text:
    11151.
    Hines, director-general, v. Evitt.
   Jenkins, P. J.

1. This was not a suit to recover damages based solely upon the theory of a wilful and wanton act perpetrated by the servants of the defendant, and only upon the proof of which a recovery would be justified; consequently the rulings made in Savannah Electric Co. v. McElvey, 126 Ga. 491 (55 S. E. 192), and Southern Railway Co. v. Wiley, 9 Ga. App. 249 (71 S. E. 11), are not controlling in the defendant’s favor.

2. The second and third special grounds of the motion for a new trial are without merit, since the excerpts from the charge there complained of are not erroneous within themselves, and must be taken in connection with other portions of the charge, where it was plainly stated that the plaintiff could not recover if, by the exercise of ordinary care on his own part, tlie injury could have been avoided. Atlanta & West Point R. Co. v. Miller, 23 Ga. App. 347 (3) (98 S. E. 248).

3. Where suit is brought in this State to recover damages for personal injuries sustained in the State of Tennessee, the rights of the parties as to the merits of the case, as distinguished from the procedure, are to be determined by the law of Tennessee; and whore no statute of ■ that State is pleaded or shown, it will be presumed that the common law is of force there. Lay v. Nashville, Chattanooga & St. L. Ry. Co., 131 Ga. 345 (62 S. E. 181).

4. Under the common law, the rule of comparative negligence did not obtain, and any negligence on the part of the plaintiff which, taken in connection with the negligence of the defendant, contributed to the proximate cause of the injury would bar a recovery. Under that rule the degrees of the plaintiff’s negligence were not considered, but slight negligence was taken to mean “ a slight want of ordinary care.” 7 A. & E. Enc. Law (2d ed.) 373 (2), 375 (4), 377 (5); Macon & Western R. Co. v. Davis, 13 Ga. 68 (10). The trial judge, under the rule of the common law, properly omitted to give in charge the law of comparative negligence, and his charge on contributory negligence was in conformity with the rule above stated, and in the absence of any request was sufficiently full.

Decided August 13, 1920.

Action for damages; from Whitfield superior court-—-Judge Tarver. November 29, 1919.

The suit was originally against the Southern Railway Company, and by amendment Walker D. Hines, director-general of railroads, was substituted as defendant. The verdict was against the defendant, and the exceptions are to the overruling of his motion for a new trial.

1. The petition alleges: that the defendant has injured and damaged the plaintiff in the sum of $3,000 by reason of the wrongs and injuries hereinafter set out; that on September 30, 1918, the plaintiff bought at Cleveland, Tennessee, a ticket to Dalton, Georgia, intending to take passage on the train passing Cleveland about 5 o’clock a.m. that day, and went to the train and in the exercise of all ordinary care and diligence got upon the steps of the passenger-coach, and as he did so an employee of the defendant, either the conductor or the flagman, in uniform, shut the door of the car and prevented him from getting on the train; that with one hand he knocked on the door of the said coach several times, but the said servants of the defendant negligently failed and refused to open the door, and carried him about 20 feet and until the engine pulling the train gave a sudden jerk and threw him violently upon the ground and injured him in a manner stated; that the defendant owed him as a passenger extraordinary care and diligence, but was negligent and careless in preventing him from getting upon the train as aforesaid, and in closing the door and preventing him from getting up the steps, and in shutting the door in his face, and in causing the engine and train to launch and jerk suddenly and to throw him. to the ground; “in all of which said acts and failures defendant was negligent, and wanting not only in extraordinary care as required by law, but was wanting even in ordinary care and diligence to petitioner.” The first special ground of the motion for a new trial is to the effect that the trial judge, in his charge to the jury, erred in treating the suit as an action for mere negligence, when the suit “was predicated upon a wilful and intentional violation of the plaintiff’s rights as a passenger.”

Judgment affirmed.

Stephens and Smith, JJ., concur.

2. Special grounds 2 and 3 relate to the following instructions to the jury: (2) “If the plaintiff shall have made it appear that he was injured in the operation of the railway train of the defendant, then the presumption arises that the defendant was negligent in each of the particulars specified in the declaration, and unless the defendant shows that it exercised extraordinary care and diligence in the particulars wherein it is alleged to have been negligent, the plaintiff 'would be entitled to recover.” (3) “If you find, however, that the plaintiff was standing on the lower step of the passenger coach on the occasion, and that an employe of the defendant closed the door of the passenger coach in his face, as alleged in the petition, if you find, as I have stated, that this occurred, and that it was a negligent act, and that as the proximate result of this act the plaintiff sustained personal injuries for which he sues, he would be entitled to recover.”

These excerpts from the charge are complained of respectively for the reasons: (a) that they invaded the province of the jury and suggested that the acts complained of, if the jury found that they occurred, were negligence for which the defendant might be found liable; and (6) that they purport to be a complete statement of the circumstances under which the plaintiff would be entitled to recover, but omit any - reference to the effect of want of care on the part of the plaintiff; and it is contended that the instructions should have been qualified in this respect. The first excerpt is complained of for the additional reason that “the jury should not have been instructed that they might find a verdict upon the presumption alone, but should have been required to consider it along with the other evidence in the case and make a verdict on the whole.”

3, 4. It is alleged that the court erred in failing to charge the jury in substance that if the plaintiff were negligent, however slightly, in bringing about his injury, or in failing to avoid the same, Und such negligence contributed appreciably to the injury, he could not recover; the injury having occurred in Tennessee, where the common law presumptively is of force. For this reason it is alleged that the court erred in giving what “ purported to be a complete summary of the defenses open to the defendant,” in the following charge: “ If he was injured "as the proximate result of his own negligence, he would not be entitled to recover. If he failed to exercise ordinary care and diligence for his own safety on the occasion in question, and his failure to so exercise ordinary care 'and diligence for his own safety contributed to this injury, he can not recover.”

Maddox, McCamy & Shumate, for plaintiff in error.

W. C. Martin, W. E. & W. G. Mann, contra.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    11179.
    McDonald v. Citizens Bank of Ludowici.
    Decided August 13, 1920.
    Complaint; from Liberty superior court — Judge Sheppard. October 25, 1919.

      A. S. Way, for plaintiff in error.

      Seabrook & Kennedy, W. C. Hodges, contra.
   Jenkins, P. J.

1. If A, a married woman, with the knowledge and at the suggestion of B, signs a note as principal in favor of C, but without any consideration flowing to her, and with the understanding that B will indorse the note, it is competent for the married woman, in a contest relating solely to an adjudication of the relative rights of herself and B, to show this state of facts by parol, and to have her liability to an innocent purchaser of the note adjudged to be secondary to that of B. National Bcmh of Tifton v. Smith, 142 Ga. 663 (1) (83 S. E. 526, L. R. A. 1915B).

2. The evidence authorized the jury to find that the original transaction, of which the note sued on was a renewal, was in accordance with the foregoing statement.

Judgment affirmed.

Stephens and Smith, JJ., concur.


author: Stephens, J.

text:
    11180.
    Peeples v. Aultman.
   Stephens, J.

1. Where a plaintiff fails to prove his case as laid, a nonsuit is proper.

2. Where a plaintiff declared upon an alleged contract between him and the defendant wherein it was agreed that the plaintiff should as a real-estate broker sell for the defendant, for a specified commission, certain lands, and where the plaintiff’s evidence upon the trial showed that prior to any performance of the contract sued upon the plaintiff entered into a partnership in the real-estate business with another, and after such partnership had been formed the partner entered into negotiations with the defendant and obtained a modification of the terms of the original agreement made between the plaintiff and the defendant relative to-the sale of the land, there was shown no right in the plaintiff to recover under the alleged contract declared upon, and a nonsuit was proper.

Decided August 13, 1920.

Complaint; from city court of Tifton — Judge Price. November 14, 1919.

J. E. Peeples sued for certain commissions -alleged to be due him as a real-estate broker, upon the sale of certain lands of the defendant. From the evidence at the trial it appeared that early in the year 1919 the defendant listed with the plaintiff certain lands for sale 'at $45 per acre, and agreed to pay him a commission of 5% on the sale. In June or July, 1919, the plaintiff formed a partnership with J. M. Peeples, under the firm name of J. E. Peeples & Son, and subsequently and before performance of the alleged contract J. M. Peeples entered into negotiations with the defendant which resulted in an agreement by the defendant to accept $40 per acre for his lands, and to pay a commission of 5%. The .property was afterwards sold upon this basis, the defendant refused to pay the commission agreed upon, and J. E. Peeples brought this suit. The trial judge granted a nonsuit, upon the ground that “the evidence showed that the cause of action, if any, was in the partnership composed of J. E. Peeples and J. M. Peeples, and not in the plaintiff.”

Fulwood & Hargrett, for plaintiff.

Ridgdill & Mitchell, R. D. Smith, for defendant.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    11183.
    Anderson et al. v. First National Bank of Millen.
    Decided August 13, 1920.
    Affidavit of illegality; from city court of Millen — Judge Dekle. October 22, 1919.

   Jenkins, P. J.

Exception is taken to the overruling and dismissal of an affidavit of illegality in which it was alleged that the fi. fa. was proceeding illegally for the reason that, although it was issued after the filing in the court below of the remittitur from this court, it was issued before the remittitur was made the judgment of that court. Held: The affidavit of illegality presented no valid reason why the proceeding under the fi. fa. should be suspended. Civil Code (1910), § 6217; Knox v. State, 113 Ga. 929 (1) (39 S. E. 330).

Judgment affirmed.

Stephens and Smith, JJ., concur.

A. S. Anderson, for plaintiffs in error.

W. Woodrum, contra.


text:
    11190.
    Raffaelli v. Raffaelli.
    Decided August 13, 1920.
    Writ of lunacy — appeal; from Bibb superior court — Judge Mathews. July 22, 1919.
    Application for certiorari was denied by the Supreme Court.

      Grady Gillon, D. L. Churchwell, for plaintiff in error.

      Ross & Ross, contra.
   Jenkins, P. J.

1. This ease having, by appropriate order of the Supreme Court, bpen transferred from that court to this court, its action is equivalent to a holding that no constitutional question is.properly raised and presented for determination by the record.

2. The principal remaining contention made by the plaintiff in error was specifically ruled upon in the case of Forester v Camp, 145 Ga. 48 (88 S. E. 575), wherein it was held that “Under section 3094 of the Civil Code of 1910, the payment of costs and giving bond and security for all future costs and damages is a prerequisite to entering an appeal to the superior court from the return of the committee and judgment of the ordinary thereon, under sections 3092 et seq., to determine whether the person named in the commission is subject to be committed to the State Sanitarium. . . Section 3094 of the Civil' Code of 1910 is not modified by section 5010, so as to allow an appeal to the superior court without paying costs and giving bond by one who has been declared a lunatic, and who -has made a pauper affidavit that owing to poverty he is unable to pay the cost or give security as required by law.”

3. The record discloses nothing that would bring this ease within the rulings made by the Supreme Court in Short v. Cohen, 11 Ga. 39, Lyner V. Jackson, 20 Ga. 773, or Holt v. Edmondson, 31 Ga. 357, to the effect that a substantial compliance with the provisions of law was shown in those cases. In the instant case nothing appears which could be taken to indicate that the action of the clerk in any wise hindered or misled the appellant in any bona fide effort on his part to comply with the provisions of the statute. Here no bond was given, and there was no attempt to pay costs; on the contrary, the appeal was in fact attempted in forma pauperis. The action by the court below in dismissing the appeal is

Affirmed.

Stephens and Smith, JJ., concur.


text:
    11197.
    Floyd v. Kaminsky et al.

    Decided August 13, 1920.
    Trover; from city court of Savannah. — Judge Freeman. October 28, 1919.

      Gignilliat & O’Neal, J. S. Harrison, M. H. Bernstein, for plaintiff in error.

      O’Neal & Kravitch, contra.
   Stephens, J.

1. This being a suit in trover to recover an automobile the title to which is admittedly in the plaintiff, and the only issue being whether or not the demand made upon the defendant had been properly and timely made, a verdict for the plaintiff is supported by the evidence, from which it is reasonably inferable, although not positively appearing in express language, that the demand was properly and timely made.

2. The motion for new. trial contains only the general grounds. The verdict being supported by the law and the evidence and having the approval of the trial judge, will not be disturbed.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    11202.
    Holderness v. Hutcheson Manufacturing Co.
   Jenkins, P. J.

1. Where a contract of purchase and sale is entire, the buyer may promptly rescind for a deficiency in the quantity of the commodity delivered; but where, on reporting a deficiency, he. does not elect to rescind, but on the contrary retains the goods and renders an account setting forth the quantity claimed to have been actually received, together with a statement of the payments theretofore made thereon at the contract price, and the balance due in accordance with the alleged deficiency, if the seller retains such payments under such notice, even though protesting against the reported shortage, ■ such conduct on the part of the purchaser and the seller amounts to a mutual waiver of the original terms to the extent of rendering binding and unconditional the sale of the undisputed items.

2. Where it appeared and was admitted that the purchaser proved to have been in error as to the shortage thus claimed and reported by him, and the judge properly submitted to the jury the issue between the parties as to whether at the time qf such erroneous report the remaining portion of the goods included by the terms of the original sale was withheld (as contended by the seller), or whether it remained the intention of the parties that the sale should include the actual and entire list of commodities, subject only to an adjustment of the dispute as to the quantity received and owed for, the seller denying that he had accepted payment for the disputed items, the purchaser contending that he had, it was error for the judge to charge the jury, in substance, that before the plaintiff in trover (who was the seller) could recover, he must show that he had restored or offered to restore the amounts thus received and accepted by him in payment on undisputed items of the sale.

Decided August 13, 1920.

Trover; from city court of Carrollton — Judge Beall. November 3, 1919.

S. Holderness, Willis Smith, Buford Boykin, Watkins, Russell & Asbill, for plaintiff.

Lloyd Thomas, C. E. Roop, for defendant.

3. The error in rejecting testimony as complained of in the 2d ground of the amendment to the motion for a new trial, was cured by the subsequent admission of the same evidence.

4. The assignment of error made by ground 17 of the motion for a new trial is without merit, since there was a disputed issue as to whether or not the holder had stored the cotton with the defendant with the right and privilege on the defendant’s part to work up and consume the same in its mill whenever it might desire, paying the seller the market price therefor on any date on which he should demand a settlement. If the cotton was stored with such a privilege on the defendant’s part, an action in trover would not lie therefor after the cotton had been «actually consumed under such authority.

5. The remaining grounds of the motion for a new trial are based on matters not likely to arise on another trial, and therefore are not dealt with.

Judgment reversed.

Stephens and Smith, JJ., concur.


text:
    11255.
    Seabrook Coal Company v. Moore.
   Jenkins, P. J.

1. “ In a purchaser’s suit for damages because of the failure of the. seller to deliver the goods in accordance with the terms of the contract of sale, generally the measure of damages is the difference between the contract price and the market price at the time and place of delivery.” Truitt v. Rust & Shelburne Sales Co., 25 Ga. App. 62 (102 S. E. 645), and cit.

2. A contract of which the obligations are mutually binding upon the parties thereto is not rendered unilateral merely because matters concerning the details of performance are left to the option of one of the contractors. Where no time for the performance of a contract is specified, • the law will presume that a reasonable time was contemplated; and where by the terms of a contract of purchase and sale the commodity was to be shipped “ as ordered,” it was incumbent upon the purchaser to direct shipment within a reasonable time. 13 Corpus Juris, 270, 271; Maddox v. Wagner, 111 Ga. 146, 148 (36 S. E. 609). Applying these principles of law, the petition was not subject to general demurrer.

3. Although the plaintiff amended his petition by alleging that, under the terms of the contract, it was understood and agreed that the coal was to be ordered out for use during the winter season, the exclusion of the testimony offered by the defendant for the purpose of showing the meaning of “winter season” in the coal business was necessarily harmless, since the ordering out of the coal testified to and relied upon by plaintiff was within the period covered by the rejected testimony.

Decided August 13, 1920.

Action on contract; from Fulton superior court — Judge Pendleton. November 4, 1919.

On August 8, 1916, Moore gave a written order to the Sea-brook Coal Company for 20 cars of coal, at $1.35 per ton, one car to be shipped immediately, and the others “as ordered.” The company shipped three cars instead of one. Moore complained of this, and also as to the quality of the coal, but sent a check to cover the price of the three cars. On the 21st of the next month the company notified Moore that they had cancelled the contract; saying “this order was for -prompt delivery, and we can not hold -same open any longer.” Moore then stopped payment of the check that he had given for the three cars, but later it was agreed that he should pay the check and that the company should carry out the original contract. The check was not paid when presented the second time, but was paid on a third presentation. In letters of Moore’s attorneys, dated November 2 and November 8, 1916, demand was made on tbe coal company for shipment of the remaining 17 cars of coal, under the contract, but the demand was not complied with. Moore, alleging that he was forced to go into the open market and buy coal at an advanced price, sued the coal company for the difference in price, alleged to be $765. A general demurrer to the plaintiff’s petition as amended was sustained: the trial of the case resulted in a verdict for $765 against the coal company, and its motion for a new trial was overruled after the plaintiff had written off $135 from the verdict. The defendant excepted to the rulings stated.

4. “An absolute refusal by one party to perform an executory contract containing mutual obligations, prior to the date or dates fixed for performance, if such repudiation goes to the whole contract, amounts to a tender of a breach of the contract; and if accepted as such by the opposite party to the contract, it constitutes an anticipatory breach, and the injured party may at his election at once sue and recover his entire damages. The opposite party is not required to accept a tender of a breach of the contract, but he may elect to keep the contract in force for the purpose for which it was made, and in such case his own obligation, as well as that of the other party, will continue until the time for performance, as fixed by the contract.” Phosphate Mining Co. v. Atlanta Oil & Fertilizer Co., 20 Ga. App. 660 (1) (93 S. E, 532). The plaintiff does not, under the pleadings as amended without objection, rely upon the alleged anticipatory breach in October, as set forth by the stricken allegations of the original petition; but, under his amended pleading, relies upon the subsequent November breach of the contract. The evidence sustains the verdict upon the plaintiff’s amended contention to the effect that the coal was ordered out early in November, and that the defendant at that time failed and refused to comply with his contract; it also sustains the verdict by furnishing sufficient data by which the damages could be arrived at.

Judgment affirmed.

Stephens and Smith, JJ., concur.

Little, Powell, Smith & Goldstein, for plaintiff in error.

Edgar Watkins, Frank Harwell, W. I. Hobbs, contra.


author:
Jenkins, P. J.
      Smith, J.,

text:
    10758.
    CITY OF THOMASTON v. ATKINSON.
    Decided August 16, 1920.
    1. “ A broken or fallen wire in a street, charged with a dangerous current of electricity, affords a presumption of negligence on the part of the owner of the wire.” It is for the jury to decide every disputed issue of fact made by the evidence; and the verdict in favor of the plaintiff in this case cannot properly be set aside on the ground that the evidence fails to authorize a finding that the defendant was liable. Nor can it be held that the amount of the verdict is unauthorized.
    2. The excerpt from the charge of the court relative to the use of the annuity tables in the event the jury should see proper to employ them in the computation required to reduce to its present or cash value the amount which they might find as gross damages, • although admittedly erroneous, was necessarily harmless, since the rule as stated failed to furnish any guide whatever by which the gross damages could be reduced to their present value, and consequently the verdict returned could not have been reached in accordance with the erroneous, instruction, and it must therefore be assumed that the verdict was arrived at by the application of some other and correct rule given them in charge, or by the use of some other method known to and approved by them.
    3. The other grounds of the motion for a new trial, pertaining to alleged errors in the charge and in failing to charge, are without merit.
    Action for damages; from Upson superior court— Judge Searcy. June 9, 1919.
    Application for certiorari was denied by the Supreme Court. Mrs. Atkinson sued the City of Thomaston for damages on account of the death of her husband, which was alleged to have been caused by contact with an electric wire. The trial of the case resulted in a verdict against the city for $5,000, and,’ the defendant’s motion for a new trial being overruled, it excepted.

      W. Y. Allen, M. H. Sandwich, R. L. Berner, for plaintiff in error.

      James R. Davis, Claude Worrill, Lawton Nalley, contra.
   Jenkins, P. J.

The evidence adduced in behalf of the plaintiff tended to show substantially the following facts: Her husband, with his young son, was walking from their home in East Thomaston along Thompson street into the City of Thomaston. It was the first time they had passed along this street. The right of way of this public street was 30 feet wide, and within it a roadway 18 feet wide had been opened up and laid out. No sidewalk had been constructed, but within the right of way and along the elevation of’ a slight embankment there was a well-defined and beaten pathway, used by pedestrians and the public generally. Along and by the side of this pathway was stretched a line of poles on which were strung two wires. The city had at a previous time maintained from its municipal light system an arc-light out at the end of this line of wire, near a residence which' had been there, but, the residence having been burned, this light had been discontinued for some three or four years and the line of wire referred to had not- thereafter been made use of in any way. The insulation had become worn and rotten and the wire had become exposed. Some three months previous to the date of the homicide one of the posts on this line was blown nearly over, away from the street, so that, as left leaning, its top stood but a few feet above the ground. Soon thereafter and several weeks or months prior to the date of the homicide the electric wire had pulled away from the post, and, with the wooden knob and glass insulator by which it had been attached to the post, remained hanging along and over the said path and 'at the place referred to, only some three to five feet above the same. When the deceased, accompanied by his nine-year old son, walking in the path, had reached the point referred to, the father, thinking the wire was a telephone wire, took hold of the knob left hanging on the wire, and explained to his son how it was fastened to the pole. After doing this without injury, he advanced a few additional steps forward in the path, and, in order to lift the sagging wire out of the path, took hold of it with his left hand, but was hit by the current and killed.

The defendant denied the existence of the defined public pathway referred to. It sought to show, both by oral testimony and by photographs taken a day or two after the homicide, that the wire, though sagging, hung well above the head of the decedent when walking or standing; that he voluntarily left the roadway in which he and his son had been traveling, and met his death by deliberately reaching up and catching hold of what he supposed was a telephone wire, in order to show his son how it had. been attached to the pole, or that in thus pulling it down he temporarily lowered the wire, which was the occasion of his thereafter catching hold of it after taking a few additional steps forward; which act it is contended was in any event negligent 'and unnecessary, as he could easily have avoided the wire by walking out of the path and around it.

Counsel for the plaintiff in error presents an exceedingly forceful argument in support of their contention that the judgment of the court below, overruling the motion for a new trial, should be reversed on the theory that the verdict was contrary to law, as being altogether without evidence to support it. With this proposition, however, we cannot agree. “A broken or fallen wire in a street, charged with a dangerous current of electricity, affords a presumption of negligence on the part of the owner of the wire.” Eining v. Georgia Railway & Electric Co., 133 Ga. 458 (66 S. E. 237). While there was some dispute as to whether or not the pathway in which the deceased met his death was a defined and generally used public pathway, the main contest in this case centers around the question as to whether or not the homicide was brought about by the negligence of the deceased himself, and whether it could have been avoided by the exercise of ordinary care on his part. As will be seen by reference to the foregoing statement of the contentions of parties as made by the evidence at the trial, the jury were called upon to resolve a number of disputed issues of fact. Among these issues is the question 'as to whether the deceased ought to have known that the wire he caught hold of at the time of his death, in order, as the plaintiff contends, to push it out of his pathway, was an electric wire; and likely to be charged with a deadly current. It appears to be undisputed that the deceased thought the wire was a telephone wire; we have been unable to find in the record any evidence going to show that he knew that one of these wires was an electric wire and likely to be charged with current, and that he merely guessed wrong •as to which of the two wires he was catching hold of. The evidence is not clear as to whether either of the wires was a telephone wire. It is clear, from the evidence of witnesses introduced on behalf of the defendant, that the use of this line of electric wires had been entirely discontinued for a number of years prior to the date of the homicide. The reason given by the defendant for allowing the line of wire, all use of which had long since been discontinued, to remain charged with current and stretched along this highway is that the authorities had expected that houses would be erected in that vicinity, but this expectation had not materialized. It seems also clear that several months had elapsed since the post had blown oyer, and that the wire had pulled loose from the post and remained sagging over the path for a period of at least several weeks. In view of all the evidence in the case, we think it was a question for the jury to determine whether the deceased ought to have known of the. danger in taking hold of the wire which occasioned his death, in his endeavor to push it out of the public pathway. Sou. Bell Telephone &c. Co. v. Davis, 12 Ga. App. 28, 37 (76 S. E. 786). We think the facts materially differ from those' outlined in Columbus Railroad Co. v. Dorsey, 119 Ga. 363 (46 S. E. 635), where it was held by the Supreme Court that no recovery could be had for the death of an experienced lineman of a telephone company who was killed by negligently coming in contact with a deadly and exposed wire while climbing a pole on which the wires were strung, he knowing or being able to know by ordinary intelligence of the danger from such exposure. The question in that and similar eases was whether or not the lineman negligently touched the wire, whereas one of the main issues in this case was whether it was negligence for him to touch it.

It will be noted that according to the evidence for the plaintiff, the deceased did not meet his death in voluntarily catching hold of the wooden peg, in order to show his young son how it had had been fastened to the pole, but.had left this point, was con-tinning his journey, and had advanced several steps forward, when he met his death by undertaking to push the sagging wire out of his pathway. If the pathway was a public pathway, which he had the right to occupy and travel in, he did not become a mere volunteer in so using it, merely because he had previously caught hold of the peg as indicated, but the question at last is whether his act in undertaking to push the wire out of his pathway, under his belief as to its safety and under the facts and circumstances revealed by the evidence, amounted to such lack of ordinary care as would bar a recovery.

Among other rules and instructions given the jury upon their duty to reduce to its present worth whatever amount, if any, they might find to be the-gross sum chargeable as damages against the defendant, the learned trial judge charged them, in reference to their right to use the annuity tables, as follows:' “If you have found from the evidence the value of the plaintiffs life as a whole,—that is the gross value of the plaintiffs life, — in order to reduce that value to a sum representing the present or cash value of the sum found by you, as representing the gross value of the plaintiffs husband’s life, you would take this gross sum, as you find it to be, if you find such an amount, and take the amount of dollars or fraction of dollars in the column under seven per cent., opposite the age of the plaintiffs husband in this annuity table, and you multiply the gross value of his life, as you find it to be, by these figures, which you find under this seven per cent, column; then you would have, by the use of this table, the present cash value of such gross sum.” In a written opinion the trial judge overruled the motion for a new trial, on the theory that this erroneous instruction must have been harmless, since more than one rule was given for making this calculation, and the jury were further instructed that any correct-rule known to and approved by them might be employed in arriving at the-present or cash value of the amount they might find as the gross damages. He thought it probable, if not certain, that the jury did not make use of this erroneous instruction, but more probably employed some other rule, since, in his opinion, if the erroneous rule had been used, the amount of the verdict could not have been arrived at. If it is possible to satisfy ourselves that in determining the amount of the verdict the jury must have excluded from consideration this admittedly erroneous instruction, the giving of such excerpt from the charge would not authorize a reversal, but would for that reason be treated as harmless. There are any number of adjudications to the effect that a verdict will not be disturbed on account of erroneous instructions which were manifestly and necessarily harmless to the complaining party. For a number of reasons an erroneous charge does not necessarily amount to reversible error. For example, the verdict as rendered may have been demanded, the erroneous charge may have been invited by the complaining party, the inaccuracy may consist in a mere patent slip of the tongue, it may relate to an irrelevant or immaterial matter such as could not reasonably have misled the jury in respect to the true issue or issues involved, the error complained of may be such as could militate only against the rights of the party who does not object. It is not our understanding of the law, however, that any presumption exists that an erroneous charge is harmless. Indeed, the presumption is the other way, and, as a general rule, in order to treat as harmless an erroneous instruction, there must be some way of satisfying ourselves that it in fact was harmless.

In the instant case one of the contested issues relates to the amount of the defendant’s liability, if any. The deceased was 38 years old, with an ordinary or average expectancy of nearly 29 years. He was earning at the date of his death $1.25 per day. On the basis of such average expectancy and of continued like earning capacity, an application of the rule would have resulted in a verdict of about $125,000. The defendant in error says that the rule was therefore manifestly disregarded. But there was medical testimony to the effect that plaintiff was afflicted with an incurable malady, which would necessarily have terminated his life within a period of two or three years. It was within the right of the jury, if they saw proper to do so, to accept this testimony. It is consequently argued by counsel for the plaintiff in error that the verdict rendered, for $5,000, might have been arrived at by an application of the erroneous rule above stated, and that there is no means by which it can be shown that such was not the case. In support of this argument they contend that if the jury did in fact accept the medical testimony just referred to, and applied the erroneous rules together with other instructions given them to the effect that they could consider any infirmity of the deceased, and consequent reduction in his future earning capacity, it is easy to see that the amount of the verdict returned might have been thus arrived at. While this supposition amounts only to a surmise, it is sufficient, they say, to show that there is no means of satisfying ourselves that the erroneous rule was harmless, since the amount of the verdict in no way indicates just how it was reached, while it could have been thus arrived at. The argument of counsel for the plaintiff in error convinces us that, as a purely mathematical proposition, it is possible and even easy to say that the jury could have reached the amount of the verdict by applying the erroneous rule. But while mathematically possible, it does not seem reasonably so. While we differ somewhat with the trial judge, who thinks that the amount of the verdict itself shows that it could not have been thus arrived at (for mathematically it easily could have been), we go further than he seems to go in thinking that it is merely more probable that they did not do so. In our opinion, it is manifest that they could not and did not. The excerpt complained of states within itself that the object of the instruction given was to provide a method by which the gross damages representing future earnings could be reduced to its present or cash value. As we see it, it is altogether impossible to suppose that an upright and intelligent jury would undertake to reduce the gross amount of damages representing future earnings down to its present or cash value by multiplying such total or gross sum by 11.033. On the very face of it, this would tremendously increase, and not reduce the amount, and would be contrary to not only the manifest but the expressed purpose of the rule. This portion of the charge, therefore, cannot be taken to have furnished any sort of rule or guide whatever by which the gross sum of future earnings could be reduced to its present cash value; and since on its face it entirely fails to furnish such 'a rule, it would be altogether unreasonable to suppose that the jury could possibly have sought to apply it. Atlanta & West Point Railroad Co. v. Miller, 23 Ga. App. 347, 353 (9) (98 S. E. 248).

The judge gave to the jury fully and fairly the principle of law to the effect that even though the defendant might have been guilty of negligence, yet if the injury could have been avoided by the exercise of ordinary care on the part of the deceased, the plaintiff could not recover. The trial judge, quoting literally from the plea of the defendant, charged the jury as follows: “Defendant further says that on the day it is alleged the husband of plaintiff was killed early in the morning, that plaintiff’s husband was walking in Thompson street, that he left said street and got on a side place or bank or pole outside of the street, without any cause or necessity, and negligently and recklessly seized one of the wires with his bare hand; that the husband of the plaintiff could have avoided the injury to himself by the exercise of ordinary care and diligence.” Defendant excepts to this charge because the judge did not on his own motion add thereto the following: “that is to say, by selecting the safe way by which to go to the City of Thomaston,” and further excepts to the failure of the judge to.charge, without request, the same principle, as follows: “When there is a safe and a dangerous way in which ,a pedestrian may walk and arrive at his destination, it becomes the duty of the pedestrian, in the exercise of ordinary care, to select the safe way, and if he abandons the safe way and undertakes to prosecute his journey in a path with an overhanging electric wire, which an ordinarily prudent man would not -do, and is killed as the result of so doing, his widow would not be entitled to recover.” The only eye-witness to the homicide was the deceased’s son, who is not a party to the litigation. There is really no testimony of probative value going to show that the deceased left the road and entered upon the path at about the place where the homicide occurred. It is true that the testimony of this boy, given at the coroner’s inquest, was admitted for the purpose of impeachment, and the record of his testimony thus previously given might so indicate, but this is all. Had the evidence authorized such a charge, and had proper request been made therefor, a failure to comply with the request might have been reversible error. Metropolitan Street Railroad Co. v. Johnson, 90 Ga. 500 (16 S. E. 49). But see Southern Ry. Co. v. Grizzle, 131 Ga. 287 (3) (62 S. E. 177). There was no error in the charge or' in the failure to charge concerning the city’s duty in keeping safe its public roadway.

. Judgment affirmed.

Stephens, J., concurs.

Smith, J.,

dissenting. I cannot agree with the rulings of a majority of the court. The only eye-witness to the accident was the son of the deceased, and this son was a small boy. His testimony was very uncertain and contradictory. The great weight of the testimony tended to show that the deceased was a volunteer, and that the' electric wire which caused his death was not in fact hanging over the road or path along which he was traveling, but was up on an embankment beside the path and could not be reached from the road. In view of these facts 'and the further fact that the verdict was quite large, I am of the opinion that the error of the court in charging on the mortality tables incorrectly, this being admitted by the presiding judge, is such as to require a reversal. It is possible, if not probable, that some member of the jury was misled by this erroneous instruction.


text:
    11143.
    Citizens Trust Company v. Butler et al.

    Decided August 16, 1920.
    (Certiorari was granted by the Supreme Court.)
    Trover; from Gity court of Savannah — Judge Freeman. October 30, 1919.
    The plaintiff corporation sought to recover in trover certain personal property to which it claimed title under a bill of sale purporting to have been executed to it by the Universal Light & Power Company, to secure a debt. This instrument was attested by two witnesses, one of whom was a notary public; it was dated March 24, 1919, 'and was recorded April 2, 1919. The notary public was secretary of the plaintiff corporation, and received a salary from it as such, but was not a stockholder of the corporation, and was not otherwise pecuniarily interested in it. There was no corporate seal on the instrument. When it was offered in evidence the defendants objected to it on the grounds: (1) that the notarial witness was secretary of the plaintiff corporation, the vendee, when the instrument was executed, and therefore was disqualified to attest it, and the record of it was not notice to third persons; and. (2) that it did not bear the seal of the corporation by which it purported to have been executed. The court sustained the objections, and, there being no other evidence of title, granted a nonsuit; and the plaintiff excepted to the rulings stated. Counsel for the plaintiff requested the Court of Appeals to review and reverse the ruling in the case of Barrow v. E. Tris Napier Co. v. Butler, 16 Ga. App. 309, and contended that it should not be applied where the notary is not a stockholder of the corporation, and on this point cited: 2 Ga. App. 721; 1 Corpus Juris, 808, sec. 117; 125 Cal. 320 (57 Pac. 1070); 36 Fla. 575 (18 So. 850); 48 Neb. 514 (67 N. W. 485, 37 L. R. A. 434); 196 Ill. 554 (63 N. E. 1049, 89 Am. St. Rep. 330); 113 Iowa, 216 (84 N. W. 1041); 70 Neb. 815 (98 N. W. 34); 32 Wash. 572 (73 Pac. 680); 1 Am. Dig. (Cen. Ed.), sec. 109, col. 871; 1 Am. Dig. (Decen. Ed.), 195-7, sec. 20 (3); 16 Am. & Eng. Ann. Cas. 141, notes; 23 L. R. A. (N. S.) 1075, 1078; 99 Ga. 451 (3, 4); 122 Ga. 439-40 (6); 145 Ga. 580 (2), 584-5; 6 Ga. App. 569-70; 149 Ga. 479 (distinguished); 143 Ga. 16 (3).
   Stephens, J.

1. The attestation of a secretary of a corporation, in his capacity as a notary public, to a bill of sale in which the corporation is the vendee is not sufficient to admit the bill of sale to record. Barrow v. E. Tris Napier Co., 16 Ga. App. 309 (85 S. E. 267).

2. The bill of sale not having been properly admitted to record, and there being no proof otherwise of its execution, it was properly rejected when offered in evidence by the plaintiff in a suit in trover by the vendee to recover the property therein mentioned.

3. There being no evidence to establish the plaintiff’s title to the property sued for a nonsuit was properly granted.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.

Anderson, Cann, Cann & Walsh, for plaintiff.

George H. Richter, for defendant.


text:
    11149.
    Central of Georgia Railway Co. v. Clements.
   Stephens, J.

1. Where the petition alleges a cause of action for damages arising from the maintenance and continuance of a nuisance which is not of a permanent character and which may be abated, and prays for damages on account of the diminished market value of the freehold, and the measure of damages is not excepted to by demurrer, and evidence in support of the same is admitted without objection, the defendant cannot complain of a charge of the court instructing the jury that the plaintiff’s measure of damages for the maintenance and continuance of tlie nuisance is the diminution in the market value of the property injured.

Decided August 16, 1920.

Action for damages; from Polk superior court—-Judge Irwin. November 15, 1919.

J. Branham, Maddox & Doyal, W. K. Fielder, for plaintiff in error.

John K. Davis, Mundy & Watkins, contra.

2. ’ The charge of the court confined the plaintiff’s right to recover to damages on account of the maintenance and continuation of the nuisance for four years prior to the filing of the suit, and fully and fairly submitted all the issues to the jury, and is not subject to any of the objections urged. In the absence of any request to charge, the defendant cannot complain that his theory of the case was not fully given.

3. It is fairly inferable from the evidence that the proximate cause of the plaintiff’s damage was the negligence of the defendant. The evidence supports the verdict, and it cannot be held to he excessive.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    11184.
    Southern Express Company v. Turner.
   Stephens, J.

1. While the Carmack amendment to the interstate-commerce act gives a right of action against the initial carrier for loss of or damage to goods in shipment in interstate commerce, whether the loss or damage is caused by the initial or a connecting carrier, a suit may nevertheless be maintained against a connecting carrier where it is shown that the loss or damage is occasioned by its negligence. Southern Railway Co. v. Morris, 147 Ga. 729 (95 S. E. 284).

2. While in a suit against a connecting carrier it must be alleged that the injury was caused by the negligence of the defendant, a petition which alleges that the “ defendant failed and neglected to safely carry and deliver said hog to petitioner at Valdosta, for when said hog reached Tupelo, Mississippi, it died, while in the possession and care of the defendant, and was not delivered to petitioner; . . that by reason of the failure of defendant to safely carry and deliver said property to petitioner, as aforesaid, he has been injured and damaged,” contains, as against a general demurrer, a sufficient allegation that the injury was caused by the negligence of -the defendant. Cincinnate, Hamiton & Dayton Ry. Co. v. Quincey, 19 Ga. App. 167 (91 S. E. 220).

3. Where the petition sets forth a good common-law action, an allegation that the defendant received the goods “ as in good order ” does not necessarily render the action one brought under the State law as codified in the Civil Code (1910), § 2752. Philadelphia & Reading Ry. Co. v. Venable, 117 Ga. 142 (43 S. E. 407).

4. The petition sufficiently set out a common-law action against the connecting carrier, and it was not error to allow an amendment thereto amplifying the allegations of negligence. The general demurrer and the motion to dismiss were properly overruled.

Decided August 16, 1920.

Action for damages; from city court of Yaldosta — Judge Cranford. November 14, 1919.

Robert C. & Philip H. Alston, E. P. S. Denmark, John G. Hart, for plaintiff in error.

E. K. Wilcox, contra.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


author: Jenkins, P. J. Jenkins, P. J.

text:
    11194.
    CHARLES v. TYLER.
   Jenkins, P. J.

1. Where a purchaser seeks rescission of a contract for the purchase and sale of machinery, together with a recovery of the price paid therefor, and his claim to a rescission and recovery is based upon the express terms of the sale agreement, and where the agreement provides that the purchaser’s right to rescind and recover back the purchase-money is conditioned upon his own compliance with certain obligations resting upon him, to the effect that after one day’s trial of the machinery he must immediately notify the seller in writing of any defects existing therein, and must immediately return the machinery to the seller, if the efforts of the seller to make it operate properly should then fail, before the purchaser will ordinarily be entitled to claim his contractual right to a rescission the burden is upon him. to show that he. on his part had complied with the obligations thus resting upon him, and which, under the contract, were made prerequisite to the exercise of such right. McCormick Harvesting Machine Co. v. Allison, 116 Ga. 445 (42 S. E. 778); Malsby v. Young, 104 Ga. 205 (30 S. E. 854).

2. In such a suit by a purchaser, the burden of proof being upon him to set out and prove a compliance on his own part with the conditions precedent essential to his right to a rescission, a denial by the defendant of any breach of his own obligations under the contract, a denial of liability under the contract, and a denial of the facts set up by the plaintiff as amounting to a waiver by the defendant equivalent to a performance by the plaintiff of his contractual obligations prerequisite to his right of rescission, sufficiently raise the issue as to the performance by the plaintiff of the prerequisite duties and obligations devolving upon him by the contract.

3. Although reasonable stipulations contained in a contract of purchase and sale which provide conditions precedent to the right of the purchaser to set up his contractual right to a rescission will ordinarily be enforced, still it is within the power of the seller, either expressly or by implication, to waive his rights in this respect; and under the pleadings and the evidence in the instant ease it was a question for the jury to decide whether the conduct and course of dealings between the parties amounted to such a waiver on the defendant’s part. McDaniel v. Mallary Bros. Machinery Co., 6 Ga. App. 848 (66 S. E. 146). It was therefore error’for the judge by his charge to limit the plaintiff’s recovery to a strict compliance on his part with the conditions precedent contained in the contract.

Decided August 16, 1920.

Rehearing Denied September 27, 1920.

Action for breach of warranty; from Whitfield superior court — Judge Tarver. December 13, 1919.

Statement by Jenkins, P. J. A contract for the purchase of certain machinery, dated March 19, 1918, contained an exclusive express warranty and provided in part as follows: “If upon one day’s trial with proper care the property fails to work properly, the purchaser shall immediately give written notice to the seller, stating wherein the property fails, shall allow reasonable time for a competent man to be sent to put it in good order and render necessary, and friendly assistance to operate it. If the property cannot then be made to work well, the purchaser shall immediately return it to said seller and the price paid shall be refunded, which shall constitute a settlement in full of the transaction.” The purchaser, claiming total failure of consideration, sought a rescission under the terms of the contract, a copy of which was attached to the petition, and sued for the full purchase-price paid. The plaintiff alleged, that after properly 'attempting to operate the machinery, it failed to do the work for which it was designed, and that as soon as he ascertained its defective condition he orally notified the defendant, who stated that the trouble was minor and easily remedied, and that he would immediately put the machinery in proper condition; that soon thereafter the defendant did send a mechanic to work on the machinery, and the mechanic claimed that- he put it in proper condition; that “for a short while” thereafter the machinery could be made to operate, but even then not satisfactorily, and that “finally” it got into such condition that it would not operate at all; that the plaintiff then again complained of the machinery to the defendant, who again assured him that the trouble was unimportant and that it could and would be made to operate properly; that the plaintiff, being much in need of the machinery, relied upon these assurances and promises, and awaited the coming of a mechanic from the factory, who endeavored to put the machinery in proper order; that after the second overhauling it operated “for 'a round or two,” but not satisfactorily, and soon failed entirely. The plaintiff alleged and testified that he kept and retained the machinery throughout the year 1918, because of repeated 'promises of the defendant that it would be made to operate properly in time to turn the plaintiff’s crop for 1919, but that ’after repeated unsuccessful efforts on the defendant’s part to put the machinery in proper condition, and after a final rebuilding of it by the defendant, he ascertained that it could not be remedied, and that on or about June 1, 1919, and prior to the bringing of this suit, he tendered back the property and demanded a return of the purchase-money.

4. The terms of a tender govern the effect of its acceptance or rejection. The rejection of a conditional tender does not dispense with a return or tender of the property by the purchaser, such as may have been provided for by the express terms of the contract. Irrespective of any question as to the implied waiver by the seller as to the time of the tender, his evidence in respect to the character of the tender, as finally made by the purchaser prior to the bringing of the suit, raised an issue as to whether or not the purchaser refused to part with the machinery except upon the payment of damages, and this evidence of the defendant as to the nature of the tender authorized the charge of the court upon that subject.

5. The charge of the court in respect to the defendant’s plea of accord and satisfaction was not adjusted to the defendant’s own evidence, and might have been harmful to the plaintiff.

Judgment reversed.

Stephens and Smith, JJ, concur.

The defendant admitted the sale, the contract of sale, 'and the payment of the purchase-money, but denied every other allegation of the petition. As a furthey defense he pleaded as follows: “That after some complaint had been made by th© plaintiff herein with reference to the manner in which said tractor had been working the said plaintiff agreed with this defendant that if he (the defendant) would have certain portions of said tractor rebuilt, that he (the plaintiff) would release defendant from ’any and all liability which plaintiff claimed defendant was under by reason of the contention of said plaintiff that said tractor would not work satisfactorily. Thereupon defendant herein, for the consideration aforesaid, agreed to have said tractor rebuilt in the respects above mentioned, and thereafter, in compliance with his agreement,. did have said tractor rebuilt, according to his promise, and after the work had been performed the same was’ accepted by the said plaintiff, all of which constitutes an accord and satisfaction so far as this defendant is concerned, and he is therefore not liable to the plaintiff in the amount sued for, nor in any other amount.”

The evidence of the plaintiff indicates that he offered to return the machinery about a month or six weeks subsequent to the time that the machinery was finally rebuilt by the defendant, that this tender and the demand for the return of the purchase-money were refused, and that the return o.f the machinery was then waived. The defendant testified that the plaintiff’s tender was not unconditional, but was "coupled” with the demand that the machinery be surrendered on condition that the defendant return the purchase-money and pay the plaintiff’s claim for damages. The trial judge in substance charged the jury that where there is an express warranty as to quality, and by the terms of the agreement the right to a rescission is predicated upon reasonable named conditions, which must be performed by the buyer before such right to rescind can attach, the seller will not be held liable on his agreement to rescind, unless the buyer complies with such prerequisite on his part. He charged them that if the vendor had in effect waived the prescribed notice in writing of the defects, by accepting oral notice thereof, the vendee was still charged with the duty, after waiting a reasonable time for the defects to be remedied, to return the property to the seller, and that if after the repair work had been done the machinery continued to prove unsatisfactory, it then devolved upon the purchaser, under the terms of the contract, to return the same immediately, and that his failure to do so would prevent a recovery unless the vendor refused to accept it. The jury found for the defendant.

The plaintiff, in his motion for a new trial, took various exceptions to the charge of the court, which resolved themselves into two main or general contentions, to the effect (1) that since the defendant did not set up in his plea a failure by the plaintiff to comply with the contract stipulations relative to the -conditions precedent necessary to his right to a rescission, the court erred in charging that a compliance therewith was necessary to his right to a rescission; (3) that the court’s instructions relative to the law governing a rescission were not adjusted to the provisions of the particular contract, since, under this sort of an express contract governing a rescission, despite the contractual obligations in reference to the prompt return of the property, no return or tender, or at least no technical tender of the machinery, was required; it was also complained (3) that the court did not give in charge the principle embodied in § 4-227 of the Civil Code (1910), that “where parties in the course of the execution of a contract depart from its terms and pay or receive money under such departure, before either can recover for the failure to pursue the letter of the agreement, reasonable notice must be given the other of intention to rely on the exact terms of the agreement. Until such notice, the departure is a quasi new agreement;” the contention of the plaintiff being that “under the evidence in this case the plaintiff had indulged the defendant by allowing him to make frequent attempts to repair the machine sold, so that it would comply with the terms of the warranty, and had kept the machine and had not availed himself of his right to rescind the contract of sale, upon the repeated assurances of the defendant that the machine would be made satisfactory; and that the jury should therefore have been instructed to consider this course of dealing and the law applicable thereto in the code section just cited, in determining the question of whether the plaintiff was satisfied to exact compliance witli the provisions of the contract as to its rescission in case the property sold did not successfully perform the work for which it was designed;” (4) that the court erred in charging the jury that an offer to return the machinery, coupled with an attendant claim for damages as a condition precedent to the return, would not constitute a sufficient tender; this exception being based both on the ground that there was no evidence to authorize it, and that the rule stated is not in accordance with law; and finally. (5) the plaintiff in error excepts to the charge of the court relative to the accord and satisfaction pleaded by the defendant, in that the court charged the jury as follows: “I charge you that if the plaintiff and the defendant entered into an agreement whereby the defendant was to have the machine in question rebuilt, and this was accepted as a satisfaction of all matters of difference between the plaintiff and the defendant, and of the defendant’s obligations under the alleged contract of warranty, and if, after entering into this agreement, the defendant complied with Ms part of such agreement by having the machine in question rebuilt, that would operate as a satisfaction of all claims of the plaintiff against the defendant, if those be the facts.” It is alleged that the court in so charging erred because, under the evidence of the defendant himself, there was not merely an 'agreement that the machine was to be rebuilt, but the understanding was that in so doing it was to be put “in first class shape” before he was to be thereby relieved of his obligation under the contract.

R. H. House, Maddox, McCamy & Shumate, for plaintiff.

Napier, Wright & Wood, F. K. McCutchen, C. D. McCutchen, for defendant.

ON MOTION ROE REHEARING.

Jenkins, P. J.

Counsel for the defendant contend that paragraph 3 of the court’s syllabus fails to take into account the fact that the trial judge, by his charge to the jury, in fact authorized them to find that the obligations resting upon the plaintiff as prerequisite to his contractual right to a rescission had been expressly or impliedly waived by the line of conduct and the course of dealings between the parties. In the statement of facts accompanying the original syllabus upon the law of this case it was pointed out that the court charged the jury, that “if the vendor had in effect waived the prescribed notice in writing of the defects by accepting oral notice thereof, the vendee was still charged with the duty, after waiting a reasonable time for the defects to be remedied, to return the property to the seller, and that if after the repair work had been done the machinery continued to prove unsatisfactory, it then devolved upon the purchaser, under the terms of the contract, to immediately return the same, and that his failure to do so would prevent a recovery, unless the vendor refused 'to accept it.” We think the charge of the court in thus limiting the question of waiver, which the jury were authorized to consider, to the one proposition of verbal instead of the required written notice, was too narrow and restricted. Unless the jury, under proper instruction from the court, had found for the defendant under its special plea of accord and satisfaction, then, under the pleadings and evidence, we think it was a question for them to say whether the conduct and course of dealings between the parties was such as to indicate that a waiver of the “immediate return” of the machine, after the several alleged unsuccessful efforts to repair its alleged defects, was in contemplation of the parties; and, if so, whether an 'actual good but belated tender by the plaintiff in accordance with the terms of the contract was ever finally made. In our opinion none of the grounds of the motion authorize a rehearing, and it is therefore denied.

Rehearing denied.

Stephens and Smith, JJ, concur.


text:
    11195.
    Mayor and Council of Gainesville v. Robertson.
   Stephens, J.

1. It nowhere appears that exceptions pendente lite were taken to the allowance of the amendment to the plaintiff’s petition. The assignment of error in the bill of exceptions to such allowance, coming too late, cannot be considered.

2. Where a petition alleges the erection and maintenance of a permanent nuisance whereby the plaintiff’s lands are permanently injured, and seeks to recover past and prospective damages, and there is allowed an amendment alleging that the nuisance is not of a permanent nature but is one that may be abated, which amendment seeks to recover only damages actually sustained within the period prescribed in the statute of limitations before the suit was brought, the petition, after having been amended, is not subject to demurrer upon the ground that the amendment sets out a new and distinct cause of action.

3. An allegation that "the plaintiff’s crops, on account of the alleged nuisance, decreased in value a specified amount per year during the four years prior to the filing of the suit was subject to a special demurrer upon the ground that the value of the crops each year during such period was not set out. Such error, however, is immaterial and is not sufficient to cause a reversal.

4. Even though a nuisance has been continuing from a time prior to the plaintiff’s acquisition of the land and prior to the period of time allowed by the statute within which suit may be brought, the plaintiff may, nevertheless, within the statutory period recover the full damage caused to his land by the continuation of the nuisance, and is not restricted to damage caused solely from an increase in tile noxious character of the nuisance, arising after the plaintiff acquired the property or within the period allowed by. the statute of limitations.

5. “ One . . may testify as to value if he has had an opportunity for forming a correct opinion.” Civil Code (1910), § 5875. Where the rental value of land is claimed to have been impaired by an alleged nuisance, one who is familiar with the land and the conditions alleged to have been caused by the nuisance may testify to the relative rental values of the land under such conditions, and with such conditions removed.

Decided August 16, 1920.

Action for damages; from city court of Hall county — Judge. Wheeler. November 29, 1919.

C. N. Davis, W. B. Sloan, for plaintiff in error.

W. A. Charters, H. H. Perry, contra.

G. The evidence warranted the inference that the maintenance of a continuing nuisance by the defendant was the proximate cause of the plaintiff’s damage. No reversible error appears, and the verdict is supported by the evidence.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    10411.
    Dayhuff v. Brown & Allen.
    Decided September 17, 1920.
    Action for damages; from Fulton superior court — Judge Pendleton. January 31, 1919.
    By plea in bar to Mrs. Dayhuff’s action for damages on account of the death of her husband, the defendant sets up that in a previous action, brought by him and prosecuted by her as his administratrix, damages for total loss of Ms earning capacity and for his pain and suffering were recovered by her on account of the same alleged negligent and wrongful act which in this subsequent suit was alleged to be tbe cause of his death. To this plea the plaintiff demurred on the ground that no valid defense was set up by 'it. The demurrer was overruled. The plaintiff then, by way of reply, 'amended her petition and in substance admitted the 'allegations of fact as to the previous suit and recovery, but contended that they constituted no defense to this action. The defendants demurred, contending that the facts stated constituted an estoppel, the court sustained the demurrer and dismissed the petition, and the case came to the Court of Appeals on exceptions to the rulings stated. The Supreme Court, in answer to a certified question from this court, held that the facts alleged constituted no bar to tbe action, and, on review, declined to overrule its decision in tbe case of Spradlin v. Georgia Railway & Electric Co., 139 Ga. 575.

   Jenkins, P. J.

The court erred in overruling the demurrer to the defendant’s plea in bar, and in thereafter sustaining the demurrer to the plaintiff’s petition. See answers by tbe Supreme Court to certified questions propounded in this case. 150 Ga. 291 (103 S. E. 458).

Judgment reversed.

Stephens and Smith, JJ., concur.

Westmoreland, Anderson & Smith, for plaintiff.

Rosser, Slaton, Phillips & Hopkins, for defendant.


text:
    10726.
    Underwood v. Board of Public Education &c.
    Decided September 17, 1920.
   Stephens, J.

1. The Board of Public Education for the City of Savannah and County of Chatham is a public institution established by an act of the legislature, with powers to establish, under certain limitations, a public-school system, and to appoint, suspend, and remove teachers, and to make by-laws, rules, and regulations for their own government and for the government of the teachers and schools under their superintendence. Ga. L. 1865-6, p. 79. All persons dealing with the board are bound by its rules and regulations, lawfully made and adopted, whether or not they are actually cognizant of such rules and regulations.

2. Where one contracts with the board for employment as a teacher in a particular school under the jurisdiction of the board, for the ensuing scholastic year, the contract is made subject to an existing rule of the board providing that the committee on teachers shall have the right to transfer any teacher employed in the schools from one school to another within the board’s jurisdiction.

3. Where a contract provides that one is employed as a teacher in the “second grade of the Waters Avenue School for the ensuing scholastic year,” an order passed under the authority of the board, transferring such teacher before the termination of the contract to the Abereorn Street School, another school under the jurisdiction of the board, is not a violation of the contract on the part of the board.

4. The right of the board to make such transfer cannot be affected by any contract which the board may have had with a third party, prohibiting the employment of teachers of a certain class in the Abercorn Street School; and no person falling within the class of teachers whose employment is thus prohibited can set up any right under such contract between the board and a third party; especially is this true in a suit by'one alleging a violation of a contract to teach, by reason of a transfer from the school named in the contract to another school, when it does not appear that such contract with a third party, prohibiting such transfer, was in existence at the time of the alleged transfer of the plaintiff from the school in which the plaintiff was employed to the Abereorn Street School.

5. A petition, in a suit against the board by one alleging a breach of a contract of employment as teacher, showing the above facts, was properly dismissed on general demurrer.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.

Action on contract; from city court of Savannah — Judge Freeman. June 7, 1919.

George H. Richter, for plaintiff.

Adams & Adams, for defendant.


text:
    10749.
    Buchannon v. Park, receiver, et al.

    Decided September 17, 1920.
    Motion to set aside judgment; from city court of Blakely — Judge Turnipseed. May 19, 1919.

      C. J. Taylor, for plaintiff.

      Little, Powell, Smith & Goldstein, contra.
   Stephens, J.

1. A motion was made by the plaintiff to set aside a judgment rendered in his favor against the Bank of Blakely, and a rule nisi was issued requiring the Bank of Blakely, W. G. Park, receiver, D. W. James, president, and R. O. Waters, trustee in bankruptcy for D. W. James, to show cause why the judgment should not be set aside.' Service of the rule nisi was perfected on W. G. Park, receiver for the Bank of Blakely, and on W. W. Brunson; and answers thereto were filed only by W. G. Park, receiver, and R. O. Waters, trustee. Upon a hearing, it appearing that the receiver had been finally discharged, the petition was properly dismissed as to him, and it appearing that the original judgment sought to be set aside was against the Bank of Blakely only, the petition was properly dismissed as to R. O. Waters, trustee in bankruptcy for D. W. James, president.

2. Moreover, it not affirmatively appearing from the record that the motion, which was strictly statutory, was presented and filed in term time, it was properly dismissed. Bedgood v. Floyd, 20 Ga. App. 617 (93 S. E. 218).

Judgment affirmed.

Jenkins, P. J,, and Smith, J. concur.


text:
    10770.
    Seaboard Air-Line Railway Company v. Vandiver.
   Stephens, J.

1. Where one seeks to recover damages for personal injuries alleged to have been caused by negligence of the defendant, and sues for past, present, and future pain and suffering, and past, present, 'and future lost earning capacity, and where the judge charges the jury that the plaintiff may recover for future pain and suffering and future loss of earnings in the event the injuries are permanent, and charges them that such damages cannot he recovered in the event the injuries are not permanent, an exception that the judge failed to charge “ any rule for determining damages in the event that they found the plaintiffs injuries not to be of a permanent character ” is without merit.

Decided September 17, 1920.

Action for damages; from Fulton superior court — Judge Bell. June 10, 1919.

Application for certiorari was denied by the Supreme Court.

Brown, Randolph & Parker, for plaintiff in error.

Hill & Adams, contra.

2. There being no fixed rule for estimating the amount of damages for permanent injuries to the person, there was no error upon the part of the trial judge, after charging the jury that the age of the plaintiff, the health he enjoyed, the money he was making,” etc., might be considered in reducing the amount of future earnings to a present cash value, to fail to instruct the jury that they should take into consideration the plaintiff’s expectancy in life or the average yearly amount in which his earnings had been diminished, if diminished at all, by the injuries complained of. Richmond v. Danville R. Co., v. Allison, 86 Ga. 145 (12 S. E. 352, 11 L. R. A. 43).

3. It was not error to fail to instruct the jury that they should reduce to a cash value the gross amount found for all the items of damage proved, including' past pain and suffering and past'earnings, as well as future pain and suffering and future earnings.

4. The defendant cannot complain of a charge which instructs the jury that they should reduce to its present cash value the amount of damages found for future pain and suffering and future earnings.

5. The charge of the court fairly submitted all the issues to the jury and is not subject to any of the objections urged.

6. The evidence warranted the inference that the plaintiff’s injuries were permanent and were caused by the negligence of the defendant. There being evidence that 'the plaintiff had received severe injuries about the face and head as a result of his head having been mashed between two railroad cars, and that as a result of the same his hearing was impaired, his sense of smell and sight affected, his nervous system wrecked, his breathing interfered with, his mouth disfigured and jaw fractured, and that he suffered other functional disturbances and physical injuries, which injuries are permanent and from which he has suffered great pain, it cannot be said that a verdict for $10,000 was excessive and not supported by the evidence.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    Howard v. Georgia Railroad.
   Stephens, J.

1. It is not error for the trial court, after charging the jury that upon proof of the plaintiff’s injury from the running of the cars of the defendant railway company there arose a presumption of negligence against the defendant, to further charge that the burden of proof is upon the plaintiff to make out his case by a preponderance of the evidence. Griswold v. Macon Railway & Light Co., 6 Ga. App. 1 (63 S. E. 1132). See also, in this connection, Freeman v. Collins Park & Belt R. Co., 117 Ga. 78 (43 S. E. 410); Florida Central & Peninsular R. Co. v. Rudulph, 113 Ga. 143 (38 S. E. 328); Western & Atlantic Railroad v. Abbott, 74 Ga. 851; Hyer v. Holmes, 12 Ga. App. 837 (79 S. E, 58).

2. A plaintiff can recover only upon his case as laid in the declaration. Where the injury is alleged as having been caused by the negligent starting of a train, which hit the plaintiff and knocked him down while he was attempting to place a child aboard the train, and the plaintiff’s evidence tended to support this contention, but where the defendant contended that the plaintiff was injured through his own negligence in attempting to place the child aboard the train while it was moving and while the plaintiff was walking or running alongside the moving train, and introduced evidence to sustain this contention, it was not error, as expressing an opinion upon the facts, for the trial judge to chai-ge the jury that “if the plaintiff’s injury was brought about as a result of his efforts to put a child on the moving train while walking or running alongside of the train while moving, then there can be no recovery in this case.” The suit not being predicated upon the negligence of the" defendant in running its train while the plaintiff was walking or running alongside it in attempting to place the child aboard, the charge complained of expressed no opinion upon an issue before the jury.

3. The statement of the trial judge in his charge to the jury, that if “ the train was started in the usual course of things, without negligence on the part of the railroad, in that event he [the plaintiff] cannot recover,” since the jury were instructed that if the train was started “without any negligence on the part of the railroad” there could be no recovery, whs not an expression of opinion on the facts as to what would not constitute negligence on the part of the defendant. This charge was fairly adjusted to an issue in the case, since the jury had a right to infer from the evidence that if the train did stop as contended for by plaintiff, it was started in the usual course of things.

4. An assignment of error in a motion for a new trial, that the court, “ after charging the jury on the measure of damages, refused to charge a request of the plaintiff in writing, as follows: ’Apportionment of damages as embodied in Code sections 2781 and section 4426/ ” is defective as an exception to the refusal of the trial judge to give a • pertinent legal charge in writing in the language requested, as provided in the Civil Code (1910), § 6084, since the request to charge did not contain a pertinent legal charge in appropriate language. This assignment of error excepts only to a refusal to charge in accordance with a request made at a certain time; and since it does not appear, from the assignment of error, that the trial judge failed elsewhere to give in charge the principle of law contended for, this assignment of error cannot be construed as an exception generally to a refusal on the part of the trial judge to give in charge the law relative to apportionment of damages. If treated as a request to charge these two sections of the code, it was properly refused, since to charge these two sections of the code in immediate connection with each other', without proper explanation, is error. Western & Atlantic R. Co. v. Rogers, 104 Ga. 224 (30 S. E. 804).

Decided September 17, 1920.

Action for damages; from Biehmond superior court — Judge Henry C. Hammond. July 29, 1919.

Henry C. Roney, for plaintiff. Cumming & Harper, for defendant.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    10891.
    Moore v. Tippin.
    Decided September 17, 1920.
    Foreclosure of mortgage; from city court of Floyd county — Judge Nunnally. July 25, 1919.

      Maddox & Doyal, for plaintiff in error.

      Harris & Harris, C. H. Porter, contra.
   Stephens, J.

1. The clerk of the superior court of Floyd county is ex-officio clerk of the city court of Floyd county. Ga. L. 1882-3, p. 535, section 5.

2. Whether or not there is any provision of law for a deputy clerk of the city court of Floyd county or for the deputy clerk of the superior court of Floyd county to act as ex-officio deputy clerk of the city court of Floyd county, an execution issuing out of the city court of Floyd county which is not signed or executed hy the clerk of the superior court of Floyd county who is ex-officio clerk of the city court of Floyd county, but is executed by a deputy clerk of the superior court of Floyd county who signs such execution as “S. L. Graham, by Tom Clemmons, Deputy Clerk City Court Floyd County, Georgia, Clerk,” is not a good and valid execution, and is not legally issued, since it nowhere appears that such deputy had authority to sign the name of the clerk to the execution or that the name of the clerk was signed thereto under the clerk’s immediate direction and control. MacKenzie v. Jackson, 82 Ga. 80 (8 S. E. 77); Biggers v. Winkles, 124 Ga. 990 (53 S. E. 397).

3. The levy should have been dismissed.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


text:
      10901.

    Talmage, by next friend, v. Tift.
    Decided September 17, 1920.
    Rehearing denied September 27, 1920.
    Action for damages; from Tift superior court—'Judge Bye. August 9, 1919.
   Stephens, J.

1. Where laborers employed by a contractor are subject to the control of the employer and may be discharged by the latter, the contractor is, as respects the employment and control of the laborers, not an independent contractor. 14 R. C. L. 68.

2. In a suit to recover damages for injuries alleged to have been sustained by the plaintiff while employed as a laborer to work about a mill, where it appears from the evidence that the defendant was the owner of the mill, which was located upon his premises and, under a contract made by the defendant with another person, was operated by the latter, whose duty it was to furnish the necessary labor and saw lumber into shingles at a stipulated price to be paid by the defendant, the defendant supplying the lumber and the machinery and keeping the machinery in repair, which contract was subject to rescission and cancellation at any time, and where the defendant testified that to his knowledge the person operating the mill did not employ any children about the mill, and that he (the defendant) would not have allowed it, that the plaintiff’s injuries were treated by a physician employed by the defendant to look after and treat injured employees at the mill, and that the bill for the plaintiff’s treatment was paid by the defendant, the inference is authorized that the defendant had the right to control and discharge laborers employed about the mill, and that the contract between the defendant and the person operating the mill was not made by the defendant in good faith for the purpose of establishing an independent contract with the person operating the mill, but was made by the defendant for the purpose of avoiding responsibility for injuries to the laborers employed about the mill, and that the person operating the mill was not an independent contractor, but that the relation of master and servant existed between the defendant and the plaintiff. See, in this connection, Civil Code (1910), § 4415.

3. It appears, from the evidence, that the defendant visited the mill while the plaintiff was at work, thus authorizing the inference that the defendant knew of plaintiff’s presence and employment in the mill, and that the defendant had the right to prevent the plaintiff’s employment, thus authorizing the inference that his failure to do so amounted to permission to plaintiff to work in the mill, and that the plaintiff was under 12 years of age and was working about the mill in violation of the child-labor law, which was negligence per se on the part of the person responsible for the plaintiff’s employment or presence in the mill.

4. The evidence authorized the inference that the defendant’s negligence was the proximate cause of the plaintiff’s injury, and it was therefore error to grant a nonsuit.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.

Application for certiorari was denied by the Supreme Court.

John Henry Poole, for plaintiff.

Fulwood & Hargrett, for defendant.


text:
    10907.
    Jenkins v. Swicord.
    Decided September 17, 1920.
    Rehearing denied September 27, 1920.
    Motion to set aside judgment; from city court of Cairo — Judge Rigsby. September 2, 1919. •

      Bell & Weathers, for plaintiff.

      S. P. Cain, for defendant.
   Stephens, J.

1. While, under the Civil Code (1910), § 6047, a levy upon personal property sufficient to pay the debt, unaccounted for, raises a presumption of a satisfaction of the execution, no such presumption arises where the property is afterwards sold for a sum insufficient to satisfy the execution.

2. Where the defendant in a trover suit executes to the plaintiff a bond conditioned to produce the property to answer any judgment that may be rendered against the defendant, and to pay the eventual condemnation money, and a judgment is thereafter rendered in the proceedings against the defendant and the surety for a certain sum, with a special lien on the property, a levy on the property under the •judgment, where it is afterwards sold for a sum insufficient to pay the debt and satisfy the judgment, will not amount to a satisfaction of the judgment or operate to discharge the surety, where it does not appear that the property when levied on was sufficient to satisfy the judgment. This is true where the sale of the property was postponed by the defendant’s filing an affidavit of illegality to the levy and replevying the property by giving a bond with a different surety, and the defendant; after replevying the property, used it and caused it to depreciate in value and to become incapable of satisfying the judgment.

3. .The surety in the original bond given for the payment of the eventual condemnation money in the trover suit having made a motion to set aside the judgment as to him, upon the ground that a levy on the property by the sheriff amounted to a discharge of the surety, and the evidence having failed to disclose the value of the property when levied upon, the verdict and judgment discharging the surety were unsupported by evidence and contrary to law. The court erred in overruling the motion for a new trial.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


text:
    10916.
    Avery & Company v. Sorrell.
    Decided September 17, 1920.
    Trover; from Colquitt superior court—; Judge Thomas. August 18, 1919.

      Napier, Wright & Wood, Dowling & Askew, for plaintiffs.

      W. F. Way, for defendant.
   Stephens, J.

1. Where the record shows the rendition of a verdict in the trial court and also a motion for a new trial excepting thereto, a bill of exceptions, excepting to the overruling of the motion for a new trial, is not subject to dismissal as being prematurely brought to this court, upon the ground that, since there nowhere appears any record of a judgment having been entered upon the verdict, the record fails to show a final judgment.

2. This being a suit in trover wherein the evidence authorized a recovery for the plaintiffs, and the plaintiffs having elected to take a money verdict, but the jury having rendered a verdict awarding the property to them, the verdict was contrary to law, and, on their motion for a new trial, should have been set aside. Avery v. Sorrell, 145 Ga. 329 (89 S. E. 194).

3. There being no evidence that the attorney for the plaintiffs accepted from the defendant in full settlement of the plaintiff’s claim the property which was the subject-matter of the suit, it was error upon the part of the trial judge to instruct the jury that a tender of the property by the defendant to the plaintiffs’ attorney in full settlement of the plaintiffs’ claim and its acceptance by the plaintiffs’ attorney could defeat the plaintiffs’ right to a recovery of the value of the property.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


text:
    10994.
    Tilford v. Franklin Fire Insurance Company of Philadelphia, Pa.
   Stephens, J.

1. Where a defendant has failed to appear and answer a petition within the time allowed by law and a judgment by default has been rendered against him, the judgment will, on proper motion filed during the term, be arrested when it does not appear that process was issued against the defendant named in the petition, or where it does not appear that the defendant was served with the petition and process.

2. Process against a defendant other than the one named in the petition is not good.

(a) Wheye a petition is filed against “The Franklin Fire Insurance Company of Philadelphia, Pa.,” as the defendant, a process attached thereto against “Franklin Insurance Co.,” being on its face against another and different defendant, is not good. Neal-Millard Co. v. Owens, 115 Ga. 959 (42 S. E. 266).

Decided September 17, 1920.

Motion to arrest judgment; from Walker superior court— Judge Wright. October 2, 1919.

Rosser & Shaw, for plaintiff.

Smith, Hammond & Smith, Shattuck & Shattuck, for defendant.

3. Where one defendant was named in the petition and another defendant was named in the process, an entry of service, to the effect that service had been perfected upon “the defendant’s agent,” naming him, was ambiguous and showed no service upon the defendant named in the petition; and where the defendant named in the petition failed to appear and answer within the time allowed by law, a judgment by default, rendered against him upon such petition, process, and entry of service, was properly arrested and set aside.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    11025.
    Shaw, sheriff, v. Walker, for use, etc.
   Stephens, J.

1. Entries upon an execution cannot serve to keep the judgment in life unless the entries are properly recorded. Where an execution was issued from the superior court in the year 1903, . and on the same day recorded on the execution docket of that court, and the entries thereon were not recorded upon the execution docket of that court, as required prior to the act of 1910, the execution became dormant after a period of seven years from the time of record. Columbus Fertilizer Co. v. Hanks, 119 Ga. 950 (47 S. E. 222) ; Civil Code of 1895, § 3761.

2. A sale by a sheriff under a dormant fi. fa. is a nullity. The purchaser acquires no title to the property sold, and may recover the purchase-money which he has paid to the sheriff under such illegal sale. Davis v. Comer, 108 Ga. 117 (33 S. E. 852, 75 Am. St. Rep. 33).

3. Where the- purchaser at the sheriff’s sale has been indemnified, by the payment to him of an amount equal to the purchase-money by one who purchased the property from the defendant in fi. fa. prior to the levy and sale and recovered the property from the purchaser in a trover suit, the purchaser may nevertheless maintain a suit for the use of such person, against the sheriff, to recover the amount paid by the purchaser to the sheriff under such illegal sale.

4. It not being plainly apparent that the case was brought to this court for delay only, the motion for damages against the plaintiff in error is denied,

Decided September 17, 1920:

Money rule; from Tift superior court — Judge Eve. October 4, 1919.

Application for certiorari was denied by the Supreme Court.

R. A. Hendricks, for plaintiff in error.

Fulwood & Hargrett, contra.

5. A verdict for the plaintiff was properly directed.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    11035.
    National Surety Co. v. Walker County, for use, etc.
    Decided September 17, 1920.
    Complaint; from Walker superior court — Judge Wrigbt. September 3, 1919.

      Shattuck & Shattuck, for plaintiff in error.

      Rosser & Shaw, contra.
   Stephens, J.

1. The motion to dismiss the bill of exceptions upon failure to make proper parties is met by the voluntary appearance of the Little-Cleckler Construction Company and its consent- to be made a party plaintiff to the bill of exceptions. It is therefore ordered that the Little-Cleckler Construction Company be made a party plaintiff to the bill of exceptions.

2. A bond executed by a building contractor, conditioned for the prompt payment by him of all indebtedness to persons supplying labor or material in the execution of certain work, is an obligation to pay any indebtedness of the contractor so arising, and an extension by the contractor of the time of payment of any such indebtedness will not necessarily operate to discharge the surety upon the bond.

3. In a suit against the contractor and the surety on the bond by a plaintiff supplying material used for the construction of the work referred to in the bond, where the defendant surety set up as a defense an extension by the contractor of the time of payment of the indebtedness sued on, evidenced by the execution of a promissory note by the contractor, accepted by the plaintiff as payee, covering such indebtedness, the note falling due within the period provided by the statute within which suit on the original indebtedness may be brought, and within the period within which laborers’ and materialmen’s liens may be asserted, such defense was properly stricken on demurrer.

4. The demurrer to the plea was properly sustained upon all tlie grounds.

5. The evidence demanded the verdict for the plaintiff, and the court did not err in so directing.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    11052.
    Payne v. Shirley et al.

    Decided September 17, 1920.
    Appeal; from Hart superior court — Judge Hodges. September 24, 1919.

      T. Lumpkin Adderholt, Hammond Johnson, for plaintiff in error.

      James H. & Emmett Skelton, contra.
   Stephens, J.

1. Where an application for the appointment of an administrator is filed, and a caveat thereto is filed by one who had been appointed guardian of the deceased under a commission of lunacy issued under the Civil Code (1910), § 3092, the ground of the caveat being that the caveator, as guardian, was by operation of law the administrator of the estate, such ground of the caveat cannot be sustained where it appears that the guardianship appointment was void for want of jurisdiction on the part of the ordinary to entertain the application.

2. The ordinary has no authority to issue a commission of lunacy or for the appointment of a guardian under the Civil Code (1910), § 3092, where it appears that the alleged lunatic or ward has three adult relatives in the State, until after the expiration of ten days from the time such relatives have received notice of the application. The commission in this case having been issued on the same day on which the application was filed, the appointment of the guardian was void. Yeomans v. Williams, 117 Ga. 800 (45 S. E. 73); Allen v. Barnwell, 120 Ga. 537 (48 S. E. 76).

3. The invalidity of the appointment of the guardian appearing upon the face of the record, the judgment of appointment may be attacked collaterally. Civil Code (1910), §§ 5966, 5968.

4. The judgment refusing to sustain the caveat was proper.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    11078.
    Ficken v. Bank of Cerro Gordo.
   Stephens, J.

1. “ Savings- institutions which pay interest to depositors, and whose deposits are not subject to check,” are “ authorized to lend money to persons not members thereof, nor shareholders therein at eight per cent, or less, and to aggregate the principal and interest at the date of the loan for the entire period of the loan, and to divide the sum of the principal and the interest for the entire period of the loan into monthly or other installments,” and to take security therefor, etc., as provided in the Civil Code (1910), §§ 2881, 2878.

2. The notes sued on in- the instant case, having been given for money borrowed from such a savings institution, and being in payment of the principal and interest thereon calculated at eight per cent., in accordance with the plan permitted in the code sections referred to, and payable in monthly installments, are not subject to the defense that they are infected with usury.

Decided September 17, 1920.

Complaint; from city court of WayerosS'—-Judge Crawley. March 20, 1919.

Application for certiorari was denied by the Supreme Court.

A. B. Spence, W. W. Bennett, for plaintiff in error.

J. L. Sweat, contra.

3. The assignment of error in the bill of exceptions, that the verdict directed is contrary to law because the suit was, as to some of the notes, prematurely brought, cannot be considered, since no defense upon this ground was made in the lower court, either by demurrer or plea.

4. The evidence establishing the character of the institution from which the money was borrowed was properly admitted. Under all the evidence introduced, a verdict for the plaintiff for the sum sued for. was demanded and was properly directed.

5. Damages for delay are denied.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    11159.
    Stewart v. Durham.
    Decided September 17, 1920.
    Foreclosure of lien;'from Hall superior court — Judge J. B. Jones. November 1, 1919.

      E. D. Kenyon, for plaintiff in error.

      W. B. Sloan, contra.
   Stephens, J.

1. Before a laborer’s lien can be foreclosed it must be shown that the laborer has fully completed the contract. Wall v. Rutherford, 60 Ga. 440; Dexter v. Glover, 62 Ga. 312.

2. While the contract will be treated as fully performed and completed by the laborer when the completion thereof has been prevented by the other party thereto (Ballard v. Daniel, 18 Ga. App. 449, 89 S. E. 603, and cases there cited), yet where a cropper, before completing his contract, demands that the part of the crop which has been gathered be sold, and the demand is refused by the landlord, and it does not appear that the landlord in any way prevented the cropper from gathering the remainder of the crojp and completing his contract, it cannot be said that such action on the part of the landlord amounts to such a prevention on his part as will permit the foreclosure of a laborer’s lien before the contract has been fully performed.

3. The evidence demanded a verdict for the defendant and the trial judge erred in overruling the motion for new trial.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.