrer.”
    2. Under the national-bank act, cashiers of national banks hold their office subject to dismissal at the pleasure of the board of directors.

      (a) Where the cashier of a national bank is elected for a fixed time, and is dismissed 'prior to the expiration of the period for which he was employed, he can not recover his salary for the unexpired. period, even though dismissed without cause.
    Complaint; from city court of Miller county—Judge Turnipseed presiding. March 12, 1918.
    Miller sued the First National Bank of Colquitt, alleging: that it "is a corporation organized under and by virtue of the laws of the United States;” that the plaintiff was “employed by said bank by and through its board of directors to serve them in the. capacity of cashier for the year 1917, at and for the sum of $85 per month;” that “he served as such cashier and performed all the duties of such cashier as he was employed to do until a few days before June 1, 1917, at which time he was discharged by said bank without any legal cause or right, but that said bank paid your petitioner for services rendered up to June 1, 1917;” that “since June 1, 1917, and up' to October 1, 1917, he has made continuing tender of his services to said bank;” that “during said four months he has been out of employment through no fault of his, but on account of the illegal breaking of the contract by said bank;” that he was thereby damaged in the sum of $340, the value of his services for the said period of four months, and he prayed for judgment for that amount. A general demurrer to the petition was overruled, and the defendant excepted.

      N. L. Stapleton, P. D. Rich, for plaintiff in error.

      B. B. Bush, B. W. Fortson, contra.
   Bloodworth, J.

Defendant in error insists that the question at issue should have been raised by special plea and not by demurrer. This contention is without merit. In Case v. First National Bank, where practically the same question was at issue, the first headnote of the decision as reported in 109 N. Y. Supp. 119, is as follows: “As courts must take judicial notice of general laws of the United States, defendant’s claim, depending on such a law, that the complaint does not state a cause of action, is properly raised by demurrer.”

Under the pleadings in this case, the question to be determined is whether a cashier of a national bank who is employed for a year and discharged before the expiration thereof can recover his salary from the date of his discharge to the end of the year, or until he obtains employment prior thereto? The determination of this question turns upon the construction of the section of the United States Revised Statutes which, in enumerating the powers of a national bank, says: “Fifth. To elect or appoint directors, and by its board of directors to appoint a president, vice-president, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, dismiss such officers or any of them at pleasure, and appoint others to fill their places.” Act June 3, 1864, 13 Stat. c. 106, p. 101,• § 8; Rev. St. U. S. § 5136, p. 999 (U. S. Comp. St. 1901, pp. 3455, 3456, U. S. Comp. St. § 9661). From this section it is clear that a cashier of a national bank is an “officer” thereof. In Harrington v. First National Bank of Chittenango, 1 Thompson & Cook (N. Y. Supreme Court), 361, the headnote says: “A national bank cannot hire one of its officers for a specified time.” In Westervelt v. Mohrenstecher, 76 Fed. 118 (22 C. C. A. 93, 34 L. R. A. 477), the 1st and 2nd headnotes are as follows: “The office of cashier of a national bank is not an annual office, but the term of the incumbent continues until he resigns or until he is removed or a successor is appointed by the board of directors of the bank. Since the national bank act expressly provides that the cashier of a national bank shall hold his office subject to the pleasure of the board of directors, a by-law providing that a cashier shall hold his office for one year, and shall be elected annually, is nugatory, as is a reappointment in accordance with such by-law at the beginning of each year.” In the decision in that cáse Sanborn, Circuit Judge, said: “The act of congress under which this bank was organized provided .that its board of directors might appoint a cashier, require bonds of him, and fix the penalty thereof, and dismiss him at pleasure, and appoint another to fill his place. Its articles of association provided that the board might appoint a cashier, fix his salary, and continue him in office, or dismiss him, as in the opinion of a majority of the board the interests of the association might require. It is plain that, in the absence of any other regulations, a cashier once appointed under this act of congress and these articles of association would hol,d his office until he resigned, or until the board of directors dismissed him. A subsequent appointment of the same man to the same office would have no more effect upon him, or upon the term of his office, than a second deed to the same property by one who had already conveyed if to the same grantee would have. The only act of the board of directors that could affect the tenure of his office, under the act of Congress, would be his dismissal. It is, however, contended - that the by-laws (which provided that the cashier should be elected at the annual meeting in January in each year, should give a bond in the sum of $10,000, and should hold his office for one year, and until his successor was elected and qualified) made this an annual office, and limited the term of the office of this cashier to the unexpired portion of the year for which Ms predecessor, Vieths; was elected. But how could the by-laws of tMs bank repeal or modify the act of congress and the articles of association under which they were enacted? The act of congress expressly fixed the.tenure of office of the cashier of this bank. It expressly provided that the board of directors might dismiss' the cashier and certain other officers k>r any of them at pleasure'and appoint others to fill their places/ It provided that this cashier should always hold his office subject to instantaneous removal at the pleasure of the board of directors. Nor is it at all probable that this provision of the national bank act was inserted without purpose or consideration. Observation and experience alike teach that it is essential to the safety and prosperity of banking institutions that the active officers, to whose integrity and discretion the moneys and property of the bank and its customers are intrusted, should be subject to immediate removal whenever the suspicion of faithlessness or negligence attaches to them. High credit is indispensable to the success and prosperity of a bank. Without it, customers cannot be induced to deposit their moneys. When it has once been secured, and then declines, those who have deposited demand -their cash, the income of the bank'dwindles, and often bankruptcy follows. It sometimes happens that, without any justification, a suspicion of dishonesty or carelessness attaches to a cashier or a president of a bank, spreads through the community in which he lives, scares the depositors, and threatens immediate financial ruin to the ■■institution. In such a case it is necessary to the prosperity and success—to the very existence—of a banking institution that'the board of directors should have power to remove such an officer, and to put in his place another, in whom the community has confidence. In our opinion, the provision of the act of congress to which we have referred was inserted, ex industria, to provide for this very contingency. In any event, it is there, and it' clearly provides that the cashier of a national bank may be dismissed at the pleasure of the board of directors, and that it may appoint, not the same man again, but another in his place. National banks are the creatures of the act of congress. Under familiar principles, they have no powers beyond those expressly granted, and those fairly incidental thereto. The Omaha Bridge Cases, 10 U. S. App. 98, 174, 2 C. C. A. 174, 51 Fed. 309; Union Pac. Ry. Co. v. Chicago, R. I. & P. Ry. Co., 2 C. C. A. 174, 230, 51 Fed. 309, 316. It follows from this principle that, since the act of congress expressly provides that' the cashiers of national banks should hold their offices subject to the pleasure of the board of directors, neither the bank nor its board can make time contracts or appointments in violation of that provision. Harrington v. Bank, 1 Thomp. & C. 361; Boone, Bank-, ing, §'353; Ball, Banks, 65. What, then, is the.effect of these established rules upon the by-laws of this bank? It is that that part of these by-laws which provides that the cashier shall hold his office for one year, and that he shall be elected annually, must fall, and the cashier of the bank must hold his office under "the act of congress, subject to immediate removal at the pleasure of the board of directors, until he resigns or is removed.” In the above quotation it is distinctly stated that “It is plain that, in the absence of any other regulations, a cashier once appointed under this act of congress and these articles of association would hold his office until he resigned, or. until the board of directors of the bank dismissed him. . . The only act of the board of directors that could effect the tenure of his office, under the act of congress, wnuld be dismissal. . . But how could the by-laws of this bank repeal or modify the act of congress, and the articles of association under which they were enacted? The act of congress expressly fixed the tenure of office of the cashier of this bank. It expressly provided that the board of directors might dismiss the cashier and certain other officers ‘or any of them at" pleasure and appoint others to fill their places/ It provided that this cashier should always hold his office subject to instantaneous removal at the pleasure of the hoard of directors.” (Italics ours.)

The first headnote in London v. City of Franklin, 118 Ky. 105 (80 S. W. 514), is as follows: “Ky. St., 1903, sec. 3.619, providing that the marshal and certain other city, officers shall be appointed for a term of two years by the city council, but may be removed at the pleasure of the city council, does not limit the power of such council to removals for cause only.” In the opinion of the court, which was written by Judge Hobson, is the following: “It is insisted for appellant that under the constitutional provision officers of cities and towns may be only removed for cause, and that section 3619 of the statute, above quoted, must be construed to refer only to removals for cause, or, if not so construed, is'unconstitutional. The language of the -statute is that the officers named may be removed at the pleasure of the city council: These words have a well defined legal meaning. The right to remove at pleasure is an entirely different thing from the right to remove for cause. To hold that the statute only authorizes the council to remove for cause would he to deny the words used by the legislature their ordinary meaning. This can not be done.” See also Rogers v. Congleton (Ky), 84 S. W. 521; Stebbins v. Police Commissioners, 196 Mass. 365 (82 N E. 42); Commonwealth v. McGann, 213 Mass. 213 (100 N. E. 855).

Applying the principles announced in the foregoing cases, it is apparent that the national banking law gives to' the directors of national banks the authority “at pleasure” and without cause to dismiss cashiers and other officers, and all resolutions and by-laws of the directors in conflict with this law are void. There is no conflict in the decisions above referred to and the decision in Rankin v. Tygard, 198 Eed. 795 (119 C. C. A. 591). In the opinion in that ease Sanborn, Circuit Judge, said (p. 799): “An election or appointment to an official position for a fixed term is, it is true, inconsistent with a removal during the term without cause in the absence of a precedent reservation of the right to make such a removal during the term. But an election or appointment to the office for a specified time subject to the precedent expressed .condition that the elective or appointive power may remove at will at any time during the term is consistent with such a removal without cause, and it is as much an election or appointment for a legal term as an election or appointment without such a reservation. It is an election or appointment for a fixed term subject to recall, and the legal term is the time the person elected or appointed will hold his office if the power to recall is not exercised.” Indeed, instead of being in conflict with the decisions referred to above, it supports them and is in thorough accord with what is decided in the instant ease. The board of directors of the First National Bank of Colquitt having no authority to employ a cashier for any fixed term, and the law providing that they could dismiss the cashier “at pleasure,” the petition set out no cause of action, and the court erred in overruling the demurrer thereto.

Judgment reversed.

Broyles, P. J., and Stephens, J., concur.


author: Blood worth, J.

text:
    9714.
    GEORGIA CASUALTY COMPANY v. DIXIE TRUST & SECURITY COMPANY et al.

    Decided February 18, 1919.
    1. Under the allegations in the pleadings, the city court of Macon had no jurisdiction of the Dixie Trust & Security Company in this ease.
    2. The contract signed by Wilson was one of guaranty, and a guarantor can not be sued jointly with the principal debtor.
    3. As a general rule the consideration of a contract is open to inquiry as between the original parties, but “if the consideration be so stated in the contract as to make it one of its terms or conditions, as where the consideration consists of mutual promises expressed in the contract, a different consideration, whether variant or additional, can not be shown by parol.”
    Complaint; from city court of Macon—Judge Guerry. March. 22, 1918.

      P. F. Brock, for plaintiff.

      Hardeman, Jones, Park & Johnston, Bichard Curd, for defendants.
   Blood worth, J.

The brief of counsel for defendants in error is such a clear and fair presentation of the issues involved in this case, and so fully in accord with- our opinion of the principles of law involved, that we adopt it almost in its entirety as our opinion in the case.

The Dixie Trust & Security Company issued two certificates of deposit, dated February 26, 1915. These certificates were signed by the trust company through two of its officers alone. No other party appeared as joint maker, security, indorser, or otherwise thereon. The company was chartered in Crisp county, and had its principal office and place of place of business in that county. Subsequently, on March 1, 1915, E. L. Wilson executed a contract wherein he agreed to indorse these certificates and to guarantee the Georgia Casualty Company against loss thereon. This contract was 'signed by Wilson alone. • The trust company was not a party thereto in any way, and, so far as shown on the face of the contract, was not interested therein beneficially or otherwise. Wilson was a resident of Bibb county, Georgia. The Georgia Casualty Company, the holder of these certificates, sued the trust company and Wilson jointly, in the city court of Macon, for their full face value with interest, attaching copies of the certificates and contract to the petition. The trust company demurred to the petition, on the ground that it affirmatively appeared that the court was without jurisdiction as to it. Wilson demurred, on the grounds,: that it affirmatively appeared that he was a guarantor against loss only; that he was, not a party to the certificates nor liable thereon, and could not be sued jointly with the trust company; and that he could not be sued individually on the contract of indemnity until it was shown that the holder had been unable to recover from the maker of the certificates. On the hearing the plaintiff filed an amendment, which was allowed, alleging that .the consideration for the contract exe- ■ cuted by Wilson was extension of time and indulgence granted by the plaintiff to the trust company and another upon these certificates and other indebtedness, and that it was the intention of the parties that Wilson should become surety for said debts. This amendment was demurred to on the ground that it was an attempt to vary the plain terms of the contract set forth, was directly contradictory thereof, and that the same could not be changed or varied by any alleged intention of the parties. The court sustained the demurrer of the trust company and.also sustained the demurrer of E. L. Wilson to the original petition and to the petition as amended, and dismissed the entire ease. The correctness of the court’s rulings upon all of the demurrers depends primarily upon the terms of the contract between plaintiff and Wilson. The material portions thereof are: “Whereas the Georgia Casualty Company has on deposit with the Farmers State Bank the sum of $7,710.00, . . . and also holds the following certificate of deposit issued by said bank: . . Now, therefore, in consideration of $5.00, . . the said E. L. Wilson hereby agrees to endorse the above-named ■ certificates as well as the other two certificates of deposit held-by the Georgia Casualty Company and issued by the Dixie Trust and. Security Cumpany, . ,. and to likewise endorse any renewals or extensions of the above-named certificates of deposit. And for the consideration aforesaid the said E. L. Wilson does also guarantee the said Georgia. Casualty Company against loss on. account of the ab.ovemamed certificates of deposit . . or the above-mentioned deposit with the Farmers State Bank, and guarantees to the said Georgia Casualty Company the faithful payment of all amounts due or owing by said Farmers State Bank to the Georgia Casualty Company.”

1. After fixing the venue of divorce cases, land cases, and equity cases, the constitution of Georgia provides: “Suits against joint obligors, joint promisors, copartners, or joint trespassers, residing in different counties, may be tried in either county.” Civil .Code (1910), § 6541. “Suits against the maker and indorser of promissory notes, or drawer, acceptor, and indorser of inland bills of exchange, or like instruments, residing in different counties, shall be brought in the county where the maker or acceptor resides.” Civil Code (1910), § 6542. “All other civil cases shall be tried in the county where the defendant resides.” Civil Code (1910), § 6543. It is not contended that Wilson was a joint maker. He was not an indorser in the technical sense. If he had been, a joint suit could only be maintained in Crisp county. If a guarantor, there could be no joint suit in either county. Each party would have to be sued independently in the county of his residence. Musgrove v. Luther Publishing Co., 5 Ga. App. 279 (63 S. E. 52); Manry v. Waxelbaum Co., 108 Ga. 14 (33 S. E. 701; Renfroe v. Shuman, 94 Ga. 153 (21 S. E. 373); Sims v. Clark, 91 Ga. 302 (18 S. E. 158). Was he a surety? There is no connection whatever on the certificates of deposit themselves, either on their face or elsewhere, between the trust company and Wilson. They are promises to pay by the trust company alone, independently of any one else, and the company is not a party to any other agreement, by any other persons, relating to them. The difference between the contract of surety and guarantor is thus stated: “ ‘A surety and guarantor have thid in common, that they are both bound for another person; yet there are points of difference between them which should be carefully noted. A surety is usually bound with his principal by the same instrument, executed at the .same time and on .the same consideration. He is an original promisor and debtor from the beginning, and is held ordinarily to every known default of his principal. . . On the other hand, the contract of guarantor is his own separate undertaking, in which the principal does not join. It is usually entered into before or after that of the principal and is often founded on a separate consideration from that supporting the contract of the principal. The original contract of the principal is not the guarantor’s contract, and the guarantor is not bound to take notice of its non-performance.’ 1 Brandt on Suretyship (3d ed.) § 2. The surety joins in the same promise as his principal and is primarily liable; the guarantor makes a separate and individual promise, and is only secondarily liable. His liability is contingent on the default of his principal, and he only becomes absolutely liable when such default takes place and he is notified thereof. 20 Cyc. 1400 et seq.; Childs on Suretyship and Guaranty 7.” Musgrove v. Luther Publishing Co., supra. The distinction is thus stated in a decision of our Supreme Court: “One difference is pointed - out by our code. It says that a contract of 'suretyship ‘differs from a guaranty in this, that the consideration of the latter is a benefit flowing to the guarantor/ Civil Code [1895], § 2966 [1910, § 3538]. : . In brief, we understand the difference to be this: A surety binds himself to perform if the principal does not, without regard to his ability to do so. His contract is' equally absolute with that of his principal. They may be sued in the same action, and judgment may be entered up against both. A guarantor, on the other hand, does not contract that the principal will pay, but simply that he is able to do so; in other words, a guarantor warrants nothing but the solvency of the principal. Before an action can be maintained against a guarantor, therefore, it must be shown that the principal is unable to perform. The surety says to the creditor, if your debtor will not pay, I will pay. The guarantor says to him, proceed first against the principal, and if he should not be able to pay, then you may proceed against me. It has been said that there is no instance in the books of a guarantor contracting jointly with his principal. Much has been written upon this 'subject, but we think the above expresses the true distinction' between the two classes of contracts.” Manry v. Waxelbaum Co., supra. Measured by the rules laid down in the decisions cited, whatever may be the particular nature of the obligation entered into by Wilson, it was not that of a surety. The obligations were evidenced by different instruments executed at different times and upon different considerations. Wilson was not a debtor from the beginning, and has at no time ever been primarily liable upon the certificates. Under no view of the transaction could the city court of Macon have had jurisdiction of the trust company.

2. By the terms of the writing signed by Wilson, the Casualty Company bound itself to nothing. Wilson agreed to three things: (a) To indorse all-the certificates of deposit, (b) To guarantee the Georgia Casualty Company “against loss on account of the above-named certificates of deposit,” or the deposit with the Farmers State Bank, (c) To guarantee to the Georgia Casualty'Company the faithful payment of all amounts due or owing by said Farmers State Bank to Georgia Casualty Company. (1) Wilson merely agreed to indorse; he did not indorse and is not sued as indorser. He could not be held as indorser upon a mere promise to indorse. He might be sued for breach of his agreement, but then the plaintiff could only recover by showing loss. National Bank v. Leonard, 91 Ga. 805 (18 S. E. 32); Birdsell v. Brown, 96 Mich. 213 (55 N. W. 806); 1 Dan. Neg. Inst. (6th ed.) § 689. If one agrees to give, a-note, can a suit be brought against him on the note which he fails to give? See Adams v. Williams, 125 Ga. 430 (54 S. E. 99). (a) An indorsement may always be explained. Civil Code (1910), § 5796. If Wilson had indorsed the certificates, what kind of indorsement would he have placed thereon? The contract answers the question. He was to indorse on ¿he Farmers State Bank certificates a guaranty to faithfully pay.' He was to indorse on the Dixie Trust Company certificates a guarantee against loss. Otherwise, why did not the contract stop with a simple agreement to indorse?' (5) Hnder the authorities quoted from in the first division of this opinion Wilson was a guarantor. Hnder the terms of the specific contract in question here, his guaranty was against any loss on the Dixie Trust Company certificate. This was an agreement to indemnify only. “A guaranty of a note is a covenant to pay it, breached by failure of the note’s maker to do so; while an indemnitor’s covenant is only to make good any loss from non-payment.” Eckhart v. Heier, 37 S. D. 382 (158 N. W. 403). “So, in general, there is a well-settled distinction between an agreement to indemnify and an agreement to pay, or a covenant to do a certain act. In the latter ease a recovery may be had as soon as there is a breach 'of the contract, whereas in the ease of a covenant of indemnity strictly, — that is of an indemnity against loss,—no right of action accrues until the indemnitee has suffered a loss against which the covenant runs.” 14 Ruling Case Law, 44. See also Wicker v. Hoppock, 6 Wall. 94, 99 (18 L. ed. 752, 753); Wilson v. Stillwell, 9 Ohio St. 467 (75 Am. D. 477); Henderson v. Shillito, 64 Ohio St. 236 (60 N. E. 295, 298, 82 Am. St. R. 745); Bain v. Arthur, 129 La. 143 (55 So. 743); Poe v. Philadelphia Gas Co., 118 Md. 347 (84 Atl. 476). “A guaranty of collection or a guaranty against loss as the ■result of the failure to collect a debt places upon the one for whose benefit the guaranty is made the duty of making a reasonable effort to collect the debt from the principal debtor; and a canse of action does not accrue thereon until after such effort has been made and proved unavailing. There is no right of action upon such contingent liability immediately upon the failure-of the principal to perform.” Burton v. Dewey, 4 Kan. 592 (46 Pac. 325). See also Allen v. Bundle, 50 Conn. 9 (47 Am. R. 599); Allison v. Waldham, 24 Ill. 132; Bosman v. Akeley, 39 Mich. 710 (33 Am. R. 447); Osborne v. Thompson, 36 Minn. 528 (33 N. W. 1); Northern Ins. Co. v. Wright, 76 N. Y. 445; Woods v. Sherman, 71 Pa. St. 100 (2); Evans v. Bell, 45 Tex.553; Day v. Elmore, 4 Wis. 190; Parker v. Culvertson, 18 Fed. Cas. 1122, No. 10732. Inasmuch as there has been no effort (prior to the present suit in a court without jurisdiction) to collect from the Dixie Trust Company, and that company is not even alleged to be insolvent, the liability contracted for' has not arisen. The.contract of guaranty is stricti juris, and the guarantor may stand upon the precise terms of his contract. Williams Valve Co. v. Amorous, 19 Ga. App. 155 (1, 5) (91 S. E. 240). (3) The language-used evidences a clear intention to guarantee against loss only on the Dixie Trust & Security Company certificates. Wilson, therefore, was not subject to a suit upon his undertaking until efforts to collect out of the trust company were exhausted or some reason was shown why such efforts would prove fruitless.

3. No relation between Wilson and the trust company is mentioned in the writing. The sole consideration therefor recited in the agreement was the payment of five dollars. If this was not paid, then there was no consideration flowing from the casualty company for the contract. It neither did anything nor agreed to do anything. While the consideration of a contract may be inquired into, an executory consideration different from that expressed in the contract cannot be proved. It does not appear how any agreement to extend the time for payment of the Farmers State Bank certificates could have been of any benefit to the Dixie Trust Company or could have furnished any consideration for Wilson’s agreement to indorse or guarantee the trust company’s certificates. But even if so, and if the alleged- extension of time on the trust company’s certificates constituted a consideration for Wilson’s agreement, this could not be shown by parol, to vary or add to the writing. Smith v. Newton, 59 Ga. 113 (5); Atkinson v. Lanier, 69 Ga. 460 (2); Burke v. Napier, 106 Ga. 329 (32 S. E. 134); Wellmaker v. Wheatley, 123 Ga. 203 (2) (51 S. E. 436); Codlwell Co. v. Cowart, 138 Ga. 236 (75 S. E. 425); Brosseau v. Jacobs’ Pharmacy Co., 147 Ga. .189 (93 S. E. 293); Kehoe v. Southern Paving Co., 7 Ga. App. 236 (66 S. E. 547). In no event could it have changed the contract from one of guaranty to one of suretyship, in the face of the specific provisions to the contrary in the agreement itself. The demurrers, including the demurrer to the petition as amended,, should have, been sustained and the case dismissed as to all parties, and the court was clearly right in so doing. See Adams v. Williams, •supra.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.