author: 'Jenkins, J.

text:
    9501.
    SCOTT v. WARD, sheriff.
    The contract entered into by the plaintiff, whereby another was substituted as debtor in place of the sheriff, amounted in itself to an abrogation of the demand against the sheriff. The foundation of the rule absolute being the contempt of the court on the part of the sheriff by his failure to pbey its order, and it having been made to appear that the officer was not really liable, but had been thus relieved by l1’-' plaintiff from complying with the court’s order, there was no error in refusing to make the rule absolute.
    Decided October 16, 1918.
    Eule against sheriff; from Crisp superior court—E. F. Strozier, judge pro hac vice. November 20, 1917.

      In the petition of W. E. Scott for a rule against J. H. Ward, sheriff, it is alleged: that in the' case of B. 0. Willis et al. v. J.'H. Ward, sheriff, which was a rule to distribute money, the answer of the sheriff stated that the property levied on was'sold for $765; that at the hearing of that proceeding, on June 21, 1915, the court ordered the sheriff to pay to plaintiff, Scott, $333.43; that the sheriff caused to be paid over to J. T. Hill, attorney for plaintiff, $166.71, leaving a balance due plaintiff of $166.72, which has never been paid to him or to his attorney by the sheriff, and that he is entitled to have said Ward, sheriff, pay to him that sum with interest at 7 per cent, per annum from June 21; 1915. The petition shows that at the time the partial payment was made, the plaintiff’s attorney entered into a written agreement with the Byrom Corporation, through its attorneys, that the balance be held in statu quo pending an agreement between it and the plaintiff upon certain indebtedness which it claimed against the plaintiff; and it is alleged he is not indebted to Byrom Corporation in any sum whatever, and that therefore he and the said corporation have failed to make any agreement with, reference to any claim of indebtedness made by it against him. He alleges that he has made demand upon the sheriff for payment, and that the- sheriff fails and refuses to malm such payment.
    The sheriff, in' his answer, sets up the agreement referred to by the plaintiff, and claims thereby to have been absolved from liability to the plaintiff under the order of the court. This agreement was as follows:
    “Georgia, Crisp County. Whereas, upon a rule to distribute money in Crisp superior court at the May term, 1915, it has been adjudged by the court that W. E. Scott is entitled to recover of Todd Brothers, upon the foreclosure of a laborer’s lien, the sum*'of $333.43 as principal and interest, and that the pro rata share of the funds in the hands of the sheriff of Crisp county for distribution will pay to the said W. E. Scott the sum of $324.73 of such amount as principal and interest; and whereas the Byrom Corporation became the purchasers of a portion of the property sold, belonging to Todd Brothers, such purchase price being part of the money to be distributed, and which as yet has not been paid into the hands of the sheriff by the said Byrom Corporation, the said Byrom Corporation being due the sheriff of said county the sum of $675.00, less certain costs already paid by the said Byrom Corporation; and whereas the said Byrom Corporation has a claim of indebtedness against said W. E. Scott amounting to something more than $400.00; and whereas the said W. E. Scott, in such laborer’s lien foreclosure proceedings, was represented by J. T. Hill, Esq., attorney at law, who has a conditional fee of 50%. of the amount recovered therein pit is thereupon agreed by counsel for the parties, that the Byrom Corporation shall pay to the said J. T. Hill, Esq., 50% of the amount, to wit, $324.73, so awarded to the .claim of 'W. E. Scott, and that the remainder of such claim shall •be held for future adjustment between the parties; that is to say, W. E. Scott and the Byrom Corporation. The foregoing in duplicate' agreed to, this the 10th day of August 1915.
    J. T. Iiill, attorney for W„ E. Scott.
    Crum & Jones, attorneys for Byrom Corporation.'”
    The case was submitted to the court upon the issues of law and of fact, and the court rendered judgment in favor of the defendant, denying the rule absolute prayed against him.

      A. L. Henson, Hill & Nix, for plaintiff.

      Jones & Bussey, for defendant.
   'Jenkins, J.

(After stating the foregoing facts.) The effect of the agreement entered into between the plaintiff and the Byrom Corporation was to release the sheriff from any liability to the plaintiff for the balance due him under the judgment in the former money-rule proceeding, and also to relieve the Byrom Corporation from the necessity of paying to the sheriff that amount of the purchasé-price of the property purchased by--the said corporation, the plaintiff therein agreeing to adjust the remainder of his claim with the Byrom Corporation and to look to it for the payment thereof. The contention of counsel for plaintiff in error, that the contract introduced'in evidence can not be held to mean that plaintiff agreed to look to the Byrom Corporation for the balance of his lien, but that the sheriff was simply to hold the fund temporarily, pending an adjustment between plaintiff and said corporation, is not well founded, for the contract itself shows that the purchase-price of the property sold by the sheriff and bought in by the corporation had never been paid over to the sheriff, there were no funds in his hands, to be held by him, and the agreement released the corporation from paying the same over to the sheriff, in sc far as this plaintiff was concerned. If, under the terms of the agreement entered into between the parties, the Byrom Corporation had not been relieved from the necessity of paying the funds into the hands of the sheriff, and the funds had in fact been paid over, with the understanding that the sheriff was’ simply to hold them "subject to an adjustment to be made between the parties, then the authorities cited by counsel for plaintiff in error (Civil Code of 1910, § 5348; Strickland v. Smith, 53 Ga. 79; Smith v. Wade, 65 Ga. 753), to the effect that where money is in the hands of an officer he may pay it over to the plaintiff by whose process it was raised, unless other claimants deposit their claims with him, and that notice to retain, unaccompanied by a lien, is insufficient, would be apropos; but under the facts as they appear in the record in this case, the authorities cited are not in point.

In the case of Anderson v. Whitehead, 55 Ga. 277, 278, it was held that “Where creditor and debtor and another person who owes the debtor agree that the latter person shall be substituted for the debtor and the debtor be released . . . , the debt is extinguished as to the debtor, and the third person becomes debtor in his place.” While the defendant, Ward, sheriff, was not a signatory party to the contract in this ease, by the terms of the contract itself the Byrom Corporation was substituted for the sheriff as debtor, and this would of itself be a discharge of the sheriff from liability, whether such discharge was expressly mentioned or not (Ferst v. Bank of Waycross, 111 Ga. 229, 232, 36 S. E. 773); and that such was the intention of the parties is shown by the fact that in pursuance of the agreement one half of the amount adjudged to be due the plaintiff, under the money rule, was actually paid over by the Byrom Corporation and received from it by the plaintiff, and that the remaiiiing portion has never been collected from the Byrom Corporation by the sheriff. As was held in the case of Edenfield v. Canady, 60 Ga. 456, “The substitution of debtor for debtor is not infrequent, and there is a place for it in the law. The undertaking in such case is not collateral, but original, and performance may be enforced as between the new parties, no matter what equities may have existed. See also Brown v. Harris, 20 Ga. 403; Dever v. Akin, 40 Ga. 433.

The contention that the plaintiff is not bound by the contract, because it was entered into by his attorney without authority to make it, is without merit, since the plaintiff sets up in his petition that the contract was in fact made, and nowhere does he seek to repudiate it.

The foundation of a rule absolute is the contempt of the court in the failure of the sheriff to obey its order; and it being made to appear by the contract entered into between the parties in this case that the sheriff was not really liable, but had thereby been released and absolved from any duty or liability to the plaintiff under the order of the court, the court properly refused to make the rule absolute. Holcombe v. Dupree, 50 Ga. 335.

Judgment affirmed.

Wade, G. J., and Luhe, J., concur.


source: Caselaw Access Project

author: Ltjke, J.

license: Public Domain

text:
    9520.
    Vaughn-Carlton Company v. Studebaker Corporation of America.
    Decided October 16, 1918.
    Trover; from Colquitt superior court—Judge Thomas. January 23, 1918.
    In this action the Studebaker Corporation of America sought to recover certain wagons which it had sold to the defendant and to which, the plaintiff contended, title was retained in it by the contract of sale. The trial judge directed a verdict in favor of the defendant, but granted a new trial, and the defendant excepted. In the judgment on the motion for a new trial it is stated that a new trial is granted “not in the exercise of the discretion of the court, but because, as a matter of law, the plaintiff is, under the evidence, entitled to recover the property sued for.”
   Ltjke, J.

The appointment of a^ receiver by a bankruptcy court does not oust the bankrupt of title to his property seized by the receiver; and where property is sold under a contract by which title is retained in the vendor until payment of the pux-chase-money, the vendor’s title is not lost by seizure of the property by a receiver in bankruptcy of the vendee.

(a) A composition by the bankrupt with creditors as provided by the bankruptcy act, made before he is adjudicated a bankx-upt, and before the election of a trustee, does not have the effect of ousting the title retained under such a contract, unless the holder of the title so retained becomes a party to the composition and accepts its terms.

(b) Refusal of the petition in bankruptcy upon such a composition has the effect of discharging the receiver and placing possession of the property back into the alleged bankrupt.

(c) When the property is so redelivered, the holder of such title, upon ■proofs that he has not become a party to the composition, has the same legal rights open to him as if there had been no bankruptcy proceeding.

(d) The paper introduced by the plaintiff was, as between the parties, an effective retention of title of the property sued for. It was not error to grant the motion for a new trial.

Judgment affirmed.

Wade, O. J., and Jenkins, J., concur.

One of the contentions of the defendant was that the paper relied on by the plaintiff as reserving title in the vendor was not effectual for that purpose. On the face of the paper was an order for the wagons, signed on the part of the purchaser, and preceded by the words: “Enter our order subject to terms and conditions on back hereof.” One of the conditions printed on the back was that title to the “goods delivered” under the order should remain in the vendor until full payment of the purchase-price. The name signed to the order was followed by the name of the salesman. There was no other signature on the paper, and it was not recorded. The defendant relied also on certain proceedings' in bankruptcy and a composition with creditors, as a defense to the action. From the evidence it appears that after the delivery of the wagons to the defendant in February, 1917, certain creditors filed a'petition in bankruptcy against the defendant, but it was not adjudicated a bankrupt. A receiver in bankruptcy was appointed, but there was no trustee. A composition with creditors was effected, in pursuance of which the wagons in question were turned back to the defendant by the receiver, under an order of the bankruptcy court. No claim in bankruptcy was filed by the Studebaker Corporation of America. ;

Shipp & Kline, for plaintiff in error, cited:

As to reservation of title: Park’s Ann. Code, § 3318; Merchants &c. Bank v. Cottrell, 96 Ga. 168 (2); General Fire Extinguisher Co. v. Lamar, 141 Fed. 353 (2); Wheeler & Wilson Mfg. Co. v. Irish-American Dime Savings Bank, 105 Ga. 57. As to effect of composition: Amendment of 1910 to bankruptcy act; 3 Remington on Bankruptcy (2d ed.), §§ 2346-50, 2354-1/4; Glover Grocery Co. v. Dorne, 116 Ga. 216; Graham v. Richerson, 115 Ga. 1002.

P. Q. Bryan, James L. Dowling, contra, cited:

1 Rem. Bkr. (2d ed.), § 1120, p. 909; 3 Ruling Case Law, 193; In re Winship Co., 120 Fed. 93 (56 C. C. A. 45); Rand v. Iowa Central Ry. Co., 16 Am. Bkr. R. 696-7 (186 N. Y. 58); In re Laplume Condensed Milk Co., 16 Am. Bkr. R. 729-31 (145 Fed. 1013); Gordon v. Mechanics &c. Ins. Co., 22 Am. Bkr. R. 649 (120 La. Ann. 441, 45 So. 384); Johnson v. Collier, 222 U. S. 538 (27 Am. Bkr. R. 454); In re Thomas, 29 Am. Bkr. R. 945; In re Banks, 31 Am. Bkr. R. 270; Marcello v. Concordia Fire Ins. Co., 234 Pa. St. 31 (82 Atl. 1090, 59 L. R. A. (N. S.) 366; Neill v. Barbaree, 135 Ga. 773; Martin v. Commercial Nat. Bank of Macon, 228 Fed. 651 (143 C. C. A. 173; affirmed, U. S. Supreme Ct. Adv. Ops. 1917, p. 201; Graham v. Richerson and Glover Grocery Co. v. Dorne, supra, distinguished.


author: Luke, J.

text:
    9523.
    Coleman v. Lawson.
    Decided October 16, 1918.
    Trover; from Candler superior court—Judge Hardeman. January 1, 1918.

      Kirkland & Kirkland, for plaintiff in error.

      G. G. Bedgood, Arthur W. Jordan, contra.
   Luke, J.

The evidence in this case was conflicting, and it was error for the court to direct a verdict. The jury, under appropriate instructions, should have been permitted to pass upon the issues. Wallace v. Mallary, 117 Ga. 161 (43 S. E. 424).

Judgment reversed.

Wade, G. J., and Jenhins, J., concur.


author: Wade,'C. J.

text:
    9542.
    FARKAS v. WILLIAMS.
    According to the evidence, the sale of the plaintiff’s car to the defendant was not authorized or ratified by the plaintiff, and the plaintiff was entitled 'to recover the car. There was no evidence to support the ver- , diet in favor of the defendant, and the trial judge, erred in overruling the motion for a new trial.
    Decided October 16, 1918.
    Trover; from city court of Thomasville—Judge W. H. Hammond. January 16, 1918.

      Titus, Dekle & Hopkins, for plaintiff in error.

      J. M. Austin, contra. .
   Wade,'C. J.

This is a trover action.instituted by Sigo Farkas to recover one Ford automobile. The case was submitted to a jury, and a verdict was returned in favor of the defendant. The plaintiff’s motion for a new trial was overruled, and he excepted. The case made out by the evidence is substantially as follows: Farkas loaned a certain Ford automobile to MeEachern to make a trip to Camilla, Ga. MeEachern drove the car to Camilla, and later to Thomasville, where he entered into a poker game with C. T. Williams, the defendant, and during the game, and after imbibing too freely of liquor, he sold the car as his own property to Williams for poker-chips aild cash. . After the game MeEachern told Williams that the car did not belong to him but was the property of the plaintiff Farkas, and proposed to rescind the trade, offering Williams, for that purpose, $10 more than had been advanced to'him on the ear. The offer was refused and Williams retained possession of the car. MeEachern then went to Albany, where the plaintiff resided, and told him of the circumstances stated above, whereupon they both boarded the train for Thomasville and demanded the car from Williams, whose refusal to comply with the demand resulted in the bringing of this suit to recover'the car.

The evidence shows clearly that the car sued for was the property of the plaintiff Farkas, and not that of' MeEachern, who sold it to the defendant without the consent or knowledge of the true owner. The plaintiff testified: “I am the owner of the Ford automobile described in the petition, and it is number 1401348. It1 is my property and belongs to me, and I claim title to the same. . , . I never authorized Mr. MeEachern to sell or dispose of my Ford car, now sued for, in any manner or way and have not ratified any of his acts.” MeEachern testified: “The car was not mine, but belonged to Mr. Farkas,” and “Mr. Farkas, the plaintiff in this case, never authorized me at any time to sell the same, or put it up in a poker game. It was his property and I had no right to use it in the manner I did.” The defendant Williams testified: “I cannot swear that this ear did not belong to Mr. Sigo Farkas, but I bought it from Mr. MeEachern, as I thought it was his.” Apparently, and as contended by the defendant, the jury based its verdict on the idea that the evidence as a whole showed that MeEachern was the duly authorized agent of Farkas to sell or trade the car sued for. However, the undisputed testimony of both Farkas and MeEachern, quoted above, absolutely disproves that any such special agency existed, or ‘that the latter was the general agent of the former. The mere fact that there was some evidence to the -effect that McEachern had been on previous occasions- the plaintiff’s agent for a similar purpose was wholly insufficient to support a conclusion that he disposed of the car as the agent of the plaintiff on this particular 'occasion. Especially is this true in view of the direct, ¡Dositive testimony that the car was disposed of without the authority, knowledge, or consent of the owner, and in the absence of any testimony disclosing knowledge on the part of the buyer that McEachern had ever previously acted as agent for the plaintiff in similar transactions. To the contrary, Williams (the buyer) testified that he thought at the time he purchased the car that it belonged to McEachern. Neither was there any evidence whatever tending to prove that the plaintiff ever ratified the unlawful and unauthorized sale of his car in any way. To the contrary, his testimony, as well as that of McEachern, shows conclusively that immediately upon learning of the disposal of the car he took a train for Thomasville and made demand of the defendant-to return the machine.

As we view the evidence, the verdict returned is unsupported by any testimony whatever, and the judgment overruling the motion for a new trial must be

Reversed.

Jenkins and Luke, JJ., concur. .


text:
    9569.
    COMMERCIAL BANK OF ATHENS v. AMERICAN STATE BANK.
    The defendant bank was under no duty to transfer to the plaintiff the share of the defendant’s capital stock described in the instrument executed by the original owner as security for a debt to the plaintiff, and subsequently purchased by the plaintiff at a sale under that instrument, although the instrument was recorded before the maker became indebted to the defendant bank. In view of the provisions of the stock-certificate and of the by-law set out in the agreed statement, of facts, no attempt on the part of the shareholder to transfer the stock would avail as against the corporation so long as he was liable to it for a debt arising before notice to. it as to the transfer. And such notice is not conveyed by the recording of such an instrument as the one in question.
    Decided October 16, 1918.
    Complaint; from Clarke superior court—Horace M. Holden, judge pro hac vice. January VI, 1918.
    In the brief of counsel for the plaintiff it was stated that “the ■ question presented for determination is whether or not the recording of the instrument given by Shelton'to the Commercial Bank of Athens was such notice to the American State Bank as would defeat its charter lien upon the stock.” In the agreed statement of facts it is stated that “It is agreed that the charter of American State Bank was obtained from the Secretary of State under act of December 30, 1893, page 78.” On that page of the Acts of 1893 is an act to amend the act of 1891 as to , banking companies, by providing that certificates of stock “can not be transferred except subject to the lien of the bank so long,as the stockholders may be indebted or liable to the company,” etc. This act was not codified. It was approved on the date of approval of the act to carry into effect the amendment of the constitution “in relation to chartering of banks, to provide for the incorporation of banking companies by the Secretary of State,” etc. Acts of 1893, p. 70; Civil Code (1910), § 3363 et seq. It was contended by counsel for the defendant that shares in a corporation “are not the proper subject of mortgage in this State,” and the mere record of a paper purporting to be a mortgage on such shares is not notice; that the instrument in question could' not at most be more than an assignment of a chose in action; that a certificate of stock is merely evidence of property, and not property itself; and that it could not be held that the corporation had notice as to the transfer of the stock unless it had actual notice or knowledge.

      Blanton Fortson, for plaintiff, cited:
    As to notice: Peoples Bank v. Exchange Bank, 116 Ga. 820, 828; Bank of Culloden v. Bank of Forsyth, 120 Ga. 575. Shares of stock may be mortgaged: Civil Code (1910), § 3256; 11 Corpus Juris, 433, § 43, and cases cited. Notice by record of mortgage: Civil Code, § 3259; First Nat. Bank v. Spicer, 10 Ga. App. 504 (3), 505; Hirsh v. Beverly, 125 Ga. 657.

      Erwin, Rucker & Nix, for defendant, cited':
    As to charter lien: Ga. L. 1893, p. 78; Southern Bkg. &c. Co. v. Fidelity Bkg. &c. Co., 105 Ga. 487. Notice of transfer: Civil Code (1910), § 2219; Southwestern R. Co. v. Thomason, 40 Ga. 411; Guarantee Co. v. East Rome Town Co., 96 Ga. 513 (2, 3); Buena Vista Loan &c. Bank v. Grier, 114 Ga. 400; Peoples Bank v. Exchange Bank, supra; Ardmore State Bank v. Mason, 39 L. R. A. (N. S.) 292 and notes. Stock-certificates not proper subject of mortgage: Small v. Wilson, 30 Ga. App. 677; Civil Code, § 3256. Equities against assignor of cbose in action: Civil Code, § 3653; Owens v. Atlanta Trust &c. Co., 122 Ga. 523; 10 Cyc. 630.
   Luke, J.

The Commercial Bank of Athens brought suit against the American State Bank to recover the value of a share of stock of the American State Bank and dividends thereon. The trial court.determined the case upon the following agreed statement of facts: “W. H. Shelton was the owner of one share of stock in the American State Bank on April 18, 1914. This share of stock was and is worth $143, and is drawing dividends at the rate of 8 per cent, per annum since such date. W. H. Shelton executed an instrument purporting to convey such stock to the 'Commercial Bank in the manner and on the date as appears from said instrument; and said instrument was recorded on the first day of May, 1914, in the office of the clerk of the superior court of Clarke county, Georgia; the material parts of the same being as follows: "Georgia, Oglethorpe County. For value received and as additional and collateral security, and to better secure the following described notes, each bearing interest from maturity at the rate of eight per cent, per annum, upon which W. H. Shelton as maker, joint maker, ox-endorser, or [?] hereby acknowledges himself legally bound to pay, and due to the Citizens Bank & Trust Company, or any overdrafts, or other demands, to wit: [specifying numerous notes], I hereby transfer, sell, and assign to the Citizens Bank & Trust Company the following described properties, to-wit: One certificate #78 of the American State Bank of Athens, Georgia, for one share of the capital stock of said company, of the par value of $100.00 each [and other property]. Now should the said W. H. Shelton well and truly pay the said promissory notes according to' the terms, conditions, and stipulations thereof, and^ all other demands of every, kind and description which he may be due, or may become due, to the Citizens Bank & Trust Company, then the Citizens Bank & Trust Company binds and obligates itself to deliver back ■to the said W. H. Shelton the above described properties. It is agreed and understood by the said W. H. Shelton that should he fail to pay said promissory notes above described promptly upon maturity, and should fail to pay any other demand of any kind and description that he may be due to said Citizens Bank & Trust Company, then the said Citizens Bank & Trust Company shall have the right to sell at public or private sale the said properties above listed, upon giving to said W.> H. Shelton thirty days’ notice in writing qf the time and place and manner of said sale; and if at such sale the properties above described should bring more than the amount due the said Citizens Bank & Trust Company upon obligation.which he may be due, or become due the said Citizens Bank & Trust Company, then and in that event the overplus will be delivered and paid over to the said W. H. Shelton. In witness whereof the said W. H. Shelton has hereto set his hand and affixed his seal, this the 18th day of April A. D., 1914.’ Signed and duly attested.

“On May 1st, 1914, W. II. Shelton was not indebted to' said American State Bank, nor was he indebted to said bank on April 18, 1914. On May 22d, 1914, W. H. Shelton borrowed over $300 from the said American. State Bank on his note endorsed by B. B. Wingate. The Commercial Bank of Athens had no knowledge of this loan to W. II. Shelton until November 21, 1914. The share of stock covered by said instrument and turned over' to the Commercial Bank of Athens at the time of the execution of such conveyance bore on its face the following words: ‘No transfer of stock will be made without the consent of the board of directors by any stockholder who shall be liable to the bank either as principal debtor or otherwise.’ At a regular meeting of the proper officers of the American State Bank on the 4th day of December, 1902, the following by-laws were duly adopted: ‘Section 23. Certificates' of stock signed by the president and cashier shall be issued to stockholders, and the certificates shall state upon their face that the stock is transferable only on the books of the bank. All.shares of stockholders shall be subject to a lien in favor of this bank, superior to all other liens, to secure any loan, overdraft, or other indebtedness due the bank, and no transfer of such shares shall be . valid as against the lien hereby created unless by consent of the board of directors. And a statement of the fact that no shares'of any shareholder who is indebted to the bank, either as principal or as security, shall be transferred without the consent of the board of directors shall appear iñ the face of each certificate.” The Commercial^ Bank of Athens had.no knowledge of said by-laws as above set forth, prior to the time it asked that said share of stock be transferred to it on the boobs of said American State Bank on November 21st, 1914.

“Some time in November, 1914, and prior to November 21st, 1914,'the Commercial Bank of Athens exercised its right of sale under the terms of the instrument above quoted, and bought said share of stock, all of the conditions as to time and manner of'sale being strictly complied with. On November- 21, 1914, the'Commercial Bank of Athens presented said share of stock to the American State Bank and asked that it be transferred upon the books' of said American State Bank to the Commercial Bank of Athens, which request was refused. It is agreed that the' Commercial iBank' of Athens is the successor of Citizens Bank & Trust Company and entitled to just such rights as was the said Citizens Bank & Trust Company.'. It is further agreed that at the time American State Bank made its loan.to Shelton as stated it had no notice, other than such constructive notice as the recording of the instrunient on' May 1st,'1914, of the claim of the Citizens" Bank & Trust Company-against'said share of stock might be held to give. The American State Bank has refused to transfer the share of stock from W. EL Shelton to the plaintiff, except upon payment of its debt as aforesaid, and the said American State Bank has kept the' dividends arising on said share of stock, as stated, since May 1, 1914. It is agreed that'the charter of American State Bank was obtained from the Secretary of State under the act of December 20, 1893, page 78.” ' ' ' ■

Upon- this agreed state of' facts judgment was rendered in favor of the defendant; to which judgment the plaintiff excepted.

The court did hot err in finding against the plaintiff. In view of the provisions of the stock-certificate and' of the by-law set out in the agreed statement of facts, no attempt on the part of the shareholder to transfer the stock would avail as against the corporation so long as he was liable to it for a debt arising before notice to it as to the transfer: Bank of Culloden v. Bank of Forsyth, 120 Ga. 575 (1), 577 (48 S. E. 226, 100 Am. St. R. 115); Park’s Ann. Code, § 3375. See, in this connection, Stafford v. Produce Exchange Bkg. Co., 61 Ohio St. 160 (76 Am. St. R. 371), and citations. And such notice is not conveyed by the recording of such an instrument as the one in question here.

Judgment affirmed.

Wade, G. J., and Jenkins, J., concur.


text:
    9586.
    Ellard v. Coleman.
    Decided October 16, 1918.
    Action for breach of contract; from Habersham superior court— Judge J. B. Jones. February 5, 1918.

      J. 0. Edwards & Sons, Sam Kimzey, for plaintiff in error.

      W. B. Sloan, Boyd Sloan, contra.
   Luke, J.

1. A widow whose husband died intestate, leaving no lineal descendants, is, where it appears that he left no unpaid debts, entitled to his whole estate, without taking out letters of administration; and, being so entitled, she is his personal representative. Johnson v. Chappion, 88 Ga. 527 (15 S. E. 15); Jackson v. Green, 123 Ga. 255 (51 S. E. 284); Civil Code (1910), § 3931.

(a) The court did not err in making the widow party plaintiff.

2. The charge of the court, when considered as a whole, was full and fair, and presented correctly the issues raised by the pleadings. The evidence authorized the yerdiet, which has the approval of the trial judge, and none of the alleged errors require a new trial. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, O. J., and Jenkins, J., concur.


text:
    9594.
    Lee Brothers et al. v. Bewley-Darst Coal Company.
    Decided October 16, 1918.
    Complaint; from Newton superior court—Judge Smith. January 7, 1918.

      King & Johnson, for plaintiff in error. Rogers & Knox, contra.
   Luke, J.

1. Where an executory contract for the sale of goods provides for the- delivery of the goods on order during a certain period, time is of the essence of the contract, and a failure to order delivery during -that period, terminates the right to order shipment of the goods. Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 605. (58 S. E. 200); Caddick Milling Co. v. Moultrie Grocery Co., 22 Ga. App. 524 (96 S. E. 583). See Gude v. Bailey Co., 4 Ga. App. 226 (61 S. E. 135).

2. The evidence demanded a verdict in favor of the plaintiff. It was not error, for any reason assigned, to overrule the motion for a new trial.

Judgment affirmed.

Wade, O. J., and Jenkins, J.-, concur.


text:
    9604.
    Alsabrooks v. Bank of Sparta.
   Luke, J.

1. A banking corporation is not charged with notice of facts which become known to its president while he is dealing in his private capacity and in his own behalf with third persons. Peoples Bank of Talbotton v. Exchange Bank, 116 Ga, 820 (43 S. E. 269, 94 Am. St. R. 144).

Decided October 16, 1918.

Complaint; from city court of Sparta—Judge Johnson presiding. February 18, 1918.

Robert II. Lewis, for plaintiff in error.

R. Li Merritt, Burwell & Fleming, contra.

2. The evidence demanded a finding in favor of the plaintiff, and the court did not err in instructing the jury so to find. None of the assignments of error which have the approval of the trial judge require a reversal 'of the judgment. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, G. J., and Jenkins, J., concur.


author: Lüke, J.

text:
    9610.
    Varn et al. v. Breen.
    Decided October 16, 1918.
    Complaint; from city court of Savannah—Judge Freeman. March 4, 1918. .

      Saussy & Saussy, for plaintiffs in error.

      Edwards & Lester, W. B. Gibbs, contra.
   Lüke, J.

1. There is no merit in the assignments of error upon excerpts from the charge of the court. The charge of the court has been carefully examined, and, when considered as a whole, it was full and fair, and presented the issues of the case.

2. The evidence was conflicting, but was sufficient to authorize the Verdict, which has the approval of the! trial judge. None of the grounds of the motion for a new trial are sufficient to require a reversal of the judgment overruling the motion.

Judgment affirmed.

Wade, O. J., and Jenkins, J., concur.


text:
    9620.
    Caudell v. Nabstedt.
   Luke, J.

1. The suit was upon a contract in writing, unconditional except as to attorney’s fees. The defendant’s plea raised no Issue and was insufficient to support an- amendment, and the court properly disallowed the proposed amendment and struck that part of the original plea wherein.the defendant undertook to deny indebtedness. McMillan v. Fourth National Bank, 18 Ga. App. 445 (89 S. E. 635); Smith v. First National Bank, 115 Ga. 608 (2,3) (41 S. E. 983).

2. The note sued on provided for attorney’s fees of -ten per cent, for collection, and the petition alleged that the ten-days notice for the purpose of collecting attorney’s fees had been given the defendant, a copy of the notice was attached as a part of the petition, and the defendant admitted that paragraph of the petition. The court did not err in directing a verdict for the plaintiif for principal, interest, and attorney’s fees, and did not thereafter err in overruling the” motion for a new trial.

Decided October 16, 1918.

Complaint; from Banks superior court—Judge Cobb., January 26, 1918.

The answer admitted the allegations of each paragraph of the petition except the 2d and the 3d. Paragraph 2, which alleged that the defendant was indebted to the plaintiif in stated sums on a promissory note, a copy of which was attached, was answered as follows; "Defendant denies paragraph 2 as to amount.” Paragraph 3, which alleged that the debt was past due, and that the defendant refused to pay it or any part of it, was answered as follows: “Defendant admits that he owes plaintiif some, but denies that he owes as much as plaintiff alleges.” The plaintiff demurred to these paragraphs' of the answer, and moved to strike them, on the grounds that they were too vague and were not sufficient to set up a defense; that the execution of the note sued on was thereby admitted, and an indebtedness was admitted; that the correct amount of indebtedness was not set out therein, and the answer was not sufficient as‘a,plea of payment. An amendment, setting up that the note was for a loan of a stated sum less than the amount of the note, and that a certain sum included in the note was usury, was offered at the trial term. The court refused to allow the amendment, and sustained the demurrer and struck the paragraphs of the answer set out above, and thereupon directed a verdict for the plaintiff; to all of which the defendant excepted.

A. J. Griffin, J. C. Edwards & Sons, for plaintiff in error. ■

W. A. Charters, contra.

Judgment affirmed.

Wade, C. J., and Jenlcms, J., concur.


author: Wade, C. J.

text:
    9665.
    Popwell Brothers et al. v. Lott-Lewis Co.
   Wade, C. J.

Where in an action on an alleged account stated, which was apparently barred by the statute of limitations, the plaintiff, in an effort to avoid the bar, averred that the original liability was revived by a. new promise to pay (Civil Code of 1910, § 4386), and all the testimony introduced showed conclusively that the “new promise” was not in writing, as is required by the mandatory provisions of the Civil Code, § 4383, a verdict in favor of the defendant’s plea that the account was barred was demanded; and the finding of the jury in favor of the plaintiff should have been set aside, on the motion for a new trial.

Decided October 16, 1918.

Coniplaint; from city court of Brunswick—Judge Krauss. March 9, 1918.

Oscar Nail, O. B. Conyers, for plaintiffs in error.

F. M. Scarlett Jr., contra.

Judgment. reversed.

Jenkins and Luhe, JJ., concur.


text:
    9668.
    Langford v. Mount Zion Baptist Church et al.

   Wade, C. J.

1. A- suit can not be maintained against an unincorporated church. Mutual Life Ins. Co. v. Inman Park Church, 111 Ga. 677 (36 S. E. 880); Wynn v. Richard Allen Lodge, 115 Ga. 796 (42 S. E. 29); Western & Atlantic R. Co. v. Dalton Marble Works, 122 Ga. 774 (50 S. E. 978). Neither can a suit against an unincorporated church be converted by amendment into a suit against a corporation or body politic. Barbour v. Albany Lodge, 73 Ga. 474; Roberts v. Tift, 136 Ga. 901, 904 (72 S. E. 234). In the instant case the unincorporated organization which in the original petition was designated as defendant had no .legal existence, and an amendment attempting to allege that it was a body politic in. certain particulars and for specified purposes did riot save the petition, since the suit as originally filed was, a mere nullity and there was nothing to amend by. The plaintiff argues that the purpose of his'amendment was to bring the suit undey the provisions of section 2830 of the Civil Code (1910), but contends that this did not convert the unincorporated religious organization into a corporation. However, the title of that section is “Societies incorporated,” and the language thereof is tliat when there is a compliance therewith, such societies “are hereby made bodies politic and corporate for the purposes named.” The Supreme Court has also construed this section as creating a corporation. In the decision in the case of Mountain Top Missionary Baptist Church v. McLarty, 133 Ga. 548 (66 S. E. 243), it is said: “An action in tort is not maintainable by a church incorporated under the Civil Code [1895], § 2357 [1910, § 2830], in its corporate name,” etc. Then, too, the amendment did not show a compliance with the provisions of section 2830, supra.

2. The petition under review contained two counts, one.founded on contract and the other based on quantum meruit. The original petition failed to describe any property or to assert a lien thereon. Neither did the declaration set up a claim against a trust estate, under the Civil Code, § 3786 et seq. The plaintiff attempted by amendment to set up a lien against a certain, lot of land and to follow the proceeds of a sale of that particular lot into another lot subsequently purchased. Clearly this added a new and distinct cause of action to the original petition, subjecting it to demurrer for that reason. So, also, if the amendment could legally convert the original action into a claim against a trust estate, then obviously no parties other than the trustees of the church were necessary, and the other parties should he dismissed, See Kelsey v. Jackson, 123 Ga. 113, 114 (50 S. E. 951).

Decided October 16, 1918.

Complaint; from city court of Savannah—Judge.Davis Freeman. March 4, 1918.

In the original petition it is alleged, that the Mount Zion Baptist Church is an unincorporated religious organization under the governmgnt and control of a pastor and a board of trustees; that H. D. Butler is the pastor of said church, and William Black and others named are the trustees of said church, and that the said Mount Zion Baptist Church and the pastor and trustees thereof are indebted to petitioner in the sum of $500; that the said pastor and trustees are likewise indebted to petitioner in the sum of $500 individually, by reason of their being officers and members of said unincorporated religious organization and successors of the former pastor, officers, and trustees of said church. It is prayed, that the petitioner may recover judgment in the sum of $500 of the- said Mount Zion Baptist Church, an unincorporated religious organization, and of the said pastor and board of trustees as- officers and as individual members thereof. In the first count of the petition it is alleged, that said indebtedness arises by reason of a contract entered into .between petitioner and the former pastor and board of trustees representing said church (naming them), according to the terms of which petitioner was to prepare and deliver detailed plans and specifications for the improvement of the church building of the said Mount Zion Baptist Church; that his compensation for such services was to be 5 per cent, of the contract price of the building, and the contract price of the building was $10,000; that he has drawn the detailed plans and specifications of the' said church and delivered them to the pastor and board of trustees then acting for said church and representing it, and the said debt is due and payable, and no part of it has been paid. In the. second count it is alleged that the plans and specifications mentioned were prepared and delivered to the former pastor, trustees, and officers representing th.e church and duly authorized by the church, at their special instance and request, and that the reasonable value of the services rendered by him to the church and to the said officers, trustees, and individuals is $500.

■3. The petition was subject to demurrer for th§ reasons stated above, and the trial court did not err in so holding. ’ s

Judgment affirmed.

Jenkins' and Luke,' JJ., concur.

Ael amendment, filed after demurrer to the petition, strikes from the suit “the names of the various individuals, so that the suit shall proceed alone' against the Mount Zion Baptist Church, an unincorporated religious organization, and against the parties named as pastor and as trustees thereof;” and alleges that “the plans and specifications were delivered to the Mount Zion Baptist Church some time prior to April 28, 1912, and accepted by the church on that date or a few days prior to that time.” On May 18, 1917, the demurrer as amended was sustained in a judgment providing that “Plaintiff is allowed until June 1st, 1917, to amend to meet the demurrers; if not so amended by said date the case will stand dismissed.” On June 23, 1917, the court allowed .(“subject to objection and demurrer”) an amendment in which it is alleged: At the time plaintiff performed the service for which suit is brought, the Mount Zion Baptist Church owned a lot in the City of Savannah, described, and the said plans prepared by plaintiff and accepted by said church were for a building on this lot. Shortly after the plans were submitted the defendant church sold this lot for $6,000, and with the proceeds purchased a lot at Waldburg Street Lane and West Broad Street in the City of Savannah, on which there was a completely equipped church. The lien of plaintiff’s claim against said organization attached to the first lot and to the proceeds thereof, and follows' the same into the lot in which the proceeds were finally invested. The Mount Zion Baptist Church has entered of record in the clerk’s office of the superior court of Chatham county the name of the said religious organization, together with the names of its trustees and officers. Such entry appears on the record of the superior court of Chatham county, Georgia, in Book of Deeds, 8-B, 298. The property first above described was conveyed to such trustees and officers and to such church as an unincorporated religious body. Such entry appears in the deed, dated August 14, 1899, wherein J. Livingston Minis conveyed said lot to George Anderson and others named, as trustees of Mount Zion Baptist Church, an unincorporated religious body, and to their successors, with pówer to them to sell the property at private or public sale, without order of court and without advertisement, when authorized by the congregation of the church. The said deed was accepted by the church and recorded in the clerk’s office, and the land thereunder was sold and the proceeds reinvested-in the lot on Waldburg Street Lane. The Mount Zion Baptist Church again entered its name and the names' of its trustees and officers in said clerk’s office on January 25, 1913. Such entry appears in the deed dated January 17th, 1913, wherein two lots of land in Savannah (described), being the land on which now stands the church building occupied by the Mount Zion Baptist Church, were conveyed by the First Bryan Baptist Church, a corporation, to B. L. Lockley and others named, as trustees for the Mount Zion Baptist Church, for $9,500; the said entry reciting that by virtue of the sale of said property the Mount Zion Baptist Church went into possession thereof and has been in possession1 ever since, under said deed, and the defendant entered the same, containing the recitals mentioned, in the said clerk’s office. After this amendment to the petition the demurrer was xenewed orally; the court sustained the demurrer and dismissed the petition, and the plaintiff excepted.

In the demurrer it was contended that no cause of action was set out against the defendants, and that there was a misjoinder of parties, in that the plaintiff undertook to join as defendants the Mount Zion Baptist Church, the defendants as individuals, and the defendants as pastor and trustees of the church. The allegations that the pastor and trustees were indebted were demurred to as not setting forth any good reason why they were indebted.

In the brief of counsel for the plaintiff in error it was contended that “the record of the name, style, and objects of the association, as provided by section 2830 of the Civil Code (1910), does not make an unincorporated réligious organization a corporation in the true sense of the term, but merely makes it a legal entity capable of being sued and having 'the privileges of a corporation in specified particulars;” that the filing for record-in the clerk’s office of an instrument conveying property to the church, reciting the name of the organization, the names of its trustees and the' purposes of the organization and the trust, renders the organization subject to suit; that in'a suit against the trustees the trust property may be subjected to the payment of a debt for services' rendered for the improvement of the property; and that the suit, if erroneously brought, was amendable.

Oliver & Oliver, for plaintiff in error, cited:

Civil Code. (19101, §§ 2824-9, 2830, 3786 et seq.; Kelsey v. Jackson, 123 Ga. 113; Thurmond v. Cedar Spring Church, 110 Ga. 816; Mutual Life Ins. Co. v. Inman Park Church, 111 Ga. 677; Wilkins v. Wardens of St. Mark’s Church, 52 Ga. 351; Gress Lumber Co. v. Rogers, 85 Ga. 587; Josey v. Union Loan & Trust Co., 106 Ga. 608, 612; Perkins Co. v. Shewmake, 119 Ga. 617; Adas Yeshurun Society v. Fish, 117 Ga. 345; Smith v. Columbia Jewelry Co., 114 Ga. 691; Georgia &c. Asso. v. Borchardt, 123 Ga. 181 (4); Austin v. Ferst’s Sons Co., 2 Ga. App. 91 (4); Heyman v. Decatur Street Bank, 16 Ga. App. 15 (5, 6); Atlantic Coast Line R. Co. v. Cook, 6 Ga. App. 128.

II. W. Johnson, contra, cited eases cited in the decision.


text:
    9674.
    Booker, administrator, v. Heard & Sutton.
    Decided October 16, 1918.
    Complaint; from Wilkes superior court—Judge Walker. March 2, 1918.

      I. T. Irvin Jr., for plaintiff in error. C. F. Sutton, contra.
   Luke, J.

The testimony admitted over objection was not material and necessary to the plaintiff's cause, and was harmless to the cause of the defendant. The evidence authorized the verdict against the defendant, which has the approval of the trial judge, and for no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

Wade, G. J., and Jenkins, J., ebneur.


text:
    9677.
    Bank of Omega v. Wingo, Ellett & Crump Shoe Co.
    Decided October 16, 1918.
    Complaint; from city court of Tifton—Judge Price-. 'April 4. 1918. ■ A
    , R; D. Smith, for' plaintiff in error. J. S. RidgdiB, contra/)
   Luke, J.

The law of this case, as settled by the decision of this court when the case was here on demurrer (19 Ga. App. 177, 91 S. E. 251), concludes the plaintiff in error and this court on the question as to whether the Bank of Omega is liable to the plaintiff by reason of the letter of its cashier to the plaintiff, referred to in the opinion of the court. The evidence was sufficient to prove the allegations of the-petition, and the trial court did not err in rendering judgment for the plaintiff.

Judgment affirmed.

Wade, G. J., and Jenkins,’ J., concur.


text:
    9684.
    Benjamin v. Elliott.
    Decided October 16, 1918.
    Distraint “ ’from city court of Eloyd county—Judge Nunnally. March 28, 1918.
    The distress warrant, after reciting that Katherine Benjamin has made affidavit that W. B. Elliott is justly indebted to J. 'B. Benjamin in a stated sum, directs a levy on the property of the defendant to make the said sum due to J. B. Benjamin, etc. The amendment is sworn to by Katherine Benjamin, and begins“And now comes Katherine Benjamin as agent for J. B. Benjamin in the above-stated matter, and amends the affidavit of foreclosure in the distress warrant,” etc. On objection by the defendant, on the ground tha,t it .made a new party plaintiff, the court refused to allow the amendment. The court then sustained a motion to dismiss the distress warrant, on the ground that it did not follow the affidavit, “in that the affidavit alleges that W. B. Elliott is indebted to Kate Benjamin, and the warrant issued in .the name of J. B. Benjamin.” J. B. Benjamin excepted to the refusal to allow the amendment, and to the dismissal of the distress warrant.

      Maddox & Boyal■, for plaintiff. W. B. Mabana, for defendant.
   Luke, J.

Where a distress warrant is issued and levied) and counter-affidavit is made and bond given, based on an affidavit as follows: “Before me comes'Katherine Benjamin, Agt. J. B. Benjamin, who, being' duly sworn, deposes and says that W. B. Elliott of said county is justly indebted to deponent in the sum of one hundred and forty-seven dollars and fifty cents ($147.50), for rent of Benjamin’s farm near West Rome, which is now d,ue and unpaid,” the affidavit xhay be amended by'striking the word “deponent” and inserting in lieu thereof the word “J. B. Benjamin.” Especially is this true where the counter-affidavit admits renting the premises from J. B. Benjamin and seeks a judgment against J. B. Benjamin. The court erred in rejecting the amendment and *in thereafter dismissing the distress warrant. Park’s Ann. Code, §§ 5706, 5559; Collins v. Taylor, 128 Ga. 789 (58 S. E. 446); Penn v. McGhee, 6 Ga. App. 631 (65 S. E. 686).

Judgment reversed.

Wade, C. J., 'and Jenhins, J., concur.


text:
    9688.
    West v. Henderson, administrator.
   Luke, J.

1. While a judge of. the superior court, in sustaining a petition for certiorari, may.return the ease to the trial court with instructions, and such instructions become the law of the case when not reversed by the appellate court, yet, to be binding, the instructions must be specific. Where the judgment sustaining a certiorari was as follows:' “The within certiorari coming on to be heard, after considering same, it is ordered and adjudged that it be' granted and that 'a new trial be had in the justice court. It is the judgment of this court that the justice court hear the evidence, and decide from it whether or not the contract at the time of purchase was that the due bill sued on was to be settled by the note, as well as the other issues [italics ours]. This is not to be construed as any intimation on the facts,” the instructions thus given confined the'issues to none other than all those raised by the pleadings. The justice of the peace did not err in so holding when the-case came on for á new trial.

Decided October 16, 1918.

Certiorari; from Habersham superior court—Judge J. B. Jones. March 15, 1918.

J. C. Edwards & Sons, for plaintiff in error.

I. H. Sutton, contra.

g. The right to' open and conclude the argument in ■ a case may be a valuable right; but where the defendant admits a prima facie case and assumes and undertakes the burden of proving his defense, and the evidence demands a finding in favor of the defendant, the plaintiff is not harmed by losing the right to open and conclude the argument of his case.

(a) The defendant in this case admitted by his plea a prima facie case, and assumed the.burden of proof, and the justice of the peace did not err in permitting him, to open and conclude the argument to. the jury.

3. There were two verdicts in favor of the defendant in this case, and no error-.of law is shown to have been committed by the justice of the peace. The judgment sustaining the certiorari and granting a new trial, stating that it was granted upon two certain alleged errors of law, is . Reversed.

Wade, O. J., and Jenhins, J., concur.


author: Dtjke, J.

text:
    9692.
    Stinson et al. v. Weaver.
    Decided October 16, 1918.
    Levy and claim; fropi Talbot superior court—Judge Howard. March 6, 1918.
    J. J. Bull & Son, for plaintiffs in error.

      J. A. Smith, J. H. McGehee, contra.
   Dtjke, J.

1, Upon the trial of a claim case, after the introduction of testimony by the plaintiff in fi. fa., showing possession of the property levied upon to have been in the defendant in fi. fa., the claimant can not have the opening' and conclusion by then admitting possession of the property in defendant at the time of levy.

2. The evidence demanded a finding in favor of the plaintiff in fi. fa., and the court did not err in directing the jury so to find.

Judgment affirmed.

Wade, O. J., and Jenhins, J., concur.


text:
    9693.
    SAMPSON v. McRAE.
    Where the pendency of a former suit ill the same court between the same parties for the same cause of action was pleaded in abatement of an action, and the record of such a suit was introduced in evidence, and there was no entry of dismissal of the suit, the court was not authorized to allow counsel for the plaintiff, over objection of the defendant, to make an entry nunc-pro tunc dismissing the former suit, as of a date prior to the filing of the second suit, although it was testified that before the filing of the second suit the plaintiff’s attorney, in vacation, paid the costs of the former suit and directed the clerk of the court to mark it dismissed.
    The court erred in directing a verdict against the plea in abatement.-
    Decided October 16, 1918.
    Action on bond; from city court of Thomasville—Judge W. H. Hammond. March 18, 1918.

      O. E. Hay, for plaintiff in error.

      J. U. Merritt, W. J. MacIntyre, contra.
   Wade, C. J.

In this case the defendant filed a plea in abatement, invoking the provisions of the Civil Code (1910), § 4331, and averring that a fornier suit between the same parties, having for its subject-matter the same causé of action, was still pending in ,the same court. He also filed an answer denying the material allegations of the plaintiff’s petition. At the trial* he introduced in evidence the pleadings in the first suit, in support of his plea in abatement. The plaintiff thereupon introduced evidence' that prior to the filing of the second suit his attorney, in vacation, paid the accrued costs in the former suit, and directed the clerk to mark it dismissed, but that the clerk failed to do so, and no entry of dismissal was made by any'one. Hpon this showing the plaintiff’s attorney moved to sign a withdrawal of the first suit and to date its dismissal as of a time prior to the filing of the second suit. The court granted this motion, over the objection of the defendant’s counsel, and directed a verdict against the plea in abatement.

The cases were not brought at the same time. There was no official entry of dismissal as required by law on the pleadings in the first suit, and therefore, when the second suit was called for trial, another suit for the same cause was pending in the same court between the same parties. In such case the pendency of the first suit may be pleaded in abatement of the second (Civil Code, § 4331); and, the defendant having filed at the call of the second suit- a plea invoking the provisions of this section of the code, to permit the plea to be evaded by allowing the plaintiff’s attorney to make and sigh nunc pro tune an entry of dismissal would render the statute nugatory. It would in effect give the plaintiff the right to elect, when the statute declares that, though he may do this if the suits be brought simultaneously, the plea of former suit pending is a good defense to the latter suit if the two be filed at different times. The court, therefore, erred in directing a verdict against the plea. Singer v. Scott, 44 Ga. 659 (2). See also, in this connection, N., C. & St. L. Ry. v. Hubble, 140 Ga. 368 (78 S. E. 919, L. R. A. 1915E, 1132); L. & N. R. Co. v. Newman, 132 Ga. 523 (64 S. E. 541, 26 L. R. A. (N. S.) 969).

Judgment reversed.

Jenlcins and Lulce, JJ., concur.


text:
    9699.
    Eggler v. Southern Railway Company.
    Decided October 16, 1918.
    Action for damages; from city court of Atlanta—Judge Eeid. April 2, 1918.

      B. B. Arnold,, for plaintiff. McDaniel & Blade, for defendant.
   Wade, C. J.

1. Exception was taken to the ruling of the trial judge that this case came under the provisions, of the Federal employer’s liability act, but in the reply brief of counsel for plaintiff in error this exception is expressly abandoned, and it is there agreed that the case be determined undbr the terms of that act. The merits of the exception therefore will not be considered.

' 2. The case being determined under the Federal employer’s liability act, there was no presumption of negligence against the railroad company upon proof of the killing of the plaintiff’s husband. The burden was upon the plaintiff to make out her case by proof of every essential element. This burden.was not carried; for a consideration of the entire evidence adduced, together with all reasonable inferences that might be drawn therefrom, compels the conclusion that the deceased did not come to his death as a result of negligence of the defendant.

3. The trial judge did not err in awarding a nonsuit.

Judgment affirmed.

Jenlcins and Lulce, JJ., concur.


text:
    9742.
    Bacon v. Hanesley.
   Wade, C. J.

The present trover action grew out of another suit between the same parties, which was. reviewed by this coui't in a former decision (19 Ga. App. 69, 90 S. E. 1033), where the identical mortgage-foreclosure proceeding under which the defendant now claims title ta the property sued for was held to be absolutely void.

Decided October 16, 1918.

Trover; from city court of Americus—Judge Harper. April 15, 1918.

Wallis & Fort, fox plaintiff. B. L. Maynard, fox defendant. •

(a) The mortgage-foreclosure proceeding, being void ab initio, could not be revived by a “sliort-order” proceeding for a sale of the property under the Civil Code (1910), § 6068 et seq. .Nothing done in pursuance thereof could render a sale thereunder legal, and the purchaser at such a sale obtained no title whatever to the property. Consequently the trial judge erred in directing a verdict in his favor.

2. In view of the foregoing holding it is unnecessary to discuss other grounds of the motion for a new trial.

Judgment reversed.

Jenkins and Luke, JJ., concur.


text:
    9749.
    Doom v. Studebaker Corporation of America.
    Decided October 16, 1918.
    Complaint; from Fulton superior court—Judge Bell. April 3, 1918.
    In the plaintiff’s petition it is alleged that the defendant is indebted to the plaintiff in the sum of $897.50, as shown by an account attached to the petition (Exhibit A); the indebtedness •arising out of the facts here set forth: On December 1,. 1914, petitioner entered into a written contract with defendant, under the terms of which he was to receive 10%' on sales made by himself, and 3% on sales made by subsalesmen-working under him. A copy of this contract is attached to the petition. He worked under this contract until August 1, 1915, receiving the full commission due him thereunder up to June 1, 1917 (?). On or about June 1, 1915, he entered into a verbal contract with the defendant corporation, through its duly authorized representative, under the terms of which the commissions of 10% on personal sales and 3% on subsales, agreed upon in the contract of December 1, 1914, were reduced to 6% on personal sales and 1%' on subsales; this to apply and be of force until all the 1915 automobiles were sold out, after which the terms of the contract of December 1, 1914, as to commissions and other provisions, would continue of force on all 1916 models due to arrive the latter part of July, 1915; that is, the reduced commission would apply on sales made of 1915 models, while the original commission would stand on all new 1916 models coming in. It is alleged that this oral agreement of June 1, 1915, was without consideration, “because under the terms of the contract of December 1, 1914, the rights of the parties were fixed, and no consideration, good or valuable, was paid to or received by plaintiff for receiving less than he was entitled to receive, for the cars sold from June 1 to August 1, 1915, his full commission.” On or about August 1, 1915, the defendant, through the same agent who had negotiated the unlawful agreement of June 1, 1915, contracted and'agreed orally that it would pay plaintiff his full commission on sales between June 1 and-August 1, 1915, at the same amounts stated in the contract of December 1, 1914. The defendant is further indebted, to plaintiff in the sum of $50, as will, appear by reference to the account marked Exhibit C.‘ On August 1, 1915, plaintiff entered into a new written contract with defendant, embodying a new basis of employment. A copy of this contract is attached to the petition as Exhibit'D. Plaintiff worked under the contract of August 1,1915, until his connection with the defendant was severed later on. There are commissions to the amount of $897.50 due him from (for?) the period included between June 1, 1915, and August 1, 1915, on the basis of the contract of December 1,-1914, instead of the contract of June 1, 1915, being the difference between commissions figured on the basis of the contract of December 1, 1914, and those figured on the basis of the unlawful agreement of June 1, 1915. The total amoupt due plaintiff is $947.50, payment of which has been demanded and refused.
   Luke, J.

1. Where in a contract of service it is stipulated that it may be terminated upon certain notice, a verbal new agreement at a lesser sum for service, which does not give the right to the employer to terminate the contract upon notice, but provides a definite .and specific duty and fixes a definite compensation, and which is acted upon by both parties, payment being made and accepted thereunder, is not void for want of consideration.

(а) The new verbal contract supersedes the original contract.

(б) A petition setting up these facts and seeking recovery upon the original contract is subject to demurrer.

2. The court did not ei-r in. sustaining the general demurrer to the petition.

Judgment affirmed.

Wade, G. J., and Jenkins, J., concur.

Exhibit A is a statement of commissions amounting to $897.50 “from June 1,1915, to August 1, 1915.” The written contract of December 1, 1914, is signed by the parties and states that in consideration of the mutual covenants therein the Studebaker Corporation of America agrees to employ J. M. Doom for a’ period of one year from December 1, 1914, in the capacity of retail sales manager, and to pay him as compensation thereunder a commission of 10% on cash received from retail sales of cars, made by himself, and 3% on balance of cash received from all cars sold by- other members of the retail division of the Atlanta branch; that the said employee agrees to give his full time and discharge of duty to the company for the compensation aforesaid; and “This employment shall be subject to termination at any time upon thirty days’ notice given by either .party to the other, and upon termination of this employment for any reason all compensation shall cease accruing. If employee remains in the service of the company beyond the period of this agreement the, condition hereof will apply.” Exhibit C is a statement of account for “salary due . . for the week ending April 7th, 1916, 'at $50 per week, due according to the terms of the contract executed August 1st, 1915.” Exhibit D is a written contract dated September 18, 1915, reciting that it is entered into as of August 1,1915, and providing for commissions different from those provided for in the preceding contracts, and guaranteeing that they will not average less than $50 per week.

The defendant demurred to the petition generally and specially, and the court sustained the demurrer and dismissed the petition.

'Edgar Watkins, Horace Russell, for plaintiff, cited:

Davis v. Morgan, 117 Ga. 504 (61 L. R. A. 148, 97 Am. St. R. 171); Duncan v. Cone Incorporated, 16 Ga. App. 253; Thurston v. Ludwig, 67 Am. Dec. 328.

Rosser, Slaton, Phillips & Hopkins, for defendant, cited:

McDonald v. Alabama Ins. Co., 85 Ala. 414 (100 Am. R. 393); Civil Code (1910), § 4242; Sigler v. Sigler, 98 Kan. 524 (L. R. A. 1917-A, 725, 727, 731); Kehoe v. Sou. Paving Co., 7 Ga. App. 236 Wellmaker v. Wheatley, 123 Ga. 201.


text:
    9753.
    Christopher et al. v. Georgian Company.
   Wade, C. J.

1. Where parties sign a bond as guarantors, they can not set up, by way of defense to a suit thereon, that the instrument was executed by reason of a contemporaneous parol understanding with the principal debtor that they were not to be bound,, and for a purpose wholly at variance with its plain tenor and import, as this would in effect be merely adding to and varying the terms of a written contract, by parol evidence. Civil Code, §§ 4268, 5788; Hirsch v. Oliver, 91 Ga. 554 (2), 560 (18 S. E. 354); Connor v. Lasseter, 98 Ga. 708 (25 S. E. 830); Capps v. Edwards, 130 Ga. 146 (4), 150 (60 S. E. 455); Biggers v. Equitable Mfg. Co., 124 Ga. 1045 (53 S. E. 674); Athens Mutual Ins. Co. v. Evans, 132 Ga. 703 (3), 708 (64 S. E. 993); Brack v. Brantley Co., 134 Ga. 495 (67 S. E. 1128); Coleman v. Barber, 137 Ga. 22 (72 S. E. 399); Bush v. Roberts, 4 Ga. App. 531 (5), 532 (62 S. E. 92); Campbell v. Allcahest Lyceum System, 10 Ga. App. 839 (74 S. E. 443).

Decided October 16, 1918.

'Complaint; from city court of Floyd county—Judge Nunnally. March 5, 1918..

John W. Bale, M. B. Eubanks, for plaintiffs in error.

T. W. Lipscomb, J. L. Deadwyler, contra.

(a) The written contract sued upon being complete, unambiguous, and explicit as to terms, the trial judge did not err in rejecting a proffered amendment which attempted to engraft upon its express terms a contemporaneous parol agreement.

2. The action of the trial court in allowing a certain letter to be admitted in evidence over the objection of the defendants is not such error (if error at all) as would require a reversal, since a prima facie case was made out regardless of this evidence.

3. “Prima facie.proof of the correctness of an account is made by the introduction of the testimony- of witnesses who swear that they had knowledge of the items, made memoranda of the same, and turned them over to a bookkeeper (though they do not at the trial remember the details of the items), supplemented by the testimony of the bookkeeper that he correctly copied these memoranda into the.account- (though the bookkeeper had no personal information as to the correctness of the items).” Swift v. Oglesby, 8 Ga. App. 540 (4), 543 (70 S. E. 97). “The Civil Code, § 5769, does not say that books of account must be put in evidence as proof of such accounts, but provides merely that they may be admitted.” Smith v. Southern Spring Bed Co., 16 Ga. App. 449, 451 (85 S. E. 612). “As a general rule, the• testimony of persons who have knowledge of the facts from which the books are made up is, as to those facts, primary evidence, and the books themselves are admissible only by way of corroboration.” Harper v. Hammond, 13 Ga. App. 238 (3), 240 (79 S. E. 44). Applying these decisions to the evidence adduced in this cause, a case was made out, and there being no evidence whatever introduced in behalf of the defendants, the trial judge did not err in directing a verdict for the plaintiff.

Judgment affirmed.

Jenhins and Luhe, JJ., concur.


text:
    9768.
    EMPIRE TALC & LUMBER CO. v. GOBLE.
    No title to the lumber in question passed tinder 'the parol 'contract of purchase relied on by the plaintiff, and the action of trover was not maintainable.
    Decided October 16, 1918.
    Trover; from Gordon superior court—Judge Tarver. February '28, 1918. . '
    The Empire Talc & Lumber Company brought trover against Goble for 60,000 feet of lumber. From the testimony of the plaintiffs vice-president and manager, Dillard, it appeared that after the' purchase of 200,000 feet of lumber by the plaintiff from the defendant under a written contract of January 20, 1917, a parol agreement was made between them on March 19, 1917, for the purchase of 100,000 feet more, to be delivered at the plaintiff’s yard in Chatsworth, under the' terms of the prior written contract, as to dimensions, prices, time of payment, etc. Dillard testified: “On the 24th of April, after getting word from Mr. Goble that he was done sawing on this second contract and wanted the lumber cheeked, I went to Gordon county, waited awhile on the day I got there for them to finish stacking the lumber, checked it up, and gave Mr. Goble check for $561:82, which represented the balance of advance on the January 20 contract and a payment of $350 on the March 19 contract. This lumber was to be delivered at our plant in Chatsworth, Ga., later in the year and in such quantities as we called for. We were advancing $5.25 per 1000 feet, the balance to be paid each two weeks as-the lumber was delivered. In October Mr. Goble completed the delivery of 200,000 feet. He came to our office and said he had come to settle up; which we did, as I understood it, for the. 200,000 'feet. Before leaving the office Mr. Goble said he did not intend to deliver the oth,er 100,000 feet, unless we would pay him more for it, that lumber had advanced in the market, that we had made enough off of him, and he did not intend to deliver the lumber unless he got more for it. I told him it was our lumber, that we had bought it under contract, and would expect it to be delivered according to contract. . . I got information that he had sold the lumber to Mr. Swan. . . Immediately after, I filed suit to recover the lumber. . . The contract for the purchase of the lumber sued for was in parol. No note or memorandum in writing was ever made, nor any written contract -whatever between the plaintiff and the defendant with reference to this trade Yas ever signed. When he' came to our office in October, 1917, for a settlement he claimed that he had shipped the 200,000 feet called for by his contract, but our books showed that we had received only 196,836 feet. We had a settlement with him at that time. We deducted the sum of all the money we had advanced to him from what we owed him for this-196,836 feet and found that we owed him $375.46, and on that date 'gave him a check for that amount. This payment balanced our books. If he-had shipped us the lumber sued for, we would have owed him the full purchase-price for it. . . In this agreement with defendant we reserved the right to reject any lumber that did'not come up to specifications of,the written contract, and if he had shipped this lumber to us we would have had the right to reject any that did not so come up to that standard. The lumber was subject to our measurements at Chatsworth. We never accepted it when .we estimated the measurement on the yard,' but bought it subject to measurement and grade when delivered at Chatsworth. If we should -recover the lumber sued for, we would owe the defendant the full purchase-price.” At the conclusion of the plaintiff’s evidence the judge awarded a nonsuit. '

      H. H. Anderson, for plaintiff, cited:

      Ray v. Schmidt, 7 Ga. App. 380 (3); Consignees Favorite Box Co. v. Speer, 5 Ga. App. 156; Civil Code (1910), 4106; Heard v. Coggins, 134 Ga. 52 (2); Cen. Ry. Co. v. Gortatowsky, 123 Ga. 366, 374-5.

      J. G.’B. Erwin Jr., for defendant, cited:

      Mitchell v. Ga. & Ala. Ry., 111 Ga. 760; Brunswick Grocery Co. v. Lamar, 116 Ga. 1; Lloyd v. Wight, 25 Ga. 215; 38 Cyc. 2044, 2008.
   Wade, C. J.

Under the facts -developed in this case the court did not err in awarding a nonsuit. The application by the plaintiff of the sum paid the defendant as 'part of the purchase-price of the lumber in .question to an entirely different contract between the parties, by and with the consent of the defendant, amounted to a withdrawal or rescission of the partial payment made under «the parol agreement, and rendered the contract for the sale of - the lumber (valued at more than $5.0) unenforceable under the statute of frauds, to which it constituted no exception. In the case of Ray v. Schmidt, 7 Ga. App. 380 (3) (66 S. E. 1035), cited-by counsel for the plaintiff, not only had the timber been inspected, measured, marked, and branded by both seller and purchaser, but the agreed price had been fully paid. Here, before the action of trover was brought, the partial payment, made on the agreed price of the timber in question, which had been “checked” but not' delivered or accepted, was withdrawn by the vendee and applied to the purchase-price of other timber from the same defendant under a different contract.

Judgment affirmed.

Jenhins and Luke, JJ., concur.


text:
    9787.
    Mackle v. Anthony.
    Decided October 16, 1918.
    Complaint; from city court of Atlanta—Judge Beid. April 16, 1918.

      Norman I. Miller, for plaintiff in error.

      Virlyn B. Moore, contra.
   Luke, J.

.The petition as amended (which was a suit on a promissory note) was not subject to the demurrers urged, and the court did not err in overruling the general or the special demurrer.

Judgment affirmed.

Wade, O. J., and. Jenhins, J., concur.


text:
    9841.
    Brock v. Marable.
    Decided October 16, 1918.
    Certiorari; from Bartow superior court—Judge Tarver. April 16, 1918. .

      William T. Townsend, for plaintiff in error. .

      James B. Whitaker, contra.
   Luke, J.

The only issue raised by this writ of error is a question of fact. There was evidence to authorize the judgment of the trial court, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Wade, C. J., and Jenhins, J., concur.


author: Wade, O. J.

text:
    9856.
    Odom Realty Company v. Central Trust Company.
   Wade, O. J.

1. A blank indorsement is subject to explanation by parol testimony. Civil Code, § 5796; Cobb v. Johnson, 126 Ga. 618 (55 S. E. 935); West Yellow Pine Co. v. Kendrick, 9 Ga. App. 350, 352 (71 S. E. 504); Proctor v. Royster Guano Co., 21 Ga. App. 617 (94 S. E. 821). Where, however, as in the ease under consideration, the indorsement is one “in full,” though followed by the words “without recourse,” parol evidence is not admissible to explain or vary its plain and unambiguous terms. See Meador v. Dollar Savings Bank, 56 Ga. 605; Youngberg v. Nelson, 51 Minn. 172 (53 N. W. 629, 38 Am. St. R. 497); Cross v. Hollister, 47 Kan. 652 (28 Pac. 693 (2). The phrase “without recourse,” added to the full indorsement, restricts it in certain particulars, but does not in anywise effect the parol'-evidence rule stated above. Youngberg v. Nelson, supra; 3 R. C. L. § 184, p. 974 (notes 16, 17).

Decided October 16, 1918.

Certiorari; from Bibb superior court—Judge Mathews. April 25, 1918.

L. D. Moore, for plaintiff in error. B. S. Wimberly, contra.

2. An indorsement of a promissory note is a. warranty to every subsequent holder in good faith that the instrument and all antecedent signatures are genuine; and even where a prior signature is a forgery, the indorser is at once liable upon his warranty to subsequent holders, without any presentment for payment or notice of non-payment. 3 R. C. L. § 381, p. 1164; Turnbull v. Bowyer, 40 N. Y. 456 (100 Am. D. 523). The indorser of a forged bill is liable fo,r the consideration which has failed, without proof of demand. Hamer v. Brainerd, 7 Utah, 245 (26 Pac. 299, 12 L. R. A. 434). See also 7 Cyc. 961; Daniel on Negotiable Instruments, § 669.

3. The judge of the superior court did not err in sustaining the certiorari, and in rendering judgment in favor of the plaintiff, since the evidence (after the proper rejection of the proffered parol testimony to explain the indorsement of the payee) demanded a verdict for the plaintiff, therefore rendering it useless to remand the ease for a rehearing, since no question of fact was involved with the parol evidence excluded.

Judgment affirmed.

Jenhins and Luhe, JJ., concur.


text:
    9860.
    Borders et al. v. Chapman.
   Wade, C. J.

Where a purchase-money note for a mule is unambiguous and unconditional, and contains no warranty of the soundness of the mule, and recites that it has lost one eye, no express warranty can be added by parol; and a plea which set up an express warranty, alleged to have been made by parol contemporaneously with the execution of such a note, that “the other eye of said mule was absolutely sound and all right,” and that the mule soon thereafter became totally blind, was properly stricken on 'demurrer. Fleming v. Satterfield, 4 Ga. App. 351 (61 S. E. 518). The agreement between the parties being reduced to writing and appearing to be a complete and certain' agreement importing a legal obligation, it must, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contained the whole of the agreement between the parties.

Decided October 16, 1918.

Complaint; from Warren superior court—Judge Walker. May 30, 1918.

M. L. Felts, for plaintiffs in error. L. D. McGregor, contra.

Judgment affirmed.

Jenkins and Luke, JJ., conctir.


text:
    9868.
    Phillips v. Suber.
    Decided October 16, 1918.
    Certiorari; from 'Fulton superior court—Judge Pendleton. ■ May 34, 1918. ,

      Don K. Johnston, for plaintiff in error. T. J. Ripley, contra.
   Luke, J.

The issues presented in this case are simply questions of fact, which have been passed upon by a jury. There was evidence to. authorize the verdict. Eor none of the reasons, assigned did the court err .in overruling the certiorari.

'Judgment affirmed.

Wade, G. J., and Jenkins, 'j'., eoneur.


text:
    9900.
    ATLANTA, BIRMINGHAM AND ATLANTIC RAILWAY COMPANY v. PONCELL.
    The jury were authorized to find that the presumption of negligence on the part of the railroad company, which arose on proof of the killing of the plaintiff’s cow by a train of the company, was not rebutted by the evidence introduced by the defendant. The testimony of the fireman of the locomotive authorized the inference'that he was' not exercising due care.
    Decided October 16, 1918.
    Action for damages; from city court of Way cross—Judge Crawley. April 37, 1918.

      Bolling Whitfield, J. L. Sweat, for plaintiff in error, cited:

      Atlantic Coast Line R. Co. v. Cox, 11 Ga. App. 384; Cen. Ry. Co. v. O’Neal, 11 Ga. App. 461.

      Parher & Parlcer, contra, cited:

      So. Ry. Co. v. Carter, 139 Ga. 336; So. Ry. Co. v. Lang, 11 Ga. App. 8; So. Ry. Co. v. Patton, 10 Ga. App. 678; Cen. Ry. Co. v. Dozier, 117 Ga. 793; Civil Code (1910), § 3780.
   Wade, C. J.

The killing of tbe cow by tbe running of tbe cars of tbe defendant company was admitted, and tbe only question involved is whether the presumption of negligence thereupon arising was sufficiently rebutted. The jury found against the defendant, and the trial judge approved their finding. The engineer in charge of the locomotive testified, that his place was on the right-hand side of the engine, and that the cow came upon the track from the left-hand side, which was partially obscured from his view by the boilér of the engine; that when the animal came within his line of vision it was so close to the locomotive that it was impossible to do anything whatsoever to prevent the killing, for he did not have time to move his hand to the brake-valve if he had attempted to do so, as only about a second elapsed from the time he saw the cow until the engine struck it; that he was expected to watch the left-hand side of the track as best he could; that he could see nothing on that side for a distance of 100 to ISO feet" ahead of him, as the boiler cut off the view, but he could see anything beyond that distance, on both sides; as far as the head-light shone. From this testimony it was apparent that the injury was not brought about through any negligence on the part of the engineer. The testimony of the fireman disclosed, however, that it was the file-man’s duty to watch down the track when sitting on the seat,on. the left-hand side of the engine, and to report to tne engineer any obstruction coming within his line of vision; that he was occupying this- seat and looking straight ahead at the time the cow was struck, but saw nothing except the track and certain switch-lights; that he never saw'the cow at all until the next morning, and did not know which side she came from, or that the engine had struck her, except from what the engineer said; that he was on the lookout for signals and was watching the track, and was not looking for stock at all, and did not have his mind on stock at that time, but if he “had been looking directly for a cow,” he might have seen her. From this testimony the jury could have legitimately inferred that the fireman was not exercising proper care at the time of the injury by looking down the track as he testified, since, under his evidence, had he been so looking, he must inevitably have seen the cow on or approaching the track from his side; and hence the jury was authorized to find that the presumption of negligence was not satisfactorily rebutted. The question is a close one, but, under numerous rulings of the Supreme Court and of this court, we do not feel justified in setting the verdict aside.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9902.
    Culpepper v. Hall.
    Decided October 16, 1918.
    Complaint; from Colquitt superior court—Judge Thomas.: May 11, 1918. ' ■

      P. Q. Bryan, J. L. Dowling, E. B. Askew, for plaintiff in error. Parker &. Gibson, contra.
   Luke, J.

1. Grounds of objection urged as to the admissibility of evidence' during the trial of a case should be set forth in the motion for a new. trial, where the motion complains of the overruling of the objections; and it is not a sufficient assignment of error merely to aver that certain testimony was admitted “over the objection” of the complaining party, without stating what particular objection was urged at the tima

2. Upon the issue of fact raised in this case the evidence authorized, the verdict, and for none of the reasons. assigned did the court err in overruling the motion for a new trial.

Judgment affirmed,

Wade, G. J., and Jenkins, J., concur.


text:
    9911.
    Cox v. Giddens.
    Decided October 16, 1918.
    Levy and claim; from city court of Nashville—Judge Christian. June 13, 1918.

      R. A. Hendricks, for plaintiff in error.

      J. D. Lovett, W. D. Buie, contra.
   Wade, C. J.

There is no merit in the various special grounds of the motion for a new trial, and there was evidence to support the verdict.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Bloodworth, J.

text:
    9454.
    DUDLEY v. TAYLOR & MORRIS.
    Where there. has been no actual delivery of personal property' and no agreement as to the price, but vendor and vendee agree to meet at some future day, when the vendee is to inspect the property and a price is to be agreed upon, the contract is executory, title to the property remains in the vendbr, and the property is subject to a judgment obtained against the vendor.
    Decided October 16, 1918.
    Levy and claim; from city court of Sandersville—Judge Jordan. December 1, 1917. '

      J. J. Harris, foi plaintiff in error. Evans & Evans, contra.
   Bloodworth, J.

On February 14, 1913, an execution in favor of Taylor & Morris and against Wicker was levied on certain personal property found in the possession of Wicker and levied on as his property. Wicker was a tenant of Dudley and indebted to him. Dudley testified in part as follows: “I am the claimant in this cáse. The defendants in fi. fa, at the time of'the levy were tenants of mine on place in this county. The property levied on was purchased by me from Jenkins Wicker in January, 1913, sometime during the first week in January. Jenkins was in debt to me as his landlord for supplies, etc., and came to me in Sandersville in the early part of January, 1913, and turned over to me on his debt all the property described in this levy. .The same was to be credited upon his account. At the time I had never seen the property and no amount was agreed upon between us. I told him that I would go down and look at it. No credit has ever been made upon his account. Before I could go down to the place this levy was made. I filed this claim, and nothing further has been done. The agreement between Jenkins and myself was that I should credit his account with the reasonable value of the property. We did not' determine at the time any- definite price, but the property was turned over to me under our agreement, and I was later to credit the account with its reasonable value.- The property has never been in my manual possession. He did not bring it to Sandersville, and I had never seen the property when this levy was made.” Wicker’s evidence was substantially the same as that of Dudley.

From the above it appears that there had been po actual delivery of the property to Dudley, nor any agreement as to the price thereof. Granting that there was a constructive delivery, it is clear that there was-no agreement as to the price. The property was not to go to Dudley in full settlement of the indebtedness of Wicker, but its value, when determined at some future time, was to be credited thereon. '.This amounted only to an agreement that Wicker at some time in the future, and at a price then to be agreed upon, would sell to Dudley the property. Before a sale of personal property is complete, the statute provides not only that there must be “consent of the parties” and “an identification of the thing sold,” but also “an agreement as to the price to be paid.” Civil Code (1910), § 4106. Under the law and the facts of this case the sale from Wicker to Dpdley was executory, the title to the property was still in Wicker at the time of the levy, and the court properly directed a verdict in favor of Taylor & Morris.

Judgment affirmed.

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