text:
    8379.
    ATLANTIC COAST LINE RAILROAD CO. v. DRAKE.
    1. In a suit on account it is not necessary that the plaintiff’s proceeding show whether it is based upon an express or upon an implied contract.
    2. While the placing of cross-ties on the right of way of a railway company for its acceptance and use, and their subsequent removal by some one, might create a presumption that the ties had been accepted and used by the company, and a corresponding obligation on its part to pay therefor, yet, where the company duly inspects the ties, expressly rejects them as unsuited to its needs, and so notifies the person offering them for sale, the bare fact that the ties were subsequently removed by some one, it not appearing when, how, or by whom, does not create any such presumption against the company.
    3. Where, after a railroad company has inspected and rejected a lot of cross-ties offered to it at a point on its right of way, they are removed by some one, and similar tics are thereafter discovered at other places along the right of way, apparently so placed for use by the company, but the ties so discovered are in no way identified as a part of the rejected lot, and it does not even appear whether they were so placed before or after the unexplained removal of the rejected ties, the discovery Oof such similar ties is without evidentiary value as a circumstance to connect the company with the removal of the particular ties previously offered to and rejected by it.
    4. If material to the issue between the parties, the uneontradieted testimony of an unimpeached witness can not in any case be arbitrarily disregarded by any tribunal, whether judge or jury, whose duty it is to consider the evidence and decide the issue in accordance therewith. Where, therefore, as a result of proved facts, only a prima facie presumption arises that certain additional facts exist in favor of one party, and positive, unequivocal, and uncontradicted testimony is introduced in behalf of the other party, emphatically denying the facts thus presumed, such presumption is legally rebutted and can not prevail against such testimony.
    5. In view of the rulings announced in the foregoing headnotes, the evidence in this case did not authorize any verdict in favor of the plain-6 tiff, and the trial judge erred in overruling the defendant’s motion for a new trial. .
    Decided October 31, 1917.
    Appeal; from Decatur superior court — Judge Cox. December 18, 1916. ■

      Pope & Bennet, Hartsfield & Qonger, for plaintiff in error.

      M. E. O’Neal, T. S. Hawes, contra.
   Luke, J.

This case arose as a suit on account in a justice’s court, the articles alleged to have been sold by the plaintiff, Drake, to the railroad company being two lots of cross-ties, one on December 15, 1913, the other on March 30, 1914, at prices therein stated. The defendant denied that it was indebted to the plaintiff in any amount or manner. Dpon the trial in the justice’s court the magistrate rendered judgment in favor of the plaintiff, for the full amount claimed. The defendant thereupon appealed to a jury in the superior court, where upon the trial a verdict was returned in favor of the plaintiff for the same amount. The defendant’s motion for a new trial was thereafter overruled, and it brings a writ of error to this court.

The evidence in the case is very brief. J. W. Drake, the plaintiff, testified that he was in the tie business, and had a camp at' Donalsonville, on or near the company’s right of way; that the company’s inspector, Giles, inspected the ties, accepted some of them (about which there is no controversy), and rejected 483 of them; “that he was not present except for a few minutes on one occasion in December when the tie train was loading these ties; that the last time he saw the cull ties they were scattered among a large pile of good ties, and that about three of four days after the tie train had been there to remove the ties ... he found the cull ties to have, been removed by some one. He later walked down the Coast Line Eoad between Donalsonville and Iron City and discovered in one place one cull tie, in another place three cull ties, and in another place five cull ties, in a distance of a little more than a mile. He did not know where these cull ties came from. The cull ties were worth 30 cents each.” E. A.Drake testified,“that there was a large quantity of cull ties among the good ones, and. that they, later, after the train had been there, had been removed by some one, he did not know how or by whom.” One Alday testified that he was with the plaintiff on the occasion of the walk down the railroad, and “that he saw eight or ten cull ties' in various places along the road.” There was no other evidence of any character for the plaintiff. The company’s roadmaster, Giles, testified, -as a witness for the defendant, that no employee of the company was authorized to move any ties from the Drake camp without an order from him; that he had not ordered the removal of any of the cull ties in question, but had ordered that they be left at the camp. Another witness, Huff, testified, “that he was in charge of the work train that moved the ties from the Drake camp in January; that he personally superintended the loading; that he knew no cull ties were loaded upon his train; and that his was the only tie train which moved any ties from that camp.” Two other employees of the company testified that they had assisted in the removal of the ties from the Drake camp in January and February, and that no cull ties had been removed on those occasions. The company’s section foreman, Pace, whose section includes the towns of Donalsonville and Iron City, testified “that.he had specific instructions not to use any cull ties, and that he did . not use, or allow to be used, any cull ties in his division, and that none were brought and distributed there so far as he knew, and that he had paid special attention to this matter: Cull ties were .used in side track at Iron City. I saw some cull ties in a pile on the main line in my section mixed with good ties.”

1. The plaintiff’s proceeding in the justice’s court follows the forms usual in suits on account. It contains nothing to indicate that it is based upon an implied, rather than an express, contract. The plaintiff’s evidence, however, seeks only to establish an implied contract, a right to recover on a quantum valebant. But this apparent variance does not in fact constitute a legal or material variance between the allegations and the proof. Civil Code (1910), §§ 5513, 5572, 5573. This is especially true as applied to pleadings in a justice’s court, because there the same degree of particularity is not required as in those courts where suits are commenced by petition. Davis v. Bibb County, 116 Ga. 23 (2) (42 S. E. 403). Even in the superior court, where, in a petition, the plaintiff is required to set forth his cause of action plainly, fully, and distinctly (Civil Code, § 5538), and where an allegation of a promise to pay might with a greater degree of reason be said to import an express promise, the allegations may be established by proof of an implied promise. Jackson v. Buice, 132 Ga. 51 (63 S. E. 823).

2. The controlling question in this case is whether or not the evidence, as a whole, authorizes the conculsion that the defendant company accepted the ties in question and thereby impliedly promised to pay the reasonable value thereof. Civil Code (1910), § 5513. To put .it- more pointedly still, the controlling question is: Did the company remove the ties ? To prove that it did, the plaintiff relies wholly upon circumstantial evidence. In Central of Georgia Railway Co. v. Pitts, 16 Ga. App. 314 (85 S. E. 285), which is a somewhat similar case, this court held: .“Though the placing of cross-ties at a switch on the line of a railway company for its acceptance and use, and their subsequent removal by some one, might create a presumption that the ties had been accepted and used by the company, and a corresponding obligation on its part to pay therefor, yet where positive, unequivocal, and uncontradicted testimony denies that the ties were evbr inspected or received by the company, this presumption is legally rebutted.” In that ease it does not appear that there was any inspection of the ties by the railway company or any rejection of the seller’s offer, and therein lies the chief distinction between that ease and this. Silence, under the circumstances there indicated, together with the subsequent removal of the ties by some, one, is what raised the prima facie presumption that the railway company had accepted, removed, and used the ties. Such a presumption, arising from such proved facts, does no violence to any one, imputes no wrongful act or intention to any officer or agent of the railway company. But in the case at bar the company was not silent. On the contrary, it caused the ties offered by Drake to be duly inspected, expressly rejected them as unsuited to its needs, and so notified him, leaving the ties where it had found them, and they were thereafter removed by some one. When, how, or by whom they were removed does not appear; nor does it appear that the company’s requirements underwent any change. These facts do not create any such presumption. Standing alone, they do not create any presumption in favor of the plaintiff or against the defendant. In other words, since there is no evidence to show when, how, or by whom the ties were remqved, and nothing to show any reconsideration by the company of the plaintiff’s offer, the bare fact of the removal of the ties by some one is insufficient to raise the presumption either that the company so changed its mind or its requirements as to accept the ties after they had been rejected, or that its agents wrongfully took and carried them away. On the contrary, the company’s agents are presumed to be innocent of any such wrongful taking until their guilt is proved beyond a reasonable doubt (Sanders v. Johnson, 29 Ga. 528), and the state of things which rendered the ties unacceptable to the company at the time it rejected them is presumed to continue until a change or some adequate cause of change is made to appear. Anderson v. Blythe, 54 Ga. 508; Coleman & Burden Co. v. Rice, 105 Ga. 164 (31 S. E. 424).

3. The plaintiff contends, however, that, coupled with the fact of the unexplained removal of his ties by some one, is the further fact that similar ties were susequently discovered along the company’s right of way, and that the two circumstances together, create the presumption that the company accepted and removed the particular ties which it had theretofore rejected. But the ties that were so discovered are not identified as any part of the lot in question, nor does it even appear whether they were so placed before or after the unexplained removal of the rejected ties. This further circumstance is therefore wholly without evidentiary value. As held by this court in the case of Ga. Ry. & El. Co. v. Harris, 1 Ga. App. 714 (57 S. E. 1076), “Where a plaintiff in a civil ease supports his action solely by circumstantial evidence, before he is authorized to have a verdict in his favor the testimony must be such as to reasonably establish the theory relied upon, and to preponderate to that theory rather than to any other reasonable hypothesis.” Again, under the decision of the Supreme Court in the case of Central Railroad &c. Co. v. Dottenheim, 92 Ga. 425 (17 S. E. 662), it is to be presumed that the trial court would have excluded the testimony as to the discovery of similar ties along the company’s right of way had a proper and timely motion to that end been made. .Though admitted without objection, such evidence is without probative value, because it is not sufficiently connected with the particular matter in controversy here.

4. The fourth headnote needs no elaboration. It is merely the application of a well settled rule of law to the facts of this case, or rather to what would have been the facts of this case had the

plaintiff carried the burden of establishing a prima facie case in his favor; which he may do on the next trial. In the case of Central of Ga. Ry. Co. v. Pitts, supra, the principle is applied to a cause similar to that involved in this case. The same principle has been repeatedly applied to actions against railway companies for injuries done by the running of their locomotives, etc., where, by statute, proof ' of the injury raises against the company a prima facie presumption of negligence; but ■ it has been invariably held that, where the plaintiff relies on such presumption alone, and there is positive, unequivocal, and uncontradicted evidence affirmatively showing that the company was without fault, such presumption is legally rebutted. See Park’s Ann. Code, § 3780, and citations following catchword “Eebutted.” . Again, the possessor of property, whether realty or personalty, is prima facie presumed to be the owner thereof; but this presumption may always be rebutted by positive evidence showing a better title in the other party, and the presumption alone will not withstand such evidence. Park’s Ann. Code, §§ 4473, 4483, and citations. Another familiar application of the same rule is to be found in claim cases, where, by statute, the possession of the property at the time of the levy creates a prima facie presumption .that such possessor, whether claimant or defendant in fi. fa., is the true owner thereof (Civil Code (1910), § 5170); yet such presumption, standing alone, can never prevail over positive, unequivocal, and uncontradicted evidence of title in the other alleged owner. Green v. Wade-Chambers Grocery Co., 19 Ga. App. 454 (91 S. E. 789). Illustrations of the application of this rule could be multiplied until the entire category of prima facie presumptions is .exhausted, but further illustrations are wholly unnecessary.

5. The plaintiff' was not, under any view of the evidence, entitled to a verdict in his favor. The trial court, therefore, erred in overruling the defendant’s motion for a new trial.

Judgment reversed,

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


source: Caselaw Access Project

author: JeNkins, J.

license: Public Domain

text:
    8439, 8440.
    FAIRMONT CREAMERY COMPANY v. COLLIER et al.; and vice versa.

    1. An. executory contract of employment of an agent, which contains a stipulation that a part of his commissions on sales shall be applied in payment of a pre-existing debt due to the principal, does not remain in effect after the agent’s discharge in bankruptcy from such previous indebtedness, so that its continued compliance could be thereafter enforced; but so long as the parties, by subsequent acquiescence in its terms and performance of its conditions, elect to treat the contract as still subsisting, they are bound by its provisions. -
    2. A novation of the nature or terms of a contract, made without the consent of the surety thereon, works a discharge of the surety.
    Decided October 31, 1917.
    Complaint from city court of Atlanta — Judge Eeid. December 13, 1916.
    Fairmont Creamery Company sued Spratling as principal, and Collier- as surety, on a bond given for the faithful performance of Spratling’s duties as plaintiff’s agent. The contract of agency was embodied ip the plaintiff’s letter to Spratling, under date of March 30, 1913, stating in part as follows: (a) “We will ship the butter to you at Atlanta, prepaying the freight on same, the 15^£¡ oz. print of Better Butter solids to net us 3c over Elgin; the Better Butter quarters to net us 3%c over Elgin; . . we to wire you the market each Monday . .” (5) “You are to collect for the goods sold as billed,-deposit the same in a bank to be selected by our Mr. Sumner, to our credit, sending us the deposit slips. . .” (c) “You to give us a bond . . that you will make proper accounting, of all goods and money entrusted to your care.” (d) “Out of the overage, which is to be your commission, half cent per pound to be applied on your debt to us until the same is paid.” The bond referred to in this letter, and on which this suit is brought was entered into on June 13, .1913. This bond is in the penal sum of $5,000, and recites as its condition: “Whereas the above-bound F. J. Spratling has been appointed the agent of the Fairmont Creamery Company, of Omaha, Nebraska, for the selling of merchandise, for the billing out of same on blanks' furnished by the Fairmont Creamery Company, and for the collection of the. accounts of customers to whom said ’ merchandise has.been sold, and for the deposit of said collections in a local bank to be specified by the said Fairmont -Creamery Company.” It further recites that “if the said F. J. Spratling shall faithfully perform the stipulation as above stated, and render a true account of his doings therein to the proper authority when required thereby, and shall promptly pay over to the person entitled therteo all the money which may come into his hands hy virtue of his said office, and shall faithfully account for all the balance of money remaining in his hands at the termination of his said office, and shall hereafter exercise all reasonable diligence,” etc., “then this bond to be void.” No direct reference is made by the bond to the letter quoted from.
    Previously to this employment the principal had become indebted to the plaintiff on an unsecured open account, and this is the debt referred to in the last provision of the contract as quoted. Attached to the petition was an itemized statement of the plaintiff’s demand, with credits by sums deposited to its credit, and by commissions, leaving a balance of $462.35, which was the amount sued for. It appeared from the evidence that this balance was in fact composed of three items which Spratling denied owing, to wit: (a) $141 for butter appropriated by Lowry Fruit & Produce Co., at whose place Spratling stored the butter, but which Lowry claimed he took for payment of a debt due him hy Spratling, with Spratling’s consent; (&) $22.50 commissions claimed for sale of butter to C. J. Kamper Grocery Co.; and (c) $298.85, being deductions from Spratling’s commissions from April to September, 1914, inclusive, claimed by the plaintiff under the clause of the contract permitting deductions at the rate of one half cent per pound to apply on the old debt, which deductions Spratling claimed were illegal, because of the fact that in April, 1914, he filed his petition in bankruptcy, properly scheduling this old debt, and was duly discharged therefrom. The evidence showed, that, from the signing of the bond sued on as entered into on June 13, 1913, Spratling entered upon his duties as the agent of the plaintiff, and so continued to sell butter on commission for plaintiff until September 14, 1914; that during this entire period, at the end of each mopth, the company deducted the one half cent per pound out of his commissions and applied the deduction to the old debt; that about the tenth day following the previous month a statement was invariably mailed to Spratling, showing amount of commission earned, amount applied to debt, and net amount due, for which a cheek of the company was enclosed; that these checks were cashed each month by Spratling, and no complaint was made; and that on April 6, 1914, just one day prior to the filing of his petition in bankruptcy, Spratling wrote to the company a letter containing the following: “It looks now as though I will be compelled to take benefit of the bankrupt law. So do not be surprised to get notice of it at any time. Mr. Wilson and Mr. Howe both will remember what I told them. If this is done it will be the best for you, no doubt of that, and best for me.” After bankruptcy Spratling continued in the employment of the company as usual, received his statement each month containing the item, “Credited to your account-dollars,” as theretofore, cashed his check with the one half cent per pound deducted by the company, and made no complaint or suggestion that because of bankruptcy he no longer was under obligation to have the one half cent per pound thus applied, until after the termination of his contract with plaintiff on September 14, 1914. Spratling then furnished a statement dated September 81, 1914, in which for the first time he claimed credit for the several amounts which had been deducted by the company from his commissions and applied on the old debt after the date of filing the bankruptcy petition.
    The jury found for the plaintiff on the first item, that is to say, $141 and interest. The court ruled, as a matter of law, that the plaintiff could not recover on the.other two items. So far as the main bill of exceptions is concerned, it is only the item of $898.85 which is now in dispute.
    The surety on the bond further pleaded, by amendment, that he became surety under the contract of agency, wherein it was provided that the plaintiff should ship butter to Spratling to be sold by him at prices fixed by the contract; but that afterwards, without the surety’s consent, the plaintiff varied the terms of said contract by authorizing Spratling to sell at lower prices, and that such change in the terms of the contract enabled Spratling to sell and collect for twice as much butter as he would otherwise have done; and that by reason of this fact the surety thereby became discharged from all liability under the bond. The trial judge overruled this contention; on which ruling the surety brought a cross-bill of exceptions. The plaintiff contended that since there was nothing in the contract signed by Collier and Spratling, on which suit was brought, which compelled the plaintiff to maintain any fixed price for the sale of its goods by Spratling, and sir the letter of March 20, 1913, was not made a part of the contract, it made no difference at what prices Spratling was allowed to sell the butter; and that the permission which it was shown had been given by the plaintiff, allowing the agent a different price at which to sell the butter, would not relieve the surety on the bond. The plaintiff contended also that, there was no evidence showing that the risk of the surety was in fact increased by such lowering of prices. "

      Walter 8. Dillon, for plaintiff.

      Hines & Jordan, Daley, Chambers & Daley, for defendant.
   JeNkins, J.

(After stating the foregoing-facts.)

1. 'While many courts and legislative bodies refer to a debt, from the liability of which the debtor has been discharged in bankruptcy, as having been extinguished, such expressions are not entirely exact and literally correct, since the discharge, strictly speaking, only operates as a bar to an action on the debt, and thus goes merely to the remedy. Black on Bankruptcy, § 710. If the existence of the debt and the moral obligation to pay it did not remain, there would be no consideration upon which a subsequent promise to pay could be founded, as is provided for by the Civil Code (1910),.§ 4384. Under this provision such a promise must bé in writing, and it has. been held by our Supreme Court that in order to be effective it must be clear, express, distinct, unequivocal, and without qualification or condition. Moore v. Trounstine, 126 Ga. 116 (54 S. E. 810, 7 Ann. Cas. 971). If after a discharge from the debt in bankruptcy Spratling had made a payment thereon in consideration of his moral obligation, suit would not lie in his behálf to recover the payment thus actually made, although of course, in the absence of a clear and distinct new written promise to pay, suit could not be maintained for the debt so discharged. The plaintiff in error does not' take the position that Spratling by his agency contract created a lien on his unearned commissions on future sales.. Such an attempted assignment of wages earned after the filing of the petition could not be enforced after the bankrupt had been granted a discharge. In Re Home Discount Co., 17 Am. Bk. R. 169, 180 et seq. (147 Fed. 538); Collier on Bankruptcy, 9th ed. 362, 363, 364; In Re Harrington, 29 Am. Bk. R. 669 (200 Fed. 1010); In Re Sims, 23. Am. Bk. R. 899 (176 Fed. 645); In Re Lineberry, 25 Am. Bk. R. 164, 166 (183 Fed. 338); Loveland on Bankruptcy, § 288. What the plaintiff does insist upon is, that, since an adjudication in bankruptcy does not sever contractual relations as such, but since they continue in force except in so far as they may have become merged into provable claims (Remington on Bankruptcy, §§ 541, 2675, 2729), and since the contract was not taken over by the trustee, nor any liability thereunder liquidated and the contract discharged, the executory contract of employment as originally made continued in full force and effect, and that if the contract of employment continued of force at all, it remained operative in all of its terms and provisions, including the one requiring ..that a certain portion of the commissions be applied on the. pre-existing debt. This they urge must be the ease, since courts can not" make new contracts by cutting out particular provisions and leaving others. We can not think that this position of the plaintiff as applied to the instant case is altogether sound, and that such a contract should be treated as remaining of full effect in the sense that courts- would enforce continued compliance. The consideration of the contract as affecting the defendant became altered by the discharge in bankruptcy from the pre-existing debt, since the payments which were to be made thereon as originally provided went in payment of a legal debt; whereas subsequent to the discharge they would go merely in satisfaction of a moral obligation. In this particular case, the contract being a continuous one specifying no time at which it was to terminate, and no time being fixed by law or usage, it could have been terminated at the will of either party with notice. Electric Ry. Co. v. Coal Co., 98 Ga. 190, 192 (26 S. E. 741); Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695, 703 (58 S. E. 200). But suppose it had been a contract which by'its terms was to remain of force for a definite term embracing a number of years, could it be said that after the discharge of the indebtedness, the payment of which supplied a part of the consideration of the agreement, the contract should be subsequently enforced and made to continue because the discharged indebtedness still existed merely as a moral obligation ? We do not think this should be the rule. But- while it would thus seem that after the discharge-of such a pre-existing debt as a legal obligation the defendant might in any ease repudiate the contract of employment where payments on the debt constituted a part of the contract of employment, still we can see no reason why the parties to the agreement might not, if they both see fit, continue its operation; and in so far as they might actually do so by acquiescence in its terms and performance of its conditions, we think such conduct amounts to an election to treat the contract as valid and still subsisting. This appears to have been done in the instant case, since after bankruptcy Spratling continued in the employ of the company as usual, received his statement each month containing the item “Credited to your account -dollars,” as theretofore, cashed his check with the one half cent per pound deducted by the company, and made no complaint or suggestion that because of bankruptcy he no longer was under obligation to have the one half cent per pound thus applied, until after the termination of his contract with plaintiff on September 14, 1914. We think this amounted to such acquiescence and performance on the part of each of the parties as would operate to keep the original contract of force. If the effect of such acquiescence could be taken as setting up a new agreement upon the same terms as the old, and so performed, the effect would be the same, at least so far as the principal defendant is concerned. Under this view of the law, it was error when the skilled and eminent judge ruled as a matter of law that plaintiff could not recover for the item of $298.85.

2. We think the plea of discharge entered by the surety was meritorious. The evidence of Spratling showed that “The effect in the change of the terms of the contract whereby I was authorized to sell on the lower margin enabled me frequently to double my sales. I made collections for the sale under that contract.” He also testified that the change in the contract “enabled me to price it to the customer at a less price, and I was enabled to sell about twice as much butter.” In Little Rock Furniture Co. v. Jones, 13 Ga. App. 502 (79 S. E. 375), this court said: “A change of the nature or terms of a contract is called a novation. Such novation, without the consent of the surety, discharges him. Civil Code (1910), § 3543; Bethune v. Dozier, 10 Ga. 235. This rule will not be altered by the fact that the change in* the contract, which was made without the knowledge or consent of the surety, nevertheless inured to the benefit of the principal and the surety. If the change is made without the knowledge or consent of the surety, the surety’s complete reply is non hsee in foedera veni. Hill v. O’Neill, 101 Ga. 832 (28 S. E. 996). The above stated rule applies to guarantors as well as to sureties; and any material alteration in the original contract, without the knowledge or consent of the guarantor thereof, would relieve him from the guaranty. Johnson v. Brown, 41 Ga. 498.” See also Civil Code (1910), §§ 3540, 3544. The contract of employment as originally made purported to state the precise terms under which sales should be made; it allowed for no variation or alteration by subsequent authority which might be given the agent. This was the contract which Collier undertook to guarantee, whereas the alleged shortage arose from sales made under a different and subsequent agreement, and without the consent of the surety. Counsel for the defendant in error in the cross-bill urge that the lowering of prices authorized by the contract of employment did not discharge the surety on the bond, since the bond itself did not obligate plaintiff to maintain any fixed price for the sale of the goods by Spratling, and the letter of March 20th, 1913, by which the terms of employment were made and the prices fixed, was not made a part of the bond. Since, however, the bond was executed in accordance with the stipulations of the letter, and since the bond refers to the contract as actually made, we think the provisions of the contract are relevant to a suit on the bond. International Harvester Co. v. Morgan, 19 Ga. App. 716 (92 S. E. 35). Indeed, were no recourse had to the terms of the contract, there is nothing in the bond itself which could be taken to hold the surety in any way liable for a failure to remit the amounts payable on the.old indebtedness; and were he not bound by this provision, it is probable that there would be no remaining liability under the bond.

Judgment reversed on main and cross-hill of exceptions.

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


author: Jenkins, J.

text:
    8509.
    Sweat et al. v. Mohr & Sons.

   Jenkins, J.

Section 5656 of the Civil Code (1910), which provides for the opening of defaults, and which, under an act of the General Assembly of 1914 (Ga. L. 1914, p. 191, sec. 38), is applicable to the city court of Blacksliear, authorizes the judge, within his legal discretion, upon payment of costs, to allow a default, to he opened at the trial term, for the reasons therein stated. Such opening of a default'becomes a matter express!y within the discretion of the trial- judge, after the défendant has conformed with the condition imposed by this section. Brawner v. Maddox, 1 Ga. App. 332 (58 S. E. 278). The payment of costs being an imposed prerequisite, and the defendants in this case not having paid them, but merely offering to do so upon the default being opened, the trial court had no discretion in the matter; and it was therefore not error, on motion of counsel for plaintiffs, for the court to dismiss the application and the answer filed therewith at the trial term, and thereafter enter up judgment in favor of plaintiffs against defendants for the amount sued for. Ingalls v. Lamar, 115 Ga. 296 (2), 299 (41 S. E. 573).

Decided October 31, 1917.

Complaint; from city court of Blacksbear — Judge Mitchell. December 13, 1913.

W. A. Milton, for plaintiffs in- error. Paries & Reed, contra.

Judgment affirmed.

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


author: Luke, J.

text:
    8702.
    Central of Georgia Railway Company v. Syms.
    Decided October 31, 1917.
    Action for damages; from city court of Savannah — Judge Davis Freeman. March 24, 1917.

      Lawton & Cunningham, PL. W. Johnson, for plaintiff in error.

      Osborne, Lawrence & Abrahams, contra.
   Luke, J.

When this case was first before the court (Syms v. Central of Georgia Ry. Co., 17 Ga. App. 699, 87 S. E. 1091), it was held that upon the evidence it was error to grant a nonsuit. The evidence upon the second trial being substantially the same as on the former trial, and the verdict having the approval of the trial judge, this court is now bound by the decision doubtfully agreed to as the law of the case.

Judgment affirmed.

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


author: Wade, C. J.

text:
    8780.
    Knauff v. Yarbray.
   Wade, C. J.

The plaintiff instituted an action of trover to recover an au-

tomobile the possession of which was retained by the defendant for the purpose of asserting his lien as a mechanic for work done and material furnished in repairing the same. The plaintiff denied that the entire charge made by the defendant was correct, but admitted that he had authorized a certain part of the work to be done, which, was of the value of $20,- and that he had not paid or offered to pay this amount before instituting the suit, and thus discharged the lien of the defendant for the amount confessedly due. The plaintiff having failed to carry the burden by proving the wrongful detention of the property by the defendant, the trial judge did not err in awarding a nonsuit, and the judge Of the superior court properly overruled the certiorari complaining of this judgment.

Decided October 31, 1917.

Certiorari; from Fulton superior court — Judge' Bell. March 27, 1917':

Neufville & Neufville, for plaintiff.

Reynolds & Whitman, for defendant.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    8796, 8797.
    Walker v. Georgia Railroad & Banking Co.
    Decided October 31, 1917.
    Action for damages; from DeKalb superior court — Judge • Smith. March 7, 1917.
    ■ Alonzo Field, for plaintiffs.

      McDaniel & Black, for defendant.
   Wade, C. J.

The proof submitted, together with all reasonable deductions and inferences to be drawn therefrom, demanded a verdict in favor of the defendant i.n each case, and the trial judge did not err in so directing.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    8803.
    Rogers v. Culver et al.

   Wade, C. J.

1. If a negation or negative affirmation be essential, the burden of proving it rests upon the party affirming it. Civil Code (1910), § 5746.

2. Where a petition has been filed by an executor with the ordinary for an order discharging him from his trust, “a citation shall issue, requiring all persons concerned to show cause [italics ours] against the granting of the discharge.” Civil Code (1910), §'4089.

(a) The burden in this case rested upon the caveator to sustain by proof her affirmation that' the estate had not been fully administered, and that because of certain facts alleged by her the petitioners were not entitled to their discharge. Conceding that the assignment of error on this point was sufficient, the court did not err in so holding. See, in this connection, Peavy v. Clemons, 10 Ga. App. 507 (73 S. E. 756); Lee v. English, 107 Ga. 152 (33 S. E. 39); Jones v. Cooner, 137 Ga. 681, 684 (74 S. E. 51).

Decided October 31, 1917.

Appeal; from Hancock superior court — Judge Park. March 33, 1917.

R. H. Lewis, for plaintiff in error.

R. L. Merritt, contra.

3. The sole remaining assignment of error in the bill of exceptions is contained in the following sentence: “The defendant closed, and plaintiff moved a nonsuit, which the court ordered, and defendant alleges the same as error, and alleges that the issue should have been submitted to a jury.” In the case of Randolph v. Brunswick &c. R. Co., 120 Ga. 969 (48 S. E. 396), in which it was held: “That the court erred in granting a nonsuit is a sufficient assignment of error on such ruling, and presents the question as to whether the evidence was sufficient to require the case to be submitted to the jury,” the bill of exceptions recited that the court ordered a nonsuit, and that plaintiff “excepted to the action of the court in granting said motion for nonsuit, and now excepts and assigns said action as. error.” See also Fargason v. Ford, 119 Ga. 343, 344 (46 S. E. 431), and cases cited. The error assigned in this case, however, is not excepted to, and therefore no question is presented to this court for determination. The plaintiff in error alleges that the court erred in awarding a nonsuit, but the alleged erroneous judgment is not expressly excepted to. “Certain specific assignments of error might be valid, but if there is no exception to the judgment it would have to .be assumed that there were sufficient reasons authorizing the grant of the judgment rendered which prevented the plaintiff in error from being able to show the court that the errors of which he complained really injured him, or that he was in fact dissatisfied with the final judgment. To authorize a reversal of the judgment of a lower court, not only error, but injury, must be shown.” Elrod v. Grant, 9 Ga. App. 307, 309 (71 S. E. 501). There was no such exception to the judgment of nonsuit as is required by the ruling of the Supreme Court in Lyndon v. Georgia Railway & Electric Co., 129 Ga. 353-357 (58 S. E. 1047). See also Dubberly v. Kicklighter, 12 Ga. App. 584 (77 S. E. 914). Error is alleged, but not complained of.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Luke, J.'

text:
    8810.
    Glauson v. Collier.
    Decided October 31, 1917.
   Luke, J.'

There are no meritorious assignments of error upon the admissibility of evidence in this case, and the evidence authorized the judgment rendered in favor of the plaintiffs by the judge of the city court, who by agreement heard and determined the issues without the intervention of a jury.

Judgment affirmed.

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

Distraint; from city court of Zebulon — Judge Dupree. March 15, 1917.

Bedding & Lester, for plaintiff in error.

Cleveland & Goodrich, contra.


author: Broyles, P. J.

text:
    8811.
    Glauson v. Collier.
    Decided October 31, 1917.
    Affidavit of illegality of execution; from city court of Zebulon— J'udge Dupree. March 15, 1917.

      Bedding & Lester, for plaintiff in error.

      Cleveland & Goodrich, contra.
   Broyles, P. J.

A mortgage was foreclosed on personalty; and an affidavit of illegality was filed by tlie mortgagor. By consent the case was submitted to the judge to pass-on all questions of law and fact, without the intervention of a jury. Judgment was rendered in favor of the plaintiff, for $545.60 principal, $54.65 interest to date, and all future interest at the rate of 8 per cent, per annum, and costs of suit. The defendant excepted to this judgment; also to the admission of certain documentary evidence, contending that it was irrelevant. There was some evidence, outside of this alleged illegal evidence, which authorized the judgment; and it is not made to appear that the admission of such documentary evidence, even if it were irrelevant, wasp harmful to the plaintiff in error.

Judgment affirmed.

Bloodtoorth and Banoell, JJ., concur.


author: Ienkins, J.

text:
    8834. 8837.
    Garner v. Farmers and Merchants Bank. Smith v. Farmers and Merchants Bank.
    Decided October 31, 1917.
    Complaint; from White superior court — Judge J. B. Jones. April 9, 1917.

      G. S. Kytle, C. H. Edwards, B. P. Gaillard Jr., for plaintiffs in error. Underwood & Henderson, W. A. Charters, contra.
   Ienkins, J.

Each of these cases being controlled by the rulings in Sloan v. Farmers & Merchants Bank, 20 Ga. App. 123 (92 S. E. 893), Banes v. Farmers & Merchants Bank, 20 Ga. App. 129 (92 S. E. 896), and Evans v. Farmers & Merchants Bank, 20 Ga. App. 739 (93 S. E. 231), there was no error on the part of the trial judge in. sustaining the demurrer to the amended answer and striking it, or in thereafter directing a verdict for the plaintiff for the full amount sued for.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    8835.
    Keith v. Farmers & Merchants Bank.
    Decided October 31, 1917.
    Description and counsel as in case next preceding.
   Bloodworth, J.

1. Where there is no fraud on the part of the vendor of real estate which prevents inspection thereof, and the purchaser fails to exercise diligence by inspecting the property, a plea of failure of consideration on account of its physical condition or environment will not be entertained. Sloan v. Farmers & Merchants Bank, 20 Ga. App. 123 (92 S. E. 893) ; Hanes v. Farmers & Merchants Bank, 20 Ga. App. 129 (92 S. E. 896) ; Martin v. Harwell, 115 Ga. 156 (3) (41 S. E. 686).

2. The plea set up no legal defense, and the trial judge did not err in sustaining the demurrer to it.

'Judgment affirmed.

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


author: Bloodworth, J..

text:
    8506.
    THRASH & COMPANY v. HARMAN et al.

    Under previous rulings in this State, as applied to the facts of a case made by rule for distribution of money, the award by the judge was equitable and proper.
    Decided October 31, 1917.
    Money rule; from city court of Greenville — Judge Revill. January 34, 1917.
    J. A. Thrash & Company obtained four judgments in a justice’s court against Aleck Watson. On December 8, 1914, executions were issued, and on December 36, 1914, two of these executions were levied on a black horse-mule as the property of Aleck Watson. The mule was advertised for sale by the constable and was sold for $153. J. A. Thrash & Co. obtained a rule against the constable, who answered, admitting the facts stated in the rule. Cal and Charles Harman filed an intervention in which they alleged that the mule from the sale of which the fund in controversy arose was not the property of Aleck Watson, but belonged to them, because of the fact that on January 18, 1913, they sold the mule to Lou venia Watson, taking from her a note for the purchase-price, in which note they retained the title to the mule; that the note was duly recorded on January 19, 1913; that no part of the purchase-price of the mule has ever been paid, and that Aleck Watson and his wife, Louvenia Watson, were both insolvent. They prayed that “the- funds arising from said sale of said mule, after deducting legitimate cost, be ordered paid over to intervenors.” It was agreed by the parties that the facts set out in the rule, the answer, and the intervention, were “all that is necessary to a clear understanding of. the facts in said case, and that the facts contained in each are true.” The case was submitted, by agreement, to the judge without the intervention of a jury. He awarded the fund to the Harmans.

      McLaughlin & Jones, for plaintiffs. J. F. Hatchett, contra.
   Bloodworth, J..

A rule against a constable to distribute money in his hands is essentially an equitable proceeding. In Coleman v. Slade, 75 Ca. 73, it was said: “It must be borne in mind that these issues on money rules against the sheriff, when creditors contest for their respective rights and priorities of lien, are in the nature of equitable proceedings, and should be determined accordingly; and no irregularities should defeat the real equities of the parties and justice of the ease.” In Wright v. Brown, 7 Ga. App. 389 (66 S. E. 1034), it was held: “If the title to the property sold as the property of the defendant in attachment be in a third person by reason of his having reserved it in writing as security for the purchase-money, that third person may waive his right to follow the property and recover it from the purchaser at the sale, and in that event can, on money rule, have the proceeds .of the sale applied upon his debt; and this is true notwithstanding he gave public notice on the day of the sale that whoever bought would buy subject to his title.” . The same principle was applied in the case of Browder-Manget Co. v. Blake, 135 Ga. 71 (68 S. E. 837). See also Civil Code (1910); § 5348; Rucker v. Tabor, 133 Ga. 720 (66 S. E. 917); National Bank v. Exchange Bank, 110 Ga. 692 (36 S. E. 265); Baker v. Gladden, 72 Ga. 469; Field v. Armstrong, 69 Ga. 170; Bradshaw v. Gormerly, 54 Ga. 557, 559; Ragan v. Coley, 4 Ga. App. 421, 422 (5) (61 S. E. 862); Georgia Realty Co. v. Bank of Covington, 19 Ga. App. 219, 222 (91 S. E. 267). Under these decisions it seems clear that the conclusion reached in this case by the presiding judge was equitable, and that the money was properly awarded. See also Hinton v. Burns, 20 Ga. App. 467 (93 S. E. 120).

Judgment affirmed.

Broyles, P. J., arid Harwell, J., concur.


text:
    8647.
    Gleaton v. Georgia National Bank.
    Decided October 31, 1917.
    Complaint; from Calhoun superior court — Judge Cox. December 5, 1916. •

      Calhoun & Askew, for plaintiff in error.

      Peacock & Gardner, contra.
   Broyles, P. J.

1. Where an account is stated by the creditor, and the debtor gives his promissory note in settlement, and is grossly negligent in failing to inform himself as to the elements of the account, he will not be allowed to plead, as a defense to an action upon the note, that certain items in the account, for which he was not legally liable, were fraudulently placed therein, where his plea does not show that any trick or artifice was used to prevent him from discovering- the fraud. Dortio v. Dugas, 55 Ga,. 484 (6) ; Pattison v. Albany Building & Loan Association, 63 Ga. 374; Dyar v. Walton, 79 Ga. 466 (7 S. E. 220); Howard v. Georgia Home Insurance Co., 102 Ga. 137 (29 S. E. 143); Hollingshead v. American National Bank, 104 Ga. 250 (30 S. E. 728) ; Sumner v. Sumner, 121 Ga. 1 (4, 5), 5-6 (48 S. E. 727).

2. Under the foregoing ruling and the facts of this case, the court did not err in sustaining the demurrer to the amended plea of the defendant, or in thereafter striking the plea and directing a verdict for the plaintiff for the full amount sued for.

Judgment affirmed.

Bloodworth .and Harwell, JJ., concur.


text:
    8680.
    Coleman et al., adm’rs., v. Hutcheson, Yeomans & Co.
    Decided October 31, 1917.
    Complaint; from Toombs superior court — Judge Hardeman'. January 18,'1917.

      Giles & Sharpe, for plaintiffs in error.

      Williams & Williams, WiUiáms & Bradley, contra.
   Bloodworth, J.

1. The motion for a new trial embraces the general grounds only. There is ample evidence to support the verdict; and when the jury has passed, upon the questions of fact, and such questions only are involved, this court will' not interfere with the finding if there is any evidence to support it.

2. The writ of error in this ease is witii&ut merit, and was evidently sued out for delay only. The prayer of the defendants in error that ten per cent, damages be awarded against the plaintiffs in error, as provided in section 6213 of the Civil Code of 1910, is granted.

Judgment affirmed, with damages.

Broyles, P. J., a/nd Harwell, J., concur.


author: Harwell, J.

text:
    8741.
    BROWN et al. v. STATHAM et al.

    1. The evidence in this case failing to show affirmatively that the way in controversy did not exceed fifteen feet in width, and that it had been kept open and in repair for a period of seven years, the judgment overruling the certiorari is reversed.
    2. Assignments of error not insisted upon by counsel for the plaintiffs - in error will be treated as abandoned.
    Decided October 31, 1917.
    Certiorari; from Wilcox superior court — Judge Crum. March 30, 1917.

      Hal Lawson, for plaintiffs in error.

      D. B. Nicholson, D. B. Nicholson Jr., contra.
   Harwell, J.

N. A. Statham and others applied to the ordinary of Wilcox county for an order directing George Brown and-others to show cause why they should not remove certain obstructions placed by them in a private way, to the use of which the plaintiffs alleged they had a prescriptive right. At the hearing the ordinary passed an order directing Brown and Maddox to remove the obstructions complained of in the petition, or to place suitable gates for the use of the public wherever the said way should cross this land. Brown and others sued out a writ of certiorari, complaining that the judgment was erroneous, for the reasons: (1) that the commissioners of roads and revenues of Wilcox county were the proper officers to try the ease; (2) that George Brown, the real defendant, resided in Dodge county, and the jurisdiction was in that county; and (3) upon- the general grounds that the judgment was contrary to law and without evidence to support it. The judge of the superior court overruled the certiorari, and the defendants excepted.

The first twp assignments of error — that the commissioners of roads and revenues of Wilcox county were the proper officers to try the case, and that the case should have been brought in Dodge county- — have been abandoned by the plaintiffs in error, and for that reason need not be considered by this court.

In cases of removal of obstructions from a private way, alleged to have been acquired by prescription, it is well recognized that two of the essential allegations are that the private way is not over fifteen feet in width, and that it has been kept open and in repair for a period of seven years or. longer. • Political Code of 1910, § 808; N., C. & St. L. Ry. v. Coats, 133 Ga. 820, 821 (66 S. E. 1085), and cases there cited. We have carefully examined the evidence submitted at the hearing before the ordinary, and we fail to find any evidence which establishes the fact that the way in controversy did not exceed fifteen feet in width. One of the witnesses for the plaintiffs testified: “I couid not say whether or not the road was as much as sixteen feet wide; it is a settlement road.” Other witnesses for the defendants testified that at some points it was as much as twenty-five feet in width. The testimony of the plaintiffs further failed to show affirmatively that the road had been kept open and in repair for a period of seven years. Statham, one of the plaintiffs, testified in their behalf as follows: “This road . . needs no work to make it passable now. I have cut a tree top or two out of it. . . I have cut out two trees on this road since Fve been there. I took a log out the first of last year and took a top out year before last. I had to cut the top out but the log broke up when it fell and I pulled it out. I have not worked the road unless this is working it, nor has' anybody else worked it that I know of. Working this road would help it, but it is passable now.” Futch, sworn for the plaintiffs, testified: “I have never worked this road, and it has never needed any work since I have been there, or we would have worked it; and it has been so that we could pass over it ever since I have been there.” Bush, sworn for the plaintiffs, testified: “I remember some trees falling in the road at different times and remember they were removed but not by myself. . . The road is rough; it is passable now and has always been; is a reasonable road.” The testimony of the foregoing witnesses is the only evidence offered by the plaintiffs for the purpose of showing that the alleged private way had been kept in repair for seven years. The uncontradicted testimony offered by the defendants showed that the road was allowed to be out of repair, and the testimony fails to show any work done on it by the plaintiffs further than the removing of brush and trees therefrom. The testimony of other witnesses shows that plaintiffs went around any obstruction in the road, instead of repairing the road. In Short v. Walton, 61 Ga. 28, it is said: “To acquire a prescriptive right to a private way over land, it is necessary to show the -uninterrupted use of a permanent way, not over fifteen feet wide, kept open and in repair for seven years. It is not sufficient to show that those claiming the prescription have been accustomed for more than seven years to pass over the land, changing the way as they saw fit, to avoid obstructions' or for convenience.” In Aaron v. Gunnels, 68 Ga. 528, it was held that pulling out of the way any brush or other thing happening to fall on the way does not constitute keeping the same in repair. In Collier v. Farr, 81 Ga. 753 (7 S. E. 862), the court said: “It would not do to hold that whenever a gully washes across one of these roads, or whenever a limb or tree falls across it, people using the road can let the obstruction remain, and appropriate more land for their convenience by going around the obstruction. In order for one to take or keep another’s land as a road for his private use, he should be compelled to keep it open and in repair.”- In the opinion of this court the evidence in this record fails to show that the way in controversy had been kept open and in repair. For the reasons stated herein, it is held that the judge of the superior court erred in overruling the certiorari, and the judgment is therefore

Reversed.

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


text:
    8798.
    Cobb et al. v. Pope.
   Broyles, P. J.

1. This was an action in trover to recover a mare which the plaintiff had swapped to Jim Tolbert for a mule. The suit was brought against R. E. Cobb, J. H. Pounds, and Jim Harris. The court erred in refusing to rule out the plaintiff’s evidence to the effect that Jim Tolbert had represented the mule' to be sound in every respect, no evidence having been introduced that connected the defendants with this transaction, and Tolbert’s representation not having been made in their presence.

2. The right to rescind for fraud in a horse swap exists only where actual fraud has been committed, unless the right to rescind has been expressly reserved. Barnett v. Spier, 93 Ga. 762 (21 S. E. 168); Dunn v. Beasley, 143 Ga. 376 (85 S. E. 100); Houze v. Blackwell, 144 Ga. 700 (87 S. E. 1054); Sasser v. Pierce, 6 Ga. App. 321 (64 S. E. 1100); Stovall V. McBrayer, 20 Ga. App. 93 (92 S. E. 543).

3. Under the ruling in the preceding note, and the facts of this ease, it was error for the court to instruct the jury upon the subject of constructive fraud.

4. The' exception based upon the refusal to grant a nonsuit will not be considered, since the case proceeded to a verdict, and the defendants excepted to the overruling of a motion for a new trial which includes the ground that the verdict in favor of the plaintiff was contrary to the evidence and without evidence to support it.

Decided October 31, 1917.

Trover; from Haralson ^superior court — Judge Bartlett. April 10, 191?.

Griffith & Matthews, for plaintiffs in error. M. J. Head, contra.

5. The verdict was not authorized by the evidence, and the court erred in refusing to grant a new trial.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.


text:
    8806.
    HILL v. CHATTANOOGA RAILWAY & LIGHT CO.
    1. The court charged as follows: “Now, if the defendant, by the failure to exercise this degree of care [extraordinary care], injured the plaintiff, and he was a passenger, he could recover, provided he could not by the exercise of ordinary care have avoided the injury; in which event he could not recover, although the defendant may have been negligent, and provided that if the plaintiff was negligent his negligence did not materially contribute to the injury.”

      (a) Although the duty of the"plaintiff, under the law, to exercise ordinary care to avoid the consequences of the defendant’s negligence does not arise until such negligence is apparent, or in the exercise of ordinary care would be apparent, the failure of the court so to qualify the charge quoted above is not, in this case, harmful error. By the plaintiff’s own testimony the negligence of defendant’s conductor in ringing the car forward while plaintiff was boarding it was known to the plaintiff at the time, and it was for the jury to say whether he exercised ordinary, care to prevent injury to himself after such negligent act of the defendant’s agent.
    (5) The charge was not error in that it instructed the jury that contributory negligence on the part of plaintiff would bar his right of recovery. The injury occurred in Tennessee, and, no law of that State having been pleaded and proved, the common law is presumed to be of force in that State; and, under the common law, contributory negligence is a bar to the plaintiff’s recovery. Southern Railway Co. v. Cunningham, 123 Ca. 90 (50 S. E. 979).
    (e) The charge was not error for any of the other reasons assigned.
    2. When a tort occurs in another State, and suit is brought on account of it in the courts of this State, the lex loci delicti governs as to all substantive matters, the lex fori as to all matters affecting only the remedy, such as rules of evidence,.methods of shifting the burden of proof, and the presumptions arising from given states of facts. Southern Ry. Co. v. Rohertsofi, 7 Ga. App. 154 (2) (66 S. E. 535). The alleged tort in the instant case having been committed in Tennessee, and the suit brought thereon in this State, the court did not err in charging the jury that, upon proof of injury by the running of cars of the defendant company, the presumption arose that the allegations of negligence in the plaintiff’s petition were well founded. The expression last quoted charges substantially that the presumption is that the defendant company was negligent in the manner set out in each of the allegations of negligence in the petition.
    3. The plaintiff’s case, both in his petition and by his proof, proceeded on the theory that, while boarding one of defendant’s cars at its cus- ■ tomary stopping place, he was injured by the negligent and sudden starting of the car. The defendant’s contention was that the plaintiff was injured by slipping and falling when running to board the car, while it was in motion,.between two of its customary stopping places. The court charged: “If the plaintiff was not a passenger according to the rules which 1 have laid down, then the company would be liable in this ease only for gross pegligence and in the event it injured the plaintiff willfully or recklessly.” This charge was not authorized, under the pleadings in the case, inasmuch as the plaintiff could not recover unless injured as alleged in the petition. However, since this charge allowed the plaintiff a right of recovery to which, under his petition, he was not entitled, he will not be heard to complain.
    4. The charge complained of in ground 6 of the motion for a new trial, in which the jury were instructed as to defendant’s liability should they find the plaintiff to have been injured while not a passenger, was, for the reason above stated, more favorable to the plaintiff than he was entitled to.
    5. The court did not err in charging that if the alleged injury was an accident, the plaintiff could not recover. This charge was authorized by the evidence in the case.
    6. The charge of the court that the burden was upon the plaintiff to establish his contentions by a preponderance of the evidence was not erroneous for the alleged reason that “it excludes from the jury a presumption of negligence that the law raises upon the proof of injury.” The court elsewhere charged upon the presumption of negligence.
    7. The charge of the court complained of in ground 9 of the motion for a new trial is that “if the evidence preponderates but slightly in his favor, that would be sufficient, but it must preponderate in favor of the plaintiff to authorize him to recover.” It would be better for the court, in charging the jury on the subject of preponderance of evidence, to adhere to the rule ais stated in section 5731 of the Civil Code (1910), but the rule as given by the court in the instant case, while it was not in the language of the code, and for that reason might be considered inaccurate, was not such harmful error as would authorize the grant of a new trial.
    8. The court did not err in overruling the ground of the motion for new trial complaining that W. L. Bryant, foreman of the jury trying the case, was an incompetent juror because he had two sons-in-law working for the defendant company at the time of the trial, which fact was unknown to the plaintiff or his attorneys. Relationship to an employee of a corporation does not in this State render a juror incompetent, as a matter of law, to serve on the trial of a case in which the corporation is a party. .

      9. The case was fairly tried, the evidence amply supported a verdict in favor of the defendant, and the judgment of the court in refusing a new trial will not be disturbed.
    Decided October 31, 1917.
    Action for damages; from Catoosa superior court — Judge Tarver. March 31, 1917.
    Hill brought suit by attachment against the Chattanooga Railway & Light Company, a foreign corporation, claiming damages for personal injuries alleged to have been inflicted by defendant’s agents in the negligent operation of its street-car. The petition alleged that on July 17, Í914, plaintiff: undertook to board one of defendant’s ears in Rossville at a point where the car- turned into Rossville Boulevard, and just-as he was attempting to board the car as a passenger of the defendant, as was usual and customary for passengers to do at said point, the employees of the defendant in charge of the car caused it to start suddenly and with a jerk, throwing him to the ground and inflicting on him described injuries. It was alleged that the defendant’s agents in charge, of the car were negligent in stopping it upon a curve, where the car, when started, would start with a swing and would tend to throw passengers to the ground, and in failing to keep a" lookout and to wait until the plaintiff could get safely aboard, and also in starting the car before he had safely gotten upon it, and in starting the car with a sudden jerk, so as to throw him to the ground, and in not giving him warning of the starting of the ear and of the intention to start it. The defendant in its answer denied the material allegations of the petition, and the case went to trial before a jury.
    Hpon the trial the plaintiff gave testimony in his own behalf in support of the allegations of his petition. He swore that defendant’s car had stopped at its customary stopping place, just before turning into Rossville Boulevard; that the car was stopped on a sharp bend; that just as he put his right foot on the step to board the car, his right hand grasping the right support and his left hand carrying his sample case, the conductor rang the signal for the car to start; the car started with a jerk, and plaintiff’s foot was caught between the step of the car and the curbstone, the plaintiff all the while holding on to the right support. He further testified that “the conductor or anybody in control of the car did nothing to stop the car.” The conductor in .charge of the car testified that on the occasion in question his car stopped at its customary place; that no passengers got on or off the car; that the car started off and had gone about a car’s length when he saw the plaintiff running towards the car, trying to catch it, with his sample case in his left hand; that just as the plaintiff approached within four feet of the car his foot slipped on a round rock, causing him to fall and his right leg to slide under the step of the car and receive the injuries claimed. His testimony further showed that the injury occurred beyond the State line and in'the State of Tennessee. The testimony of the motorman on this car and of several disinterested bystanders was in all material respects the same as that of the conductor. Both sides closed, and the jury, after being charged by the court, returned a verdict in favor of the defendant railway company. The plaintiff excepted to the refusal of a new trial,
    W. E. Mann, W. C. Martin, J. M. Rudolph, for plaintiff.

      W. H. Payne, Maddox, McCamy & Shumate, for defendant.
   Harwell, J.

(After stating the foregoing facts.) The several

assignments of error on the charge of the court have been sufficiently disposed of in the headnotes of this opinion. The ■ only headnote which needs elaboration is the 9th. In ground 10 of the motion for a new trial it is insisted that a new trial should be granted because two of the jurors who tried the case were related to employees of 'the defendant company. Affidavits of the plaintiff and his counsel were offered in support of this ground, and it was shown, with reference to one of these jurors, that the relationship was unknown to them at the time of the trial. The affidavits do not show that the plaintiff and his counsel did not know of the relationship of the juror Victor Williams, and for this reason the fact of disqualification of this juror need not be considered. With reference' to the other juror, Bryant, thé motion shows that he had two sons-in-law who were employees of the defendant company. The courts of this State have held that an employee of one of the parties is disqualified as a juror. See Temples v. Central Ry. Co., 15 Ga. App. 115 (82 S. E. 777), and discussion of this question by Judge Bussell; see also Central R. Co. v. Mitchell, 63 Ga. 173. At common law the rule was that one is not a competent juror in a case if he is master, servant, steward, counsellor or attorney of either party. In such case a juror may be challenged for principal eáuse as an absolute disqualification of the juror. 3 Bl. (Cooley’s 4th ed.) 363; Crawford v. U. S., 212 U. S. 183 (29 Sup. Ct. 260, 53 L. ed. 465, 15 Ann. Cas. 392). The courts of many States have not gone as far in the disqualification of jurors as this court went in the Temples casé, supra. In Dimmack v. Wheeling Traction Co., 58 W. Va. 226 (52 S. E. 101), it was held .that the mere fact that a juror is an employee of a stockholder of a corporation does not' render him incompetent to serve in an action in which the corporation is a party. See 40 L. R. A. (N S.) 982, note, for discussion of this question. In Stewart’s adm’x. v. L. & N R. Co., 136 Ky. 717 (125 S. W. 154), it was held: “The fact that a juror, in an action against a railroad for the negligent death of an employee, was a relative by marriage to one of the attorneys for the railroad, and that another juror had a brother in the service of the railroad, and that another juror had two nephews in its service, did not warrant the setting aside of the verdict.” See 24 Cyc. 274. It seems to us, therefore, that it would be going too far to hold that one related to an employee of a party to the cause, would be disqualified as a juror. It is our opinion that the juror was competent, and that the court did not err in overruling this ground of the motion for a new trial. Compare Campbell v. State, 144 Ga. 224 (87 S. E. 277).

Judgment affirmed.

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


text:
    8809.
    MADDEN v. MITCHELL AUTOMOBILE CO. et al.

    The evidence supported the material allegations of the petition, and the court erred in granting a nonsuit.
    Decided October 31, 1917.
    Action for damages; from Walker superior court — Judge Tarver. February 21, 1917.
    T. F. Madden filed suit in attachment against S. L. Mitchell Automobile Co., S. L. Mitchell, and Lookout Mountain & Chattanooga Sight-seeing Company. Briefly stated, the material allegations of the petition are as follows: That the defendants were, on May 15, 1914, operating motor , trucks over a described route, for sight-seeing parties; that at a certain point on said route stood a large monument, known as the Iowa Monument, and at this point is a playground where a number of children, between the ages of six and fifteen years, collect and play during the day, and that defendants and their agents were fully aware of said fact; that the motor ears of the defendants, in passing this playground, were accustomed to move at a slow rate of speed, namely, from three to six miles an hour, and that the drivers of defendants’ cars had been accustomed to permit the children to hoard and ride the cars while passing this point at said slow rate of speed,' such custom having been a continuous one for some months prior to May 15, 1914; that it was the duty of defendants’ agents operating its ears, being aware of this custom, to anticipate that the children would attempt to hoard the cars at this point, and their said agents were.under a duty to take proper measures to prevent injury to these children. The petition fhrtner alleged that.plaintiff’s son, of the age of eleven years, together with several companions, was at said playground on the forenoon of May 15, 1914; that one of defendants’ cars, in charge of its agent, Burns, entered the playground running very slowly, said agent knowing at the time that children were in the habit of jumping upon the steps or running-board of the. car at this point; that upon entering the playground the car was running at a speed of about three miles an hour, and soon after it entered the ground petitioner’s son, together with three others, ran out to jump upon the running-board and ride, two of the boys running across the road in front of the car and boarding the left side of the car, while plaintiff’s son and another attempted to swing on the running-hoard on the right side; that petitioner’s son missed the running-hoard of the ear, was hurled under it, and the right wheel of the car ran over him, inflicting injuries from which' he soon died. It is alleged that the driver of the car, just at the time petitioner’s son undertook to board the same, applied more power to the machine, causing it to move faster, and that by such sudden motion of the car the boy was tripped ’ up and killed. The petition^ further alleged that deceased was lacking in experience and discretion, and was incapable of appreciating the danger of undertaking to board the ear while in motion; that Burns, the driver, had full control and management of the car, and knew that deceased had on previous occasions mounted and ridden on his car at this point, as he was undertaking to do at this time; that divers other boys of about the age of the deceased had prior to this time, with the knowledge of Burns and without objection from him, jumped upon his ear at this point, when going in this direction, and that said driver was aware of the lack of discretion and experience on their part, and their inability to appreciate the danger in their conduct in so boarding the ear. The driver was charged to' be negligent in that, although he knew of the children’s custom of boarding his car at said point, and had often so permitted them to do, and though he knew their lack of experience and realized the danger they incurred in so boarding the car, and knew, or ought to have known, that deceased was attempting to board his car, he on this occasion failed to ascertain whether any of the children had boarded, or were attempting to board, his car as he passed the playground, but instead of so ascertaining he speeded up his ear at this point, contrary to his usual custom. There were further allegations as to the earnings of deceased, his contribution to the support of plaintiff and his family, and the attachment proceedings theretofore had in aid of this suit.
    At the conclusion of the plaintiff’s evidence on the trial the court, on motion, granted a nonsuit; to which the plaintiff excepted. The evidence adduced at the trial is stated in the opinion.

      C. B. Jones, O. N. Chambers, B. M. W. Glenn, W. M. Henry, for plaintiff. 1

      Allison, Lynch & Phillips, Bosser & Shaw, for defendant.
   Harwell, J.

(After slating the foregoing facts.) The principles of law announced by the court in Ashworth v. Southern Railway Co., 116 Ga. 635 (43 S. E. 36, 59 L. R. A. 592), are applicable to the instant case. The Ashworth case has been followed by a number of decisions since rendered by the Supreme Court of Georgia. The cases cited by the defendant in error from other jurisdictions we do not think conflict with the ruling in the Ashworth case. In Ziegman v. Beebee, 97 Neb. 689 (151 N. W. 167, L. R. A. 1915D, 536), one of the eases cited by defendant in error, the court said: “The question would be different if the driver was aware that the children were congregating on and about [the wagon] and were liable to be injured if not warned away, and this is the principle upon which some cases have been decided.” At any rate, the ruling announced by the Supreme Court in the Ash-worth ease is the law of this State. In that ease it was held: “Notwithstanding the plaintiff was an infant of immature years, he was wrongfully upon the running-board of the company’s engine, and was therefore a trespasser. The. only duty which a railroad company owes a trespasser is not to injure him wantonly or willfully; and ordinarily this rule imposes upon the company simply the duty of taking proper precautions after the presence of a trespasser in a position of peril has been discovered. It will not do, however, to lay this down as an absolutely invariable rule. A railroad company may, by its own acts and conduct, impose upon itself the duty of anticipating the presence of a trespasser in such a position. . . A railroad can not, in all cases, relieve itself from liability to a trespasser by showing merely that its servants and employees did not know of the presence of the trespasser, but in some cases it must go further and show that there were no circumstances from which an ordinarily prudent -person would have had reason to anticipate his presence. . . Bailroad companies may not be bound to anticipate that children will be allured by passing trains and attempt to board and ride upon them. But when the right of way of a railroad company extends through a place used as a playground by a number of children of ages varying from six to fifteen years, and when these children are accustomed continuously, every time the train enters the playground when they are upon it, to swarm upon the train and ride to the limits of the playground, and when the employees of the company know of this custom and make no objection to it, the company is bound to carry the burden which such a knowledge and tacit permission imposes, and this burden would require the company to comply with the demands of ordinary care for the prevention of injury to the children.” While the deceased in the instant case is to be treated as a trespasser, the question to be determined by this court is whether or not the evidence submitted by the plaintiff, tested by the rules' announced in the Ashworth ease, supra, made such a case of wanton and willful negligence by defendant’s servant in charge of the ear that the case should have been submitted to the jury, and whether, therefore, the court erred in granting a nonsuit.

Questions of negligence -are peculiarly for the jury. Wynn v. City & Suburban Ry., 91 Ga. 344 (7) (17 S. E. 649). Nonsuit should not be granted if there is any evidence to support the allegations of the petition. Civil Code (1910), § 5573. The evidence in this case supports' the allegations of the petition. The testimony of the plaintiff’s witnesses, briefly stated, showed the following facts: that this sight-seeing car was run from Chattanooga, through Eossville, tó Chickamauga National Park, and carried passengers for hire to points of interest along this route; that Burns, the driver, was in entire charge of the operation of the car, and his duties-were to collect fares and operate the car; that at a place called the Iowa Monument the driver always checked the speed of his car and delivered a “spiel” to the passengers, explaining this point of interest; that this place was a playground for children, especially for certain boys who congregated here and played ball; that it was the regular custom of these children, when the car “slowed up” at this point, to mount the running-boards of the sight-seeing ear which ran lengthwise of the car on both sides; about a foot above the ground; that this custom extended over a period of several years, and was well known to Burns, the driver who was in charge of the car on this occasion. One of the witnesses testified: “It was the habit of us boys to ride when we pleased at this particular place; that had been our habit and custom about two years. Mr. Burns and the other drivers made no objection to our doing that. When I made these trips in these ears we got out there — I did — at the Park and opened the gates for them. The driver, Mr. Burns, and the others knew we opened the gates; it was an accommodation to him and the passengers.” The testimony further showed that these boys would ride upon the car to a certain monument called the Wilder Monument, and there get off with the driver and passengers to visit this point of interest, and then ride to a certain place, on the return of the ear, where they all got off. The evidence tended to show that this custom was well known to the driver and was tacitly consented to by him; that on the day when deceased met his death one of his companions had already mounted the car as it approached the Iowa Monument; that as it approached, the boys were there in the road for the purpose of swinging it, as was their custom; that one of them ran across the road about fifteen feet in front of the car to the left-hand side of the car, and that the driver was looking ahead and must have seen this boy; that two of the boys were in the road on the right-hand side for the purpose of swinging' the car, one of them being the deceased; that they were in this position some twenty-six feet in front of the car, so that the driver, in looking ahead, must have seen them as well as the boy who ran across in front of the car; that as the ear approached the place of the Iowa Monument, where these boys were congregated in the road, it was running about four miles an hour; that the deceased attempted to mount the running-board of the car, and in doing this fell under the wheels and was run over and killed; that just as the deceased mounted the car, or attempted to mount it, the driver “speeded up” the car, and this sudden increase in speed caused deceased to fall. One of the witnesses testified: “He speeded up his car to keep us off; he hadn’t been used to speeding up his car, and I just assume that was the reason.”

We have carefully examined the record in'this case, and in our opinion the testimony of the plaintiff’s witnesses tended to support the allegations of the petition, and certainly made a case for submission to a jury. It is for the jury to say whether these boys were accustomed to congregate at this point, and whether or not the custom of these hoys to mount this sight-seeing car was so regular and continuous and was so well known to this particular driver as to make it his duty to anticipate, when he saw the boys there, that they would do as they had been regularly in the habit of doing — -mount or attempt to mount his car when it decreased its speed at this point, and to take the necessary precautions for their safety. It is for the jury to say whether or not on this occasion the presence of these boys for this purpose was known to the driver. It is for the jury to say whether or not the driver’s negligent conduct under the circumstances amounted to wantonness and willfulness and was the proximate cause of the boy’s death. Whether or not the deceased’s failure to exercise due care — that is, such care as his age and capacity fitted him’ to exercise under the circumstances surrounding him at the time — would preclude ^recovery, is also a question to be passed on by the jury, under appropriate instructions from the court. The court erred in granting a nonsuit; and the judgment is

Reversed.

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


text:
    8825.
    EVANS v. ATLANTA PAPER COMPANY.
    1. The letters written by the defendant company and its agent to the plaintiff did not constitute an absolute, unconditional, and unequivocal acceptance of his offer to buy from defendant certain goods of the agreed value, more than $50; and accordingly there was no valid and enforceable contract between the parties.
    2. Although a person to whom an order for goods is sent may, by his conduct, lull the proposed buyer into the belief that the order will be filled, and thereby estop himself from denying the existence of a valid and binding contract, the facts alleged in the petition in the present, case are not sufficient to show such conduct on the part of the defendant.
    3. Since the writings set out in the petition did not make a complete contract between the parties, and the agreed price of the goods under the alleged contract being over $50, the trial judge properly sustained a demurrer to the petition^ based upon the ground that the contract was within the provisions of the statute of frauds, and was therefore unenforceable.
    Decided October 31, 1917.
    Action for breach of contract; from city court of Atlanta— Judge Reid. April 14-, 1917.
    A. J. Evans brought suit against the Atlanta Paper Company, alleging that the defendant had made with him a contract to furnish him 100,000 corrugated shipping-cases; and that the contract was represented by an order from plaintiff to defendant, dated Eeb. 4, 1916, and by acceptance of .said order by the defendant, which acceptance was evidenced by two letters, the first of which was written to Evans on Eeb. 9, 1916, -by Rosenberg; the agent of defendant, and the second was written by defendant to Evans on Feb. 28, 1916. This order and the two letters are here set out in full:
    “Atlanta Paper Co., Atlanta, 6a. Date 2/4, 1916.
    “Order No.-Ship to A. J. Evans,"at Fort Valley, 6a. '
    “How ship--When: July 30. Terms, 5% off 30
    days. Salesman Rosenberg.
    “15 M No. 2 Corrugated.............................$52.4-5
    “50 M No. 2y2, Shipping............................ 68.50»
    “35 M No. 3 Cases.................................. 76.50
    “Less freight. Print on two ends.
    “This order given subject to crop conditions and decline in price.

      “Atlanta Paper Co., Atlanta, Ga., 2/9/16.
    “Mr. A. J. Evans, Fort Valley, Ga.
    “Dear Mr. Evans: I am writing to yon, as per my promise, that it will he perfectly satisfactory to have the Southern Brokerage Co. handle our account on peach cases and p,each pads for this season, and I sincerely hope that with your co-operation it will mean a big business for me. I have instructed the house to run up for yori about 5 M 2’s, 15 M 2%, and 10 M 3’s. I am doing this so that I will have them ready'when the peach season opens up, and so that there will be no delay in making you this first shipment. I would like very much for you to write me just, about when you think you will want this first shipment, so that we can make our arrangements accordingly. Since I last saw you the raw material out of which these corrugated boxes are made has advanced about twenty-five per cent., and naturally we want to protect ourselves as much as possible. For that reason I would appreciate very much if you would give me an idea, as soon" as you can, of how many boxes you will need this season, and I will then cover for that amount. I would also like for you to try and find out how many Mr. Roberts will use this year, as we want to take care of that business also, and want to protect ourselves accordingly. I know that you will understand just exactly what information I am after; and with kindest regards and’best wishes for a big crop this year, I remain,
    “Yours very truly, L. J. Rosenberg.” -
    “Atlanta Paper Co., Atlanta; Ga., 2/28/16.
    “Mr. A. J.- Evans, Fort Valley, Ga.
    “Dear Sir: We take the liberty of writing you with reference , to the order which you kindly placed with our Mr. Rosenberg for boxes. The conditions that confront us to-day with reference to board are serious, and in order to protect ourselves it is necessary that we send in specifications to the mill and bring the paper to Atlanta. We would therefore appreciate your kindly looking into this matter thoroughly, advising us what quantities you would want to take out on your first shipment, so that we can have the board made up! . We feel sure that you will understand our position in the matter, and remain,
    “Yours very truly, Atlanta Paper Co., Moss, Treas.”

      The petition further alleged that before the time for performance the defendant repudiated its contract and refused to perform it, and that by virtue of such breach the plaintiff was obliged to pay for said corrugated shipping-cases the sum of $9250, the market price of> them at the time of the breach, and that said sum was $2360.75 in excess of the price contracted to be paid defendant, this excess sum being the amount of damage sustained by the plaintiff, for which he prayed judgment.
    To this petition the defendant demurred generally, and specially upon several grounds. The principal ground was that “there is in the petition set up no binding contract in writing, upon which a recovery can be had against this defendant. The offer of the plaintiff, while signed by him, is not, as demanded by the statute of frauds, accepted by this defendant, and as a result thereof there is set up in the petition no contract in writing by which this defendant is bound and under which the plaintiff can recover.” The plaintiff amended his petition to meet the grounds of special demurrer, and added the allegations, that the defendant, by writing the letters hereinbefore quoted, lulled the plaintiff into the belief that it would fill the order in accordance with the terms of their contract, and that the plaintiff relied on the contract and allowed the material embodied in the order to advance in price before the contract was breached, and thus suffered damage; and “that defendant and plaintiff treated the contract as a valid, binding contract.” To the petition as amended the defendant demurred upon the ground that the allegation that the defendant “by said letters lulled the plaintiff into the belief that it would fill the order” was a conclusion not justified by the letters themselves ; that writings which simply “lulled” the plaintiff into a belief that the order would be filled were not a compliance with the statute of frauds; and that the allegation that plaintiff and defendant treated the contract as valid and binding was a conclusion of the pleader and too general in its statement.
    The trial judge sustained the general demurrer to the petition as finally amended, and the plaintiff excepted.

      Dodd & Dodd, for plaintiff.

      Rosser, Slaton, Phillips & Hophins, for defendant.
   Harwell, J.

The controlling questions in this case are, (1) whether the writings attached to the petition as exhibits, consisting. of plaintiff’s offer and the two letters written him by the defendant and its agent, sufficiently evidenced in writing a complete contract between the parties; and (2) whether the letters written by defendant to plaintiff were sufficient to lull the latter into the belief that the defendant would fill the order, and thereby estop the defendant from denying that such a contract existed.

1. While a contract can be made by correspondence through mail as well as when the parties are together, the same rules applying in either case, in order to make a binding contract the offer of the seller must he accepted by the purchaser unequivocally, unconditionally, and without variance of any sort. George W. Muller Mfg. Co. v. Benton, 137 Ga. 411, 416 (73 S. E. 669). Unless the offer of the plaintiff in this case to buy from the defendant the specified number of shipping-cases at the time specified was so accepted by the defendant in writing, there would be no enforceable contract, since the order was for goods- amounting to more than $50 in value, and the contract of sale therefore within the purview of the statute of frauds. Civil Code, § 3222 (7). The only writings relied upon to show such an acceptance are the two letters set out in the petition. Can these letters be said to constitute an absolute, unequivocal, and unconditional acceptance by the defendant of the plaintiff’s order? We do not think they can be so considered. It is true that the letter from the defendant company of Eeb. 28, 1916, acknowledged receipt of the order obtained through its agent, Rosenberg. While there is some conflict in the decisions of the courts on this question, the weight of authority is to the effect that the mere acknowledgment of the receipt of an order, even though coupled with the assurance that the same should receive prompt attention, is not sufficient to show acceptance of the offer. The reason for this ruling is ably-given in the case of Manier v. Appling, 112 Ala. 663 (20 So. 978), where the Supreme Court of Alabama held that “acceptance by a wholesale merchant of an order for the purchase of goods is not shown by evidence that the merchant wrote to the buyer, acknowledging receipt of the order, and stating that it should have prompt attention.” To the same effect see also Courtney Shoe Co. v. Curd, 142 Ky. 219 (134 S. W. 146, 38 L. R. A. (N S.) 903); Van Keuren v. Boomer, 143 App. Div. 785 (128 N. Y. Supp. 306); National Cash Register Co. v. McCann, 80 Misc. 165 (140 N. Y. Supp. 916). In Cheboygan Paper Co. v. Swigart Paper Co., 140 Ill. App. 314, it was held that an acknowledgment of the receipt of an order, saying that the same had gone forward to the mill for their attention, and would be filled as quickly as the orders now placed with the mill were out of the way, was not such an unconditional acceptance as to constitute a completed contract. We do not think that a fair construction of the letter written by the Atlanta Paper Co. to Evans on Feb. 38, 1916, would authorize the conclusion that the same was an unconditional acceptance of his offer. The letter asks the plaintiff to kindly look into the matter thoroughly, “advising us 'what quantities you would want to take out on your first shipment, so that we can have the board made up.” This letter sought information from the plaintiff as to the quantity he would desire on the “first shipment.” The order specified unconditionally that the goods were to he shipped on July 30th, and makes no mention of different shipments at different times. We think, for this additional reason, the acceptance of the offer was not such an absolute, complete, and unconditional acceptance as to effect a definite contract between the parties. See Decker v. Gwinn, 95 Ga. 518 .(30 S. E. 340); George W. Muller Mfg. Co. v. Benton, supra; Dukes v. Gore, 11 Ga. App. 744 (76 S. E. 365). Whether or not the defendant’s agent had the power to bind the company by,an acceptance, it is true that the order was not signed by the agent of the company, and until unconditionally accepted by the company no contract existed. See Cable Co. v. Hancock, 3 Ga. App. 73 (58 S. E. 319).

3. We concede that, under the ruling in Pitcher v. Lowe, 95 Ga. 433 (33 S. E. 678), the seller may by his conduct lead the buyer to believe that his offer has been accepted and to act upon that belief, and by such conduct estop himself from afterwards denying the existence of a valid, binding and enforceable contract. In that case it was held: “An agent, in behalf of Ms principal, having sold goods to another at a specified price, the sale being conditioned upon the principal having the goods in stock when the order reached him (the goods, in case the order .was accepted, to be shipped when requested by the buyer), and the principal, upon receiving the order which was signed by the agent, having sent a letter to the buyer acknowledging its receipt,- and, without stating that the goods were not in stock, asking for references as to the buyer’s financial standing, -which the latter, in a letter recognizing the validity of the order, gave; and thereafter the principal, by his conduct, having allowed the buyer to believe that his financial references were satisfactory and that the order was duly accepted, and to act upon that belief, the buyer had the right to treat the contract of sale as complete, to insist upon its fulfillment, and to recover damages for a breach of the same, although in point of fact the goods in question were not in stock at the time the order was received as above stated.” The facts alleged in the petition in the instant case, however, do not bring this case under the ruling announced in the case just cited, and do not authorize this court to hold that this defendant’s conduct was sufficient to lull •the plaintiff into the belief that his order was accepted and would be filled. The plaintiff did not complete the contract by giving to the defendant the information requested by it in its letter of Feb. 28, 1916, and the minds of the contracting parties had never met as to the time of delivery of the cases or the quantities of the respective deliveries.

Since the judgment of the trial judge in sustaining the demurrer is affirmed on the ground that no complete written contract existed between the parties such as would take it without the provisions of the statutes of frauds, it is not necessary to decide whether the clause “this order is given subject to crop conditions and decline in price,” embodied in the order, rendered the contract so indefinite as to make it incapable of enforcement, as is contended in the demurrer.-

Judgment affirmed.

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


text:
    8912.
    Kelly et al. v. Cunard, constable, for use etc.
    Decided October 31, 1917.
   Broyles, P. J.

1. It having been agreed between counsel that the original records, if relevant, could be used in evidence, the court erred in refusing to allow the defendants to put in evidence the original claim filed on August 11, 1915, upon the levy of the distress warrant, and the entries thereon which showed .that the claim had been sustained and the levy dismissed on February 19, 1916.

2. The evidence introduced did not demand the verdict, and the court erred in directing it, and in refusing to grant a new trial.

Judgment reversed.

Bloodworth and Banvett, JJ., ooneur.

Action upon bond; from Jasper superior court — Judge Park. March 16, 1917.

E. M. Baynes, for plaintiffs in error. Doyle Campbell, contra.