author: Luke, J.,

text:
    9910.
    Central or Georgia Railway Co. v. Howell.
    Decided January 15, 1919.
    Action for damages; from Bibb superior court—Judge Mathews, June 7, 1918.

      R. C. Jordan, for plaintiff in error.

      L. D. Moore, J. A. Monsees, contra.
   Luke, J.,

1. The following facts made out a case peculiarly for determination by the jury, and their verdict is conclusive so far as the general grounds of the motion for a new trial are concerned: Plaintiff was, on the day of the injury, driving an automobile on the highway in the city of Macon and in the direction of a public crossing intersected by several lines of track, where the defendant company had stationed a flagman to ¡warn travelers of approaching trains, etc., and, just as the plaintiff drove up to and upon said crossing, the said flagman ordered him to stop, which he did as quickly as possible, causing his machine to come to a standstill upon and across one of the defendant’s lines of track. After so stopping his machine in obedience to said order, the flagman ordered him to go back, but before he was able to move his car he was again ordered to go forward, and in this state of confusion, upon observing a train in close proximity and running upon the track on which his automobile was standing, he speedily removed himself from the car, in order to save his life, but the train continued on its way and' struck his car and completely destroyed it.

2. None of the special grounds of the motion for a new trial contain reversible error, and the trial judge did not err in overruling the motion.

Judgment affirmed.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    9916.
    Mizell Live Stock Company v. Sutton.
    Decided January 15, 1919.
    Complaint; from city court of Nashville—Judge Christian. June 8, 1918.

      H. L. Jackson, W. D. Buie, for plaintiff.

      H. L. Quincey, J. D. Lovett, for defendant.
   Luke, J.

1. Where a purchaser of a promissory note has actual notice that it was given for the purchase of stock in an incorporated company, ' sold by an agent, traveling salesman, or promoter, such notice is just as effective to put the purchaser of the note on notice that he.is taking it subject to the equities existing between the original parties thereto as if the consideration of the note had been expressed in the face of the note. See Acts 1912, p. 153; Park’s Code § 4294 (b) ; Heard v. Nat. Bank, 143 Ga. 48 (84 S. E. 129).

2. The charge of the court, when read as a whole, is not subject to the criticisms urged; the evidence authorized the verdict, which has the approval of the trial judge. For none of the reasons assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    9921.
    Western and Atlantic Railroad Company v. Gregg.
    Decided January 15, 1919.
    Action for damages; from Whitfield superior court—Judge Tarver. June 6, 1918.

      Tye, Peeples & Tye, Maddox, McCamy & Shumate, for plaintiff in error.

      W. C. Martin, W. E. Mann, W. Gordon Mann, contra.
   Luke, J.

1. When read as a whole, the charge of the court complained of presented correctly the law of the case. While the evidence for the defendant was strongly opposed to the testimony of the plaintiff, yet the plaintiff swore to a state of facts which, if believed, proved her case as laid. The jury were authorized to believe her in preference to the greater number of witnesses. Since the trial judge, upon whom this court must, by law, depend so to do, has, in the exercise of his discretion, approved the verdict, which has some evidence to support it, and there being no error of law in the trial of the case, the judgment overruling the motion for a new trial is

Affirmed.

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


text:
    9925.
    Simpson et al v. Clary et al.

    Decided January 15, 1919.
    Rehearing denied January 28, 1919.
    Complaint; from Wilkes superior court—Judge Walker. June Í, 1918.

      W. A. Slaton, Colley & Colley, for plaintiffs iii error.

      C. E. Sutton, S. H. Sibley, C. D. Colley, contra.
   Luke, J.

1. The court did not err, when the charge is considered as a whole, in not giving the charge requested in the exact language of the requests. The charge of the court fully and fairly presented the issues, and is not subject to the criticisms urged by the plaintiffs in error.

2. The evidence, though conflicting, was sufficient to support the verdict, which has the approval of the trial judge. Eor none of the reasons assigned do we find error requiring a reversal of the judgment overruling the motion for a new trial.

Judgment affirmed.

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


text:
    9929.
    Calhoun v. Dunson & Gay.
    Decided January 15, 1919.
    Certiorari; from Fulton superior court—Judge Pendleton. May 38, 1918.

      Hewlett & Dennis, for plaintiff in error.

      H. A. Etheridge, contra.
   Luke, J.

1. Ordinarily a broker employed to obtain a loan for a borrower does not fulfil his engagement by simply finding a person who is ready, able, and willing to make the loan on the terms on which the borrower has contracted to take it, but he must either tender the money or produce the person willing to make the loan on the terms agreed, unless the borrower, at the time the broker advises him that he has such a person ready, able, and willing to make the loan refuses to accept the loan.

(a) Such authority to the broker may be revoked by the borrower at any time prior to the finding of the lender who is willing, able, and ready to make the loan upon the terms of the agreement of the borrower. Such revocation, however, cannot be made after noticé to the borrower that he has procured the lender ready, able, and willing to make the loan upon the security and terms agreed.

2. The evidence upon the trial of this case was in some particulars com flicting, but there was ample evidence to support the verdict, which has the approval of the trial court. There is no error of law complained of which, in the light of the record as a whole, requires a reversal of the judgment overruling the certiorari.

Judgment affirmed.

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


text:
    9932.
    LIVINGSTON v. RANEY et al.

    Decided January 15, 1919.
    The evidence shows that the contract in question, entered into by James M. Raney in behalf of Raney Brothers as a partnership, was a gambling contract, for the future delivery of cotton; and that Raney Brothers were not a partnership for the purpose of entering into such contracts. The court did not err in directing a verdict in favor of the plea of nul tiel partnership, or in directing a verdict.for the defendant James M. Raney.
    Action on contract; from city court of Atlanta—Judge Reid. Hay 6, 1918.

      J. T. Hill, F. A. Hooper, for plaintiff.

      Eldridge Cutts, Little, Powell, Smith & Goldstein, for defendants.
   Luke, J.

Livingston sued Raney Brothers, .alleging that the firm was composed of James M. Raney, Benjamin Raney, and Daniel Raney, who were at the time engaged in the general mercantile business; that James M. Raney, in behalf of Raney Brothers, entered into a contract on May 18, 1909, whereby it was agreed that they should deliver, before October 30, 1909, one hundred bales of cotton, at a price of ten and one quarter cents per pound. The contract recites that the said number of bales represents the crop, or a part of the crop, of Raney Brothers for the year 1909. Raney Brothers filed a plea of nul tiel partnership, andj subject to that plea, pleaded also that the contract was a gambling contract. The evidence clearly shows that Raney Brothers, as a partnership for the purpose of entering into such contracts, never existed, and the evidence further shows clearly that there had never been any partnership organized for the operation of farms, or the selling of cotton from farms; and the evidence further clearly shows that they did not as partners own farms or conduct farming operations. The evidence further shows that the agent of Livingston, the person who in behalf of Livingston signed the contract, knew, at the time that he executed the contract, that James M. Raney was undertaking to sell cotton that he was buying from farmers, and executed the contract- sued on, for the future delivery of cotton. The evidence further shows that so far as Livingston and James M. Raney were concerned, it was a gambling contract, for the future delivery of cotton, especially in-view of the fact that all of the evidence shows that Raney Brothers owned no farms jointly. gnd were raising no cotton. The court did not err in directing a verdict in favor of the defendant’s plea of nul tiel partnership, and did not err in directing a verdict for the defendant James M. Raney. See Russell v. Camp, 9 Ga. App. 691 (72 S. E. 60).

Judgment affirmed.

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


text:
    9965.
    Miller v. Walker.
    Decided January 15, 1919.
    Certiorari; from Jones superior court—Judge Park. June 1, 1918. .
    Miller signed a contract for the purchase of certain land fol $537, for which sum (except a cash payment of $3) it was provided therein that he should give certain promissory notes upon the tender and delivery of a deed conveying the property to him udthin ninety days. The deed was tendered and he was requested to sign the notes, within the time stated, but he refused to accept the deed or sign the nqtes, and suit for the amount stated in the written contract was brought against him in the city court of Gray by Walker, the other party'to the contract. The foregoing "facts appear from the allegations and admissions in the pleadings. The nature of the defense set up in the defendant’s plea appears from his testimony, which was the only evidence introduced on the trial. He testified: “I was at my home . .and was busy, and a man who said he was named Mr. E. C. Potts came up and said he was working for a Mr. Walker in Macon, and they wanted to sell me some lots. I told him I was very busy and didn’t need any lots, , . that I was already involved and owed more than I could pay.. . . . He said it was a big thing, that some fine streets and parks would be there,-—made beautiful pictures in talking. . . I told him I had a house and lot at Haddock, that if he would sell this for $1,000 I would give them a commission of $50 and would buy the lots, or some of them. . . We got in his automobile and went to Haddock, and he looked at the property and said he could sell it; then we went on towards Macon-, out to see the lots. . . . I am ignorant, am not educated at all, can just read and write a little bit. They told me I could sign up, and I still told them I could not buy any lots, and would wait until they sold my house and lot, and then I would, take them and pay for them. They did not read over the paper to me, nor did I ask them to read it, because they talked so fair; so it seemed to me then. They told me the paper was nothing but an option to buy if I wished, and did not bind me to anything if I did not want to buy, but if I would put up $3 and sign the option paper, then at the end of ninety days, if I decided to buy, I could, and that if I then decided I did not want the lots, I would only lose $3. I relied absolutely on what they told me, and the reason I signed the paper was because I thought I was signing an agreement whereby I could buy or not if I wanted to, but I never did think I was signing a paper like this one, and never knew it until about three months afterwards when they came out to my house and said they had' a deed to the lots for me. . I never would have signed any such paper except they told me a different thing, that it wasn’t a thing in the world but an- option, at first. I did not read the paper when they told me to sign, for I thought they were telling me the truth about what it was. . They never sold my Haddock property, and I never heard that they tried to sell it. ! . I am ignorant and have never been to school, and can’t tell much about reading and writing.” The court directed a verdict against the defendant; certiorari was sued out; the certiorari was overruled, and he excepted.
   Luke, J.

1. Where suit was brought for a sum alleged to be due upon a plain and unambiguous contract in writing, and the only evidence submitted by the defendant was to the effect that he was ignorant and could, “just read-and write a little bit,” and did not read' the'contract’, that the nature of the written contract was misrepresented to him and he thought that he was signing an entirely different contract from the one he did sign, hut nothing was done to prevent him from reading it or having it read to him, it was not error for the trial judge to direct a verdict against him for the amount appearing to he due under the contract. Sloan v. Farmers & Merchants Bank, 20 Ga. App. 123 (92 S. E. 892), and eases cited; Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (2). 516 (94 S. E. 892).

2. The judge of the superior court did not err in overruling the certiorari. The question raised by the bill of exceptions in this case having been so often decided, both by the Supreme Court and this court, adversely to the position of the plaintiff in error, the statutory damages (Civil Code of 1910, § 6213) are awarded the defendant in error.

Judgment affirmed, with damages.

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

R. N. Hardeman, for plaintiff in error, cited:

Ga. R. 69/362: 78/739; 91/821, 826; 96/120; 102/422 .(3), 424; 104/312; 112/319; 133/56, 58; 136/584. Ga. App. 9/349; 10/362.

J. R. L. Smith,, B. J. Fowler, contra, cited:

Ga. R. 60/384; 94/400; 109/439; 112/319; 117/851; 119/8; 122/802; 127/735. Ga. App. R. 5/392; 20/123, 766; 21/512, 580, 634. On motion that damages be awarded for bringing up case: Ga. R. 51/554, 555; 109/196, 550, 553; 110/779; 68/65. Ga. App. R. 4/476; 8/409; 19/811; 20/97, 205, 529 (1); Civil Code (1910), § 6213.


text:
    9987.
    Lane v. Bank of Thomasville.
    Decided January 15, 1919.
    Complaint; from Grady superior court—Judge Harrell. June 29; 1918.

      R. R. Terrell, for plaintiff in error.

      Titus, Dekle & Hopkins, contra.
   Luke, J.

1. Where, in a suit upon a promissory note, the debtor shows that he paid a part of it to a supposed agent of the holder of the note, but fails to show that the supposed agent produced the note at the time of payment, or that the money so collected ever reached the owner of the note, or that the alleged' agent had specific authority to collect trie note, no valid defense of partial payment is shown. Dibble v. Law, 141 Ga. 364 (80 S. E. 999), and cases there cited; Civil Code (1910), § 3578.

2. For none of the reasons assigned did the court err in directing a verdict for the plaintiff.

Judgment affirmed.

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


text:
    9998.
    Ceylona Company v. Selden Truck Sales Company.
    Decided January 15, 1919.
   Luke, J.

1. Where an automobile is sold with warranty of quality, and the automobile delivered' by the seller does not correspond with the warranty, the correct measure of damages is the difference between the contract price and the actual value of the' automobile when and where delivered. Oxford Knitting Mills v. Wooldridge, 6 Ga. App. 301 (64 S. E. 1008). . ,

2. Under the pleadings in this case the court did not err in sustaining objection to the admission of garage bills and receipts for team hire, claimed to be money expended while the automobile was out of repair.

3. No error of law appears; and the verdict, which has the approval of the trial judge, is fully supported by the evidence.

Judgment affirmed.

Wade, C. J., and Jenlans, J., concur.

Complaint; from city court of Atlanta—Judge Reid. June 14, 1918.

William A. Fuller, for plaintiff in error.

Anderson, Rountree & Crenshaw, contra:


author: Broyles, P. J.

text:
    9625.
    Parks v. The State.
    Decided January 15, 1919.
    Indictment for possession of liquor; from Forsyth superior court—Judge Morris. March 4, 1918.

      Everett C. Brannon, H. B. Moss, for plaintiff in error.

      John T. Dorsey, solicitor-general, Herbert Clay, William Butt, contra.
   Broyles, P. J.

1. In a case where it appears that the transcript of the evidence sent to this court is not a correct copy of the brief of evidence approved by the trial judge and of file in the office of the clerk of the court below, this court will order the clerk to send up a correct copy of such record. Smith v. State, 118 Ga. 83. Where, however, it appears that the brief of evidence sent to this court in the transcript of the record is a correct copy of the brief of evidence approved by the trial judge, and where ’ it further appears that he has signed the bill of exceptions, it will be held that he has exhausted his powers with respect to the testimony, and can not subsequently alter the brief of evidence. Jones v. State, 64 Ga. 698; Minhinnett v. State, 106 Ga. 141 (32 S. E. 19) ; Milton v. Savannah, 121 Ga. 89 (48 S. E. 684).

2. Under the foregoing ruling and the facts in this case, the trial judge was without authority to correct the brief of evidence, and this court will not order that the corrected brief of evidence be sent up.

3. It appearing from the brief of evidence in the record transmitted to this court that if any offense was committed by the accused, it was subsequent to the finding of the presentment upon which he was tried, the record shows that his conviction was contrary to law (Minhinnett v. State, supra),-and the court erred in overruling his motion for a new trial.

Judgment reversed.

Bloodworth and Stephens, JJ., concur.


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

text:
    9660.
    JONES v. RAUSCHENBERG.
    It was not a good plea to an action on promissory notes that the plaintiff (the payee) owed the defendant (the maker) a stated sum, pleaded as a set-off, by reason of the following facts: The notes were for a part of the purchase-price of a certain lot of land bought by the defendant from the plaintiff, with a house thereon which had not been completed when the notes were given; and the plaintiff then agreed to complete the house and to pay to the defendant an amount equal to the interest on the notes and on a certain mortgage against the property until the completion ot the house; this agreement being made in consideration of the defendant's closing up the trade and signing the notes then; the house was not completed until a named date, and the defendant sought to set off the amount of the interest thus agreed to be paid.
    Decided January 15, 1919.
    Certiorari; from Fulton superior court—Judge Bell. March 23, 1918.
    Suit was brought in the municipal court of Atlanta on two promissory notes of Jones, the defendant, to Bauschenberg, the plaintiff, for $30 each, dated December 1, 1915, which recited that they were of a series of notes aggregating $2,000, “as evidenced by land mortgage of even date, owing by” Jones to Bauschenberg, The defendant filed at the appearance term an answer admitting the execution of the notes, but denying indebtedness, and setting up that the notes were for a part of the purchase-price of a house and lot, that at the time they were given the house was not completed, and that the plaintiff then agreed to complete the house satisfactorily to him, and to pay all interest accruing on the purchase-money notes and on a $2,500 first mortgage against the property until the completion of the house, if he would sign the notes; that the house was not completed until February 15, 1916j and the interest accruing from the time the notes were given until the completion of the house was $69.50, for which he was entitled to' judgment against the plaintiff. The answer was amended as follows: “Defendant says, for further plea, that the plaintiff is indebted to this defendant in the sum of $69.50, with interest thereon at 7% per annum from February 15, 1916, by reason of the following facts: Defendant bought a house and lot from the plaintiff, the same being located at 227 Greenwood Avenue, and being the same house and lot for the purchase-money of which the notes sued on were given. When the trade was made and the papers executed the house was not completed. The plaintiff agreed to complete the house and agreed that he would pay the defendant an amount equal to the interest on the purchase-money note from December 1, 1915, and the interest on the first loan of $2,500 which was against the property, until the house was completed. This agreement was made in consideration of defendant closing up the trade and signing the notes then. The house was not completed up to February 15, 1916. Defendant therefore pleads that the plaintiff became indebted to him in the sum of $39.16, being the amount of interest on the $3,000 of notes from December 1, 1915, to February 15, 1916, and $40.34, being the interest on the $3,500 loan from November 33, 1915, to February 15, 1916, making $69.50. And defendant asks that the amount be set off against the plaintiff’s claim and defendant be given judgment for the balance due him.” The amendment and the answer were duly verified. The court, on motion of the plaintiff, struck, the answer as amended, and rendered judgment against the defendant for the amount sued for. This was complained of in the defendant’s petition for certiorari. The judge of the superior court overruled the certiorari, and the bill of exceptions assigns error thereon.

      Moore & Branch, for plaintiff in error, cited:
    Civil Code (1910), §§ 5635, 5649, 4353, 5791; Albany Phosphate Co. v. Hugger, 4 Ga. App. 771 (1); Finney v. Cadwallader, 55 Ga. 75; Cherry v. Sutton 30 Ga. 875.

      Hendrix & Silverman, contra, cited:

      Mansfield v. Barber, 59 Ga. 853; Dyer v. Walton, 79 Ga. 468; Stafford v. Staunton, 88 Ga. 398; Johnson v. Cobb, 100 Ga. 139; Lunsford v. Malsby, 101 Ga. 39 (3), 41; Bowen v. Waxelbaum, 2 Ga. App. 522; Crooker v. Hamilton, 3 Ga. App. 190 (3); Henderson v. Thompson, 53 Ga. 149; Chamberlain v. Beck, 6.8 Ga. 346 (5); Connor v. Lasseter, 98 Ga. 708 (3).
   Broyles, P. J.

It was not error to strike the defendant’s answer as amended, and the judge of the superior court did not -err in overruling the certiorari.

Judgment affirmed.

Bloodworth, J., concurs.

Stephens, J.,

dissenting.

A sues B upon several promissory notes given by B to A in part payment of the purchase-money for a lot of land with a house thereon purchased by B from A. B admits the execution and validity of the notes, but by way pf set-off says, that at the time of the execution of the notes A agreed that in consideration of their execution he would complete the building of the house, and further agreed that until the house was so completed he would pay to B an amount equal to the interest on the notes from the date of their execution, and also in addition thereto the interest from that date on a mortgage due by A which he had placed upon the premises, and which B in the contract of sale had assumed. Does the agreement alleged in the set-off constitute a valid contract? Also, does it, being in parol, vary the terms of the written contract as contained in the notes?

This agreement, to my mind, sets up a valid contract, and does not violate the terms of the written contract. The execution of the notes was a detriment to B, and constituted a good consideration to support A’s promise to complete the house. A’s promise, with an added provision for a liquidation of damages in case the promise to complete the house was broken, does not .at all affect the terms of the note. The precise method of liquidation is entirely reasonable and fair. The fact that a part- of the damages is to be measured by the amount of interest accrued, and perhaps paid, on the note from B to A is merely incidental and subsidiary to the main agreement to complete the house or pay damages for failure to do so. Besides, that part of A’s promise to measure part of the damages by the interest on a mortgage of A’s which was already in existence, and not at all connected with the note in question, certainly constitutes no variation of the terms of the note.

I think defendant’s plea sets up a‘ good contract and should not have been stricken.


author: Jenkins, J.

text:
    9482, 9511.
    DIXON & CO. v. BANK OF QUITMAN; and vice versa.

    1. “The payee of an accepted bill, who has paid value to the drawer before maturity, is not concerned with the consideration as between drawer and acceptor. He holds the bill unaffected by equities in favor of the acceptor against the drawer.” Flournoy v. First National Bank, 79 Ga. 810 (2 S. E. 547).
    2. Where fraud, accident, or mistake is not net up, parol evidence is not admissible to vary the terms of an acceptance which is absolute and unconditional on its face, by showing that it was in fact intended to be based upon a condition. Heaverin v. Donnell, 7 Smedes & M. (Miss.) 244 (45 Am. D. 302); Ray v. Morgan, 112 Ga. 923 (38 S. E. 335) ; Rheney v. Anderson, 22 Ga. App. 417 (96 S. E. 217) .
    3. “An unaccepted check, drawn imthe ordinary form, not describing any particular fund or using words of transfer of the whole or any part of any amount standing to the credit of the drawer, does not amount to an assignment at law or in equity of the money to the credit of the drawer;”- and the non-payment of such a check does not give the payee a right of action against the drawee. Reviere v. Chambliss, 120 Ga. 714 (48 S. E. 122).
    Decided January 16, 1919.
    4. “A promise by the cashier of a bank, made without consideration to the drawer of a draft, to pay the same out of funds of a customer on whom the draft is drawn and who has been credited with the proceeds of negotiable paper which he as owner transferred to the bank, is not enforceable against the bank, unless the customer assents that the bank shall make such an application of the funds.so placed to his credit.” Bullard v. Bank of Madison, 121 Ga. 527 (49 S. E. 615).
    Assumpsit; from city court of Savannah'—Judge Freeman. October 8,. 1917.
    Suit was instituted by the Bank of Quitman as payee and holder of a draft for $1,350, drawn by Thompson on the defendants,' Dixon & Company, who unconditionally accepted it in writing before it was discounted by the plaintiff. This acceptance was the last of a series of similar transactions. The defendants contend that they should not be held liable on their acceptance, for several reasons, in substance as follows: (1) Because it was merely for accommodation and without any benefit flowing to them, and that this was known to the plaintiff when it discounted the draft. This ground of defense is not, however, relied upon by counsel, who state that it was made only by way of inducement, in order to show the relationship between the parties. (3) Because when Thompson deposited with the plaintiff the proceeds of the draft, the plaintiff knew; both by virtue of the previous course of dealings and by the statement then made to it by Thompson, that this was done with the understanding and agreement that thesamount of the draft was to be applied in part payment of a check for $1,500 which Thompson was to draw in favor of the defendants, to cover their acceptance and payment of a previous draft in the latter amount, and yet, despite such knowledge and understanding, the plaintiff applied these funds and other sufficient funds, later deposited by Thompson for the same understood and stated purpose, to the payment of other checks drawn by Thompson. (3) Because the plaintiff failed to pay the said $1,500 cheek drawn on it by Thompson in favor of the defendants, although it had sufficient funds of Thompson for that purpose at the time of its presentation. (4) Because the plaintiff failed to pay a draft drawn on Thompson by the defendant with the said check attached, as the plaintiff had promised and agreed in writing to do, but applied the funds of Thompson held by it, and which were sufficient for -that purpose, to the payment of other claims against Thompson. .
    The evidence shows that Thompson had been engaged for a number of years in the sawmill business, and had shipped a large part of his lumber to the defendants; and that during this period an arrangement between Thompson and the defendants, and for the accommodation of Thompson, was in operation, whereby Thompson was accustomed to draw sixty-day and ninety-day drafts upon them, which they would accept, and which Thompson would then discount with the plaintiff, and which' when due would be paid by the acceptors giving their check therefor, and that Thompson, for the purpose of. settling the obligation thus raised in their favor, would send to them his check on the Bank of Quitman for a like amount, and, in order to take care of the chedk thus sent to them, would draw another draft upon them, but for a less amount, which would also be accepted by them, and which would in turn be discounted by Thompson with the plaintiff bank, and the proceeds thereof placed in the said bank to the credit of Thompson’s general account; and that Thompson would then have on deposit or else would place on deposit a sufficient amount to cover the difference between the amount of his check and the proceeds of the second draft. There was no direct testimony from either the defendants or Thompson that the plaintiff had knowledge that the last acceptance made by the defendants, and on which the suit is •entered, was for the purpose of providing a portion of the funds whereby Thompson would be enabled to discharge his previous indebtedness to the defendants; while on the other hand the cashier of the plaintiff bank testified positively and unequivocally that neither he nor the bank had such knowledge; and the judge trying the case without a jury, was therefore authorized-to find that this was true, and that so far as the bank knew or was informed, each of these transactions was a separate and distinct transaction, and bore no relation to each other. There was no evidence to sustain the allegations of the defendants’ answer that-the drafts on other’ persons, deposited by Thompson with the plaintiff bank, were deposited with the agreement, direction, or understandihg that the proceeds should be applied to the payment of the $1,500 check drawn by Thompson in favor of the_ defendants and upon the plaintiff bank; nor was there any evidence that Thompson subsequently directed the bank to pay this check or the defendants’ draft out of these or other funds. The evidence fails to disclose that there was on deposit with the said bank, ‘to the credit of Thompson,, sufficient funds to pay the $1,500 check or the draft at the time of their several presentations. The letter and telegram relied upon by the defendants to show a promise on the part of the bank to pay from these funds the defendants’ draft on Thompson are as follows: ,
    (Telegram.) “Quitman, Ga., October 13th. “J. M. Dixon & Co., Savannah, Ga. John E. Thompson has deposited enough items here for collection to make your draft for fifteen hundred good. Think' can remit in few days, as soon as returns are had. The Bank of Quitman.”
    The letter was dated October 21, 1914, addressed to the Exchange Bank of Savannah, and was as follows: “I have yours of the 20th relative to draft of J. M. Dixon & Company on Jno. E. Thompson for $1500.00. I have been holding this draft here trying to collect it. Mr. Thompson has been depositing items for collection and we put them through with some paid and a good many of them being returned unpaid. We have worked the collected balance up to within a few hundred dollars of having enough to take up the draft. We may get enough to-day to finish it, and if so will remit it this week, possibly to-day or to-morrow, depending upon just what we get from him to-day. We are protecting balance collected against anything else. We hope this is, satisfactory. [Signed] H. M. Stubbs, Cashier.”
    Upon the trial of the case the court rendered the following judgment: “The above cause was submitted to the court for its determination (without the intervention of a jury) of the law and the facts. The objections to testimony are all overruled. I think the testimony shows that the paper sued on was an accommodation paper. I think also that it shows that plaintiff was not advised of this fact at the time it was discounted. But these facts do not affect the respective rights of the parties involved here. Some of the questions propounded to Thompson were leading, but notwithstanding this, I think the objections on that ground were properly overruled. In my judgment the defense and counterclaim of James M. Dixon & Co. are not Sustained by the record. An agreement to which the bank was a party, as contended for by the defendant, is not established by the evidence. It is therefore considered, ordered, and adjudged that the plaintiffs above named do recover from the defendants above named the principal sum of $1,250 principal, with interest thereon at 7% per annum from December 11, 1914, and also $1.50 protest fees, 25 cents revenue stamp affixed to certificate of protest, and also all costs of court, without-offset or deduction on account of the defensive matter and counterclaim set up by defendants.”
    Osborne, Lawrence & Abrahams, for plaintiffs in error.

      William L. Clay, contra.
   Jenkins, J.

(After stating the foregoing facts.) Under an application of the different principles of law stated in the syllabus, there was no error in the judgment rendered in the court below. In point of fact it does not appear (and the judge so held) that there was ever any express or implied agrees ment that the unconditional written acceptance as made by the defendants was based upon a parol condition that the proceeds derived therefrom should only be applied in part payment of a previous indebtedness owing to the defendants by Thompson; but under our view of the law, even hád this been made to appear, it would not have been competent, in the absence of a plea setting up fraud, accident, or mistake, to thus vary the terms of the absolute and unconditional written acceptance, by showing that it was in fact based upon a condition.

It furthermore does not appear that there were ever sufficient funds in the bank to pay either the $1,500 check drawn by Thompson, or the draft upon him drawn by the defendants, upon their respective presentations, but even had such been the case, under the authority cited in the third headnote we think that the failure on the part of the drawee to pay an unaccepted check would not give to the payee thereof a right of action against him, since there ordinarily exists no privity of contract between the payee and the person on whom the cheek is drawn.

Under the authority cited in the fourth headnote, even had the promise to the defendants by the bank to pay the defendants’ draft been absolute and unconditional, it still would not have been a binding agreement on the part of the bank unless .it had been made to appear that the drawee had contemporaneously assented that the bank might accumulate and hold for such specific purpose the funds of Thompson then accruing on deposit in said bank. It does not appear, however, either that the promise by the bank was absolute or unconditional, or that any such direction or authority for such specific application had been given it.

Judgment affirmed on main bill of exceptions; cross-bill dismissed.

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


author: Pee Curiam.

text:
    9670.
    Cook, executrix, v. Brown et al.

   Pee Curiam.

1. In an action for damages on account of the burning of a house on the plaintiff’s land in consequence of the burning of trash on a farm by Gus King, one of the defendants, the petition as amended alleged: that “the relation of. master and servant existed between [the defendants] Ida Brown and Gus King, in that the former had employed the latter as a cropper to work the farm on which fire started, . . the former to furnish the land and stock, and the latter was to furnish himself and his family to work the crop on said place [italics ours]; said work was to be done under the direction and control of the former; such contract and relation existed at the time said fire occurred.” The petition further alleged that the fire which destroyed the house “was put out by defendant Gus King and his children, and the putting out of same was under authority of Gus King; ” and that “after said tortious act complained of, it was ratified by defendant Ida Brown, in not repudiating said acts and discharging defendant Gus King and his children, and further in admitting liability for same and offering to pay damages.” Held: {a) Notwithstanding the allegations that in preparing the land for cultivation it became necessary to burn off certain rubbish and trash, and that said King in carrying out his farming operations “put out” fire at different points on the lands of his employer, and that these acts were within the scope of the business whieh King was employed to do, no cause of actiqn was set forth against the landlord, since it did not appear that the fire was set out under her express direction, and the allegation that the acts of the cropper, were within the scope of his employment is expressly negatived by the stipulations of the contract itself, which provided that the cropper was to “furnish himself and his family to work the crop on said place,” and this work was “to be done under the direction and control” of the landlord. By the terms of the contract the acts complained of were excluded from the scope of the cropper’s or servant’s authority and duties. (6) The allegations that the defendant Ida Brown failed to discharge Gus King, and admitted liability for the injury caused by him, and offered to pay damages, did not show ratification of the unauthorized acts of the cropper. Generally, an admission of liability where none in fact exists, and an offer to adjust a demand not legally enforceable, could' not of itself create legal liability.

Decided January 16, 1919.

Rehearing denied January 28, 1919.

Complaint; frond city court of Waynesboro—Judge W. H. Davis. February 25, 1918.

M. C. Barwick, for plaintiff.

E. M. Price, for defendants.

2. The question as to negligence was peculiarly a question for the jury (International Cotton Mills v. Webb, 22 Ga. App. 309 (4), 96 S. E. 16); and there being sufficient evidence to authorize the jury to find for the plaintiff, though it may not require such a verdict, the court erred in granting a nonsuit as to the defendant cropper. Moore v. Dixie Fire Insurance Co., 19 Ga. App. 804 (92 S. E. 302).

■Judgment affirmed, in part, and, reversed in part.

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


author: Wade, C. J.

text:
    9705.
    POOLE v. CENTRAL OF GEORGIA RAILWAY CO.
    Decided January 16, 1919.
    It does not, as a matter of law, appear from the petition as amended that the injury resulted from failure.on the part of the plaintiff to exercise ordinary care. The court erred in sustaining the general demurrer and dismissing the ease.
    Action for damages; from city court of Oglethorpe—Judge Greer. April 10, 1918.

      Hatcher & Smith, for plaintiff.

      Jute Felton, Yeomans & Wilkinson, for defendant.
   Wade, C. J.

Orrin P. Poole sued the Central of Georgia Railway Company for damages on account of certain personal injuries to himself, alleged to have been brought about substantially as follows: On the night of June 13, 1917, about 12:30 o’clock, the plaintiff, a deputy marshal of the City of Marshallville, who, as such, had been generally requested by defendant to regularly inspect its depot, was standing on the defendant’s walk or gravel platform, which was in close juxtaposition to a side-track seldom used by the defendant, and at a point used by the public generally in awaiting trains and in going to and from the depot. The depot was in total darkness, and running parallel to it were three lines of track,—the main line and a side-track on each' side thereof. The defendant’s engine with 'its long line of freight-cars came into the City of Marshallville on the main line, and stopped at the station—the train extending some distance above and below the station. The train was uncoupled below the station, beyond the sight of the plaintiff; and. without any knowledge on his part, ■ some of the cars were shifted to the side-track next to the station and backed to and beyond-the point where he was standing. He alleges: that by reason of several intervening cars, he could-not see the engine or its headlight, and that the train was backed upon the side-track and in his direction without warning; no bell was' rung or whistle blown; no light showed 'on the rear car or on any ear, and no lookout was stationed on the rear car or on the ground to warn of danger; and the defendant was negligent in that it was guilty of all these acts of commission and omission 'notwithstanding the train was baching on a side-track at night and in the direction of thé main street of the city, which crossed the defendant’s tracks at right angles, where the presence of pedestrains should have been anticipated; that the plaintiff was struck by a car or some projection from a car, and that the train ran over his foot, so mutilating it -that amputation was necessary, and thereby caused him to be permanently injured. The defendant demurred to the petition, the demurrer was sustained, and the case dismissed, and the plaintiff excepts.

The facts alleged convey to us such a mental picture of the circumstances leading up to and surrounding plaintiff’s injury as to compel the conclusion that a cause of action was set out, entitling the plaintiff, in the event his allegations of negligence should be sustained by proof, to have his case submitted tó a jury. We cannot say, as a matter of law, that the petition as a whole showed such a want of ordinary care on his part as to authorize its dismissal on demurrer. No fixed rule or set of rules can be laid down or followed in cases of this character, since they stand largely upon their own. facts, and questions of negligence are questions of fact, for determination by a jury. We gather from the briefs of counsel that the trial court’s action in sustaining the demurrer and dismissing the case was more or less influenced by the ruling of this court in the case of Southern Railway Co. v. Young, 30 Ga. App. 363 (93 S. E. 51),. The similarity'between that case and this case is not such as to be controlling; the salient differences being that in the Young ease the train was a passenger-train being operated on the main line, after midnight, with its headlight burning and clearly visible to the plaintiff long before the locomotive struck him; that when injured he was calmly walking in a path, which ran parallel to the main line, and with full knowledge of its close and dangerous- proximity to the track occupied by the oncoming locomotive, which he actually saw approaching, and yet he made not the slightest effort to remove himself to a place of safety; whereas in the instant case the train that injured the plaintiff was a freight-train backing out of the darkness, after midnight, without his knowledge; and the car that struck him was the rear car, or some projection thereof, in a long train of cars, from which no light of any kind showed; no lookout was maintained, and no warning whatsover given, although the injury occurred at a place where, under the facts and circumstances alleged, the the plaintiff’s presence should have been anticipated; and finally it is alleged that the plaintiff had no knowledge that the train, which had pulled up and stopped at the station on the main line,' had been switched onto the side-track near which he was standing, in line with his duties, and that it was backing in his direction. •

We cannot say, as a matter of iaw, that the plaintiff was guilty of such contributory negligence as to defeat a recovery, but it is for a jury alone to say to what extent, if any, he contributed to his injury. It is the opinion of this court that the petition as amended set forth a cause of action, and the trial judge erred in dismissing the case on demurrer.

Judgment reversed.

Jenkins and Luke, JJ., concur.


text:
    9745.
    McELREATH v. GROSS et al.

    Decided January 16, 1919.
    1. Malicious use of legal process is where a plaintiff in a civil proceeding employs the court’s process in order to execute the object which the law intends for such a process to subserve, but proceeds maliciously and without probable cause. In a suit for damages growing out of such malicious use of process, it must appear that the previous litigation has finally terminated against the plaintiff therein.
    2. Malicious abuse of legal process is where a plaintiff in a civil proceeding wilfully misapplies the process of a court .in order to obtain an object which such a process is not'intended by law to effect. In a suit for damages growing out of such a perversion of the court’s process, it is noibneeessary to show that the former litigation was without probable cause, or that it terminated prior to the institution of' the suit ■ for damages.
    3. The court below did not err in sustaining the demurrer as applied to each count of the petition.

      Action for damages; from Camden superior court—Judge High-smith. April 3, 1917.
    It appears that an ordinance of the City of Kingsland imposed certain license taxes for doing business within that municipality; and provided for its enforcement by fine or labor on the streets, when persons liable to the tax transacted such business without first obtaining a license so to do; that Gross, Carleton, and others filed a • petition for injunction against Emmett McElreath, the mayor, and W„ H. Jones, the marshal of the municipality, in which they ' alleged that the ordinance was void, • as not being authorized by the city’s charter; that petitioners had been arrested and fined, for doing business without a license, and that they had sued out writs of habeas corpus before the ordinary, but that the mayor had notified them that he would continue to have them arrested if they attempted to do business without a license; wherefore they prayed that the defendants be enjoined from further arresting or trying them under the said ordinance. On the interfiocutory hearing before the judge of the superior court the defendants were enjoined as prayed. That judgment was reversed by the Supreme Court, it being held that the case fell within the general rule that a court having equitable jurisdiction will not’restrain by injunction a prosecution for the violation of a penal ordinance, or in such proceeding inquire into the validity of the ordinance, and that the case did- not come within the exceptions to the general rule which had in some instances been recognized. See Jones v. Carlton, 146 Ga. 1 (90 S. E. 278). This decision of the Supreme Court was made the judgment of the court below, and, after the final determination of the injunction proceeding, the said Emmett McElreath instituted the present action for damages against the petitioners in that proceeding, alleging in the first count that the former proceeding was without probable cause and was a malicious use of legal process, intended only to injure, harrass,. and humiliate the petitioner in his administration of the office of mayor, and that such was its effect. The second count was for a malicious abuse of legal process, the averments of fact setting up the right of action being substantially the same as in the first count, except that - a lack of probable cause as to the former proceeding was not alleged. To this suit for damages all the pleadings and orders in the former'case were attached as exhibits. The defendants. demurred generally to the petition, and the trial judge sustained the demurrer and dismissed the suit, assigning as his reason for so doing that the injunction proceeding was not without probable cause, and that, since it had been maintained against the defendants in their official capacity, the present individual suit would not lie.

      James T. Vocelle, Emmett McElreath, for plaintiff.

      S. C. Townsend, James R. Thomas, for defendants:
   Jenkins, J.

(After stating the foregoing facts.) It was manifestly not error to sustain the demurrer so far as the first count, pertaining to the malicious use of process, was concerned. The lack of probable cause is one of the necessary, elements to be alleged and proved in an action of this character. In the case of Short v. Spragins, 104 Ga. 628 (30 S. E. 810), the Supreme Court said: “When an equitable petition for injunction and the appointment of a receiver, which fairly and honestly set forth the facts relied upon by the plaintiffs therein, was presented to the judge of the superior court, who entered thereon an order sanctioning the petition, restraining the defendants as prayed and appointing a temporary receiver, this action by the judge afforded conclusive evidence of probable cause -for the bringing of the suit, although at an interlocutory hearing thereafter had the order above mentioned was rescinded by the judge as having been, improvidently granted upon the facts alleged.” See also Georgia Loan & Trust Co. v. Johnston, 116 Ga. 628 (43 S. E. 27).

Nor do "we think that there was error in sustaining the demurrer in so far as it pertained to the second count of the petition, which sought to set up a malicious abuse of legal process. No misapplication or perversion of the court’s process is made to appear. The object attained in suing out the petition for injunction was not a perversion "of that process. If the purpose and effect of suing out the process had been to maliciously injure,, harrass, and humiliate the plaintiff, and it had been instituted without probable cause, but not actually put to some unauthorized use, there would have been a malicious use of a legal process; but in order for there-to be a malicious abuse o'f.process, it must be wilfully misapplied or perverted to some use which the law did not intend that such a process should subserve. Brantley v. Rhodes-Haverty Furniture Co., 131 Ga. 276, 281 (62 S. E. 222). It does not appear that the process was employed for any purpose other than that which such a process was intended by law to effect, since the interlocutory granting of the injunction as prayed was the sole use made or object attained. As to what the present defendants did, the allegations end there. The mere fact that the institution of such a proceeding and the granting of such an order might of itself have incidentally caused the worry,, annoyance, and humiliation alleged, and might also, as charged, have occasioned the usual trouble and expense attending such litigation, could not be taken as^a perversion or misapplication of the process. But if the process had been misapplied and perverted to another and different use, such as the law did not intend such a process to subserve, and if by reason of such perversion the intended worry, trouble, and expense had resulted, then such an action for damages as is now referred to would properly lie. In making clear the father fine but vital distinction which it is here sought to show, the statement in 19 Am. Eng. Enc. Law (2d ed.), 632, quoted by the Supreme Court in Brantley v. Rhodes-Haverty Furniture Co., supra, is helpful. “The principal distinction between an action for malicious abuse of process and one for malicious prosecution is that while the former lies for an improper use of the process after it is issued, the latter is an action for the malicious suing out of the process without probable cause.” See also Porter v. Johnson, 96 Ga. 145, 149 (23 S. E. 123); Mullins v. Matthews, 122 Ga. 286 (50 S. E. 101); Clement v. Orr, 4 Ga. App. 117 (60 S. E. 1017).

Judgment affirmed.

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


text:
    9748.
    ADAIR et al. v. SMITH, executor.
    1. Where a renting agent, acting for the owner of the property, enters into a contract of lease with a tenant, it is not competent to engraft thereon, without the consent of the owner, stipulations relating to'the mutual obligations arising out of the contract between the agent and the owner, so as to bind the latter thereby, since stipulations of this character are foreign to the subject-matter of the lease contract and do not concern the parties to that agreement.
    2. But where, at the instance of the agent and without the practice of any fraud upon his part, the owner of the property, with actual knowledge that such terms and provisions are in the contract, enters his own endorsement upon the contract of lease as signed by the agent and by him presented to the owner for approval, then the stipulations referred to become mutually binding upon both the agent and the owner as an agreement thus arrived at by and between them.
    3. Where one who occupies such a confidential or fiduciary relationship as agent presents to his employer for approval such a contract made in the employer’s behalf with a third person and relating to the business and purposes of his employment, but also containing a stipulation foreign to the subject-matter of the lease and concerning and effecting the rights and interests of the employer and the agent as to matters arising out of the contract, the employer will not be bound to the agent by his approval of the stipulations thus embraced in the writing, unless he had actual knowledge that it contained such provisions.
    4. “Generally, an agency is revocable at the will of the principal. The appointment of a new agent for the performance of the same act, or the death of either principal or agent, revokes the power. If, however, the power ie coupled with an interest in the agent himself, it is not revocable at will; and in all cases the agent may recover from the principal, for an unreasonable revocation, any damages he may have suffered by reason thereof.” Civil Code (1910), § 3575 (1). The interest of the agent, above referred to, must lie in the subject-matter of the agency, and not merely in the profits which are to result from the exercise of the power;' that is to say, in a case like the instant one, the agent must have an interest in the contract of rental, and not merely in the contract of agency by virtue of which he is to be compensated for his future services in the collection of the rents. The work and expense of an authorized agent in finding a tenant and securing a lease could-be taken as sufficient to establish such an interest in the contract of rental.
    5. While, as a general proposition, all dioses in action arising upon contract and involving property rights may be assigned so as to vest title in the assignee (Civil Code of 1910, §§ 3653, 3654), there is a well recognized exception to this rule, which applies in those instances where the contract involves a relation of personal confidence, such as to show that the party conferring the rights must necessarily have intended them to be exercised only by him upon whom they were actually conferred. Tifton &c. Ry. Co. v. Bedgood, 116 Ga. 945 (43 S. E. 257); Cowart v. Singletary, 140 Ga. 435, 446 (79 S. 1. 196, 47 L. R. A. (N. S.) 621, Ann. Cas. 1915A, 1116); 5 C. J. 880, §§ 46, 47. But even though the subject- matter of a contract might of itself in a sense indicate that it was intended to be personal in its nature, the parties thereto can nevertheless by the express terms of the agreement manifest a different purpose and intent (5 C. J. 875) ; and thus where the contract is within itself and by its own express terms made assignable, a contrary purpose will not, as a matter of law, be set up and enforced, unless from a consideration of the entire instrument such a contrary construction is clearly demanded. Where the agreement in effect provides that the service may be performed either by the contracting party himself or by such other person as the contract may be assigned to, in order that a construction contrary to such expressed intent can as a matter of law be inferred it must appear, from the nature of the contract, that the. performance of tlie obligation by another would be essentially different in result from what had been contracted for.
    Decided January 16, 1919.
    5. Where a rent contract, after having been procured and effected at the expense and trouble of an agent, has been approved for him by the owner, with actual knowledge on the owner’s part of a stipulation therein providing that a stated commission from the rent shall go from him to the agent, and stating that the rent shall be paid to the agent named, “its successors or assigns,” an assignee of the contract, upon his acceptance thereof, will ordinarily assume the burdens and acquire the benefits provided for by the terms of the agreement See Alden v. Frank Improvement Co., 57 Neb. 67, 69 (77 N. W. 369).
    Certiorari; from Fulton superior court—Judge Bell. March J5, 1918.
    Forrest and George. Adair, real estate and renting agents, sued Jasper N. Smith for certain commissions claimed to be owing to them. Charles P. Glover Realty Company, as the agent of Smith, prepared and executed a lease of a building owned by him to Marbut & Young, for a period of five years, at a monthly rental of $50; which lease was signed “ Chas. P. Glover Realty Company, Agent, by Eugene S. Kelly, Yice-President,” and by the lessees. Thereafter the lease was presented by the Charles P. Glover Realty Company to Smith for approval, and he made thereon the following entry: “Approved, Jasper N. Smith.” Tire pleadings of the defendant allege, and the evidence in support thereof indicates, that Smith, by reason of his age and infirmity, was unable to read the contract; but the evidence for the plaintiffs authorized the municipal judge- (who tried the ease without a jury) to find that the defendant actually knew,, when he approved the agreement, that it contained the following stipulation: “It is agreed by all parties hereto that the above stipulated rental shall be paid to Chas. P. Glover Realty Co., Agent, its successors or assigns, and Chas. P. Glover Realty Co. is to receive a commission of five per cent, of said rental for the time specified in this contract, the same to be paid by the owner,” although the defendant himself testified that he had not authorized Glover Realty Company to make a lease containing any such clause, and did not know that such a clause was in the lease, and relied on the company to prepare a proper lease, and signed it .without reading it. The defendant testified:' “Glover Realty Company had my business because Mr. Aycock was a stockholder and manager of their rent department, and was attending to my business.” Aycock testified that the defendant let him put it in the hands, of Glover Eealty Company because the defendant liked him and had paid him to attend to the defendant’s business, and he was manager of the rent department, and the defendant thought he would look after it properly. Glover Eealty Company, in writing, “for value received”, transferred and assigned to the plaintiffs, Forrest & George Adair, “their heirs, successors, or assigns, any -and all rights the said Chas. P. Glover Eealty Company now has, or may hereafter have to receive a commission of five (5) per cent, of the rentals agreed to be paid as specified in the attached contract of lease dated November 1, 1915, between Chas. P. Glover Eealty Co., as agent for Jasper N. Smith, as lessor, and G. F. Marbut and E. G. Yoiing, as lessees,-together with any and-all rights the said Chas. P. Glover Eealty Co. now has, or may hereafter have, to have the stipulated rentals provided for in said attached contract paid to it, and together with all right, title, interest, claim, or demand that said Chas. P. Glover now has or may hereafter have or acquire against the said Jasper N. Smith,'or the said G. F. Marbut, or the said E. G. Young, under or by virtue of any of the terms, conditions, or agreements of the said attached contract of lease.” Forrest and George Adair gave Smith written notice of the assignment, and notice that they asserted a right to collect the rentals and receive the commission; and they gave the tenants written notice of the assignment, and demanded that the rentals be paid only to them. Smith told the plaintiffs that Aycock was attending to his business, and that he (Smith) had a perfect right to do as he pleased, and that while he had no objections to the Adairs, he had not'employed them, and for this reason he repudiated the assignment of the contract. After the assignment Smith first placed the business with another firm, who collected the rents and received the commissions, -and this arrangement continued until Aycock went into the renting business for himself, after which the rents were collected by him, and he in turn received the commissions. . "•
    The case was tried before one of the judges of the municipal court of Atlanta. Smith defended on the grounds hereinafter stated. Judgment was rendered for the plaintiff, and the defendant sued out certiorari upon the following grounds: (a) Said judgment is contrary to the evidence and without evidence to support it, and is therefore contrary to law. (b) Said judgment is contrary to the weight of the evidence and is therefore contrary to law. (c) Because the evidence showed that petitioner had revoked the agency of Glover Bealty Company, and said agency was revocable under the -law. (d) Because the agency given to Glover Bealty Company was not coupled with any interest in the subj'ect-matter of the agency, and was therefore revocable under the law. (e) The evidence showed that the petitioner desired the special and peculiar services of Glover Bealty Company because Mr. C. G. Aycock was a stockholder in said company and manager of its rent department, and the agency was given to Glover Bealty Company on that account, and the authority of that company could not be delegated to its assigns without his permission and consent, which he had never given. (/) Because Glover Bealty Company could not legally turn over the collection and custody of his rents to any one except such person as he might himself designate.' (g) Because contract rights coupled with liabilities or involving a relation of personal confidence between the parties cannot be transferred to a third person by one of the parties to the contract without the assent of the other. (h) Because the clause in the lease contract on which the plaintiffs relied did not state that any commission should be paid to any one except Glover Bealty Company, and did not make it payable to their assigns. (i) Because the mere use of the word “assigns” in the part of said clause relating to collection of rents did not make the contract assignable when it called for personal service. (/) Because a right of action is not assignable if it does not involve, directly or indirectly, a right of property. (7s) Because Glover Bealty Company had no property right or interest in petitioner’s property or rents, and a right to commission is not an interest in the property. (7) Because the clause quoted in paragraph 4 of plaintiff’s petition was not a contract between Jasper N. Smith and Glover Bealty Company, but was only inserted in a contract between Jasper N. Smith (acting through his agent Glover Bealty Company) and Marbut & Young, (m) Because petitioner’s agent, Glover Bealty Company, was not authorized to make lease contracts with tenants containing any such clause as that quoted in paragraph 4 of plaintiff’s petition. The duty of Glover Eealty Company was to act in behalf of petitioner’s interest, and not to enter into contracts with tenants for the benefit of said agent and sacrificing the interests of said agent’s employer. (n) Because there was no consideration moving from Glover Eealty Company to petitioner, or from Marbut & Young to Glover Eealty Company, or to petitioner, or from or to any other person, for any contract of petitioner to turn over 'the right to collect his rents to any person to whom Glover Eealty Company might assign its alleged rights without petitioner’s consent, (o) Said Adairs did not assume and could not have been compelled to perform the duties of Glover Eealty Company unto petitioner, or to bear any liabilities unto petitioner on account of said assignment, (p) Because the said clause was void for lack of mutuality and want of consideration, (g) Because the commissions sued for were, at the time of said assignment, a mere possibility of having a future commission, which could not be legally sold or assigned.
    The superior court sustained the certiorari and rendered final judgment in favor of the defendant. The plaintiffs except to the judgment of the superior court, and assign error thereon upon the ground that it is contrary to law, contrary to evidence, and without evidence to support it.

      A. A. & E. L. Meyer, for plaintiffs.

      E. M. & G. F. Mitchell, for defendant.
   Jenkins, J.

(After stating the foregoing facts.) Something may properly be said in elaboration of the last two divisions of the syllabus. The clause in the lease agreement making the rent payable either to the Glover Eealty Company, or to its successors or assigns can not be construed, as was done in Swarts v. Narragansett Electric Lighting Co., 26 E. I. 436 (59 Atl. 111), as words merely descriptive of the persons who might take an interest in or incur a liability under the contract, but must be taken as effecting the terms of the contract itself. Here the words as plainly employed designate the person or persons who shall execute the contract, and are not intended to be merely descriptio personae and to pertain only to who might acquire a right or incur a liability thereunder. See also Schlesinger v. Forest Products Co., 78 N. J. L. 637 (76 Atl. 1024, 30 L. R. A. (N. S.) 347, 138 Am. St. E. 637). But while, in the proper construction of a contract which might otherwise be taken as having been intended to be personal in its nature and therefore non-assignable, heed must thus be given to the actual and' different intent as evidenced by the language used, still we do not mean to say that even the actual incorporation of general words of assignment must always and necessarily show that the real intent of the agreement was not to procure the benefit of a personal and peculiar service. As was stated by the late Justice Lumpkin in Cowart v. Singletary, cited in the syllabus, “Certain classes of contracts aro inherently non-assignable in their character, such as promises to marry, or engagements for personal services, requiring skill, science, or peculiar qualifications.” As an example of an engagement calling for such special, personal, and peculiar skill or qualifications, Chief Justice Stiness, of the Supreme Court of Rhode Island, in Swarts v. Narragansett Electric Lighting Co., supra, instances an agreement whereby one obligates himself to paint a portrait for another. In such a case, even were the word “assigns” added to the name of the party upon whom the obligation itself is imposed, it still could not be thought or held that the mere addition of such word could reasonably manifest an intention to render assignable a contract which in its very nature was inherently personal and utterly incapable of thus being made so. While it might be truly said that the services involved in the instant case call for the exercise of integrity and ordinary business capacity (and the same might be said as to almost any engagement), still it cannot be contended that they involve the exercise of any special and peculiar talent, or that their performance by another would be essentially different in result from what had been contracted for. When the assignee of the contract collects the rent and turns it over to the owner, the service is precisely and in all respects the same as if the work had been accomplished by the original agent. Here, as always, the intent of the parties, as shown by the contract, at last must govern; and while it might be altogether reasonable to suppose that an owner might desire some ■ particular person, for some particular reason, to execute such a ■ service, still there is no reason why the law would forbid or prevent his making a contrary agreement authorizing the agent to assign the contract of service to another; and where the contract as made plainly expresses such a purpose, it should be considered .¡that he intended to do that which he actually did, unless it be that the work provided for, if performed by another, would be essentially different from what has been contracted for.

The question has not been an altogether easy one to decide, since all' the arguments, both in justice and under the law, do not seem unmistakably to point the same .way. But under our view of the law, when the contract as agreed upon by the owner made the rent payable either to Glover Realty Company or to such other person as the contract might be assigned to, the owner (so far as his liability for commissions is concerned) lost the power to select for the service one of his own particular and peculiar choice, even though it be granted that the service might, in a sense, otherwise and ordinarily be properly considered as personal in its nature. It might well be said that the agent’s power of assignment would not authorize him to require the owner to accept in his stead the services of one who was dishonest, or one who was incompetent to perform even such an ordinary task; but no such question as this is made by the record, and the defendant in fact has made specific disclaimer of any such ground of defense.

It is our opinion that the judge of the superior court erred in sustaining the certiorari and rendering final judgment in favor of the defendant.

Judgment reversed.

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


text:
    9857.
    SWICORD et al. v. WAXELBAUM.
    Decided January 16, 1919.
    1. Where less than tho amount of an execution is received from one of joint defendants therein, under an agreement made or authorized by the plaintiff that the payment thus received shall relieve that defendant from further liability, the agreement will discharge the other defendants; but such an agreement by a sheriff, made without authority from the plaintiff, will not have that effect.
    2. The doctrine of ratification is not applicable against a person as to an act of one who did not assume to act in his name or under authority from him.
    Affidavit of illegality; from city court of Cairo—Judge Willie. April 17, 1918.
    Joseph Waxelbaum obtained a joint judgment against T. H. Swicord, S. P. Swicord, and I. P. Chapman, upon which execution was issued for $700 principal, $122.24 interest, $16 costs, and $82.22 attorney’s fees. Upon this execution appears the following credit: “Received of I. P. Chapman on the within execution, this June 4, 1917, $314.48.” After that date the execution was levied upon property of T. II. and S. P. Swicord, and they filed an affidavit of illegality, sotting up that the execution had been fully extinguished, in that “on the 7th’day of June, 1917, I. P. Chapman, one of the joint defendants in said cause, and against whom said judgment on which said fi. fa. issued and said levy was made, paid to the authorized agent of plaintiff in fi. fa., the same being D. D. Perkins, as sheriff of Grady county, Ga., who had said fi. fa. in hand for collection, one third of the amount of the principal, interest, and accrued costs, and was released from further liability thereon by said agent, and it was agreed by said agent that no further levy would be made under said judgment against said I. P. Chapman, and that by said acts, ail of which were,without the knowledge of these defendants, defendants are discharged from further liability on said judgment.” The judge sustained a demurrer to the affidavit of illegality, and in his judgment set out that it was “admitted in open court by counsel for the defendants in the illegality that he did not claim or intend to allege that in receiving payment and making the alleged release the sheriff was acting in any capacity other than in his official capacity as sheriff of the county.”

      S. P. Cain, for plaintiffs in error.

      Pottle & Hofmayer, Bell & Weathers, contra.
   Jenkins, J.

(After stating the foregoing facts.) Where a plaintiff in fi. fa. accepts a sum of money from one of the joint defendants therein under an agreement that he is to be relieved from further liability under the fi. fa., the other defendants are also relieved, and the fi. fa. is discharged. Warthen v. Melton, 133 Ga. 113 (4) (63 S. E. 833, 131 Am. St. E. 184). The question in this case is, did the plaintiff in fi. fa. agree to release Chapman from further liability upon the payment made by him to the sheriff? The affidavit of illegality sets up that such a release was made by the plaintiff through the sheriff, acting for him as his duly-authorized agent, and the theory of the plaintiffs in error is that since ,the plaintiff in fi. fa. has received the benefit of the payment so received, he must be held to have adopted the conditions on which it was made (Civil Code of 1910, § 3593), although there is nothing in the record to indicate that the plaintiff in fi. fa. had knowledge of any such agreement on the part of the sheriff. It will be seen, however, from the statement made above, that it was specifically agreed in the court below that the defendants in fi. fa. did not claim or intend to allege that the sheriff in receiving the payment and making the alleged release was acting in any capacity other than in his official capacity as sheriff of the county. In other words, it is not contended that in making the agreement he assumed to be acting upon any authority given him by the plaintiff in fi. fa. The sheriff, as such, as a matter of course, has no authority whatsoever to make any alterations as to the liability under the execution of the defendants .in fi. fa., and is only empowered to extinguish a fi. fa. upon the receipt in cash of the full amount called for thereby. The defendant in fi. fa. was chargeable with knowledge that such is the law. Since, therefore, the sheriff, as such, could not assume such authority, and since it is admitted that he did not purport to be acting under any such authority delegated to him by the plaintiff in fi. fa., the doctrine of ratification could not in any event have proper application, for the reason that a subsequent ratification by the principal of the acts of'another must be for acts which were assumed to have been done in his behalf and under his authority. See Roberts v. Bank of Eufaula, 20 Ga. App. 221, 225, (92 S. E. 1015).

Judgment affirmed.

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


text:
    9877.
    Harris v. Union Cotton Mills.
   Jenkins, J.

1. Where a father hires his minor son to an employer to do certain work, and the employer, without the consent of the father, puts the son to a different and more hazardous employment, and the son is injured, the father has a cause of action in his own behalf against the employer for the recovery of such diminution of the child’s earning capacity, between the date of the injury and the date of his attaining his majority, as the injury may have occasioned. Braswell v. Garfield Cotton Oil Mill Co., 7 Ga. App. 167 (66 S. E. 539).

2. But where a minor, such as indicated, has been injured, and suit for damages is maintained in his own behalf, the fact that his employer might have changed the work and duties of his employment would not have the effect of having relieved the plaintiff of the duty on his part to exercise that degree of intelligence, knowledge, and judgment actually possessed by him; and thus, in such a suit, proof of such change of employment would not of itself furnish a ground of recovery, where itvalso appears that the injury complained of was brought about by the plaintiff’s own inexcusable negligence. Wilder v. Miller, 128 Ga. 139 (3) (57 S. E. 309); Hendrickson v. Louisville & Nashville R. Co., 137 Ky. 562 (126 S. W. 117, 30 L. R. A. (N. S.) 311, note).

Decided January 16, 1919.

Action for damages; from Walker superior court—Judge Wright. April 26, 1918. (See 144 Ga. 716.)

W. E. Mann, Rosser & Shaw, for plaintiff.

Shattuck & Shattuck, W. M. Henry, for defendant.

3. If the .danger was so patent and obvious that it must necessarily have been as easily known to the servant as to the master, the latter will not be liable for his failure to give warning. Grown Cotton Mills v. McNally, 123 Ga. 35 (51 S. E. 13); Williams v. Atlantia Coast Line R. Co., 18 Ga. App. 120 (89 S. E. 158) ; 26 Cyc. 1171.

4. According to the plaintiff’s evidence, he was at the time of the injury an ordinarily developed boy of average intelligence, lacking two months of being sixteen years of age. He had worked in the mill for a period of several months, and, for half of each day for a period of three weeks, had been engaged at work with the particular machinery by which he was injured. None of the alleged acts of negligence on the part of the master are substantiated by the evidence of the plaintiff, save the allegation as to the failure of the master to give warning of the danger. The plaintiff necessarily must have known that to place his hand within the rapidly revolving open machinery, with which he was necessarily familiar, would be a dangerous act. Viewing the entire evidence as presented, with all reasonable inferences properly deducible therefrom, the court, in our opinion,- did not err in granting a nonsuit. See Crown Cotton Mills v. McNally, supra, s. c. 127 Ga. 404 (56 S. B. 452), in which the facts involved were very similar to' those shown by the evidence here presented.

Judgment affirmed.

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


text:
    9889.
    Reeves v. Perry
   Jenkins, J.

This was a suit by a cropper against his landlord for the value of a half of the crop going to the plaintiff. The evidence given by the plaintiff in support of the account sued on authorizes by its language the verdict rendered, and the verdict is reconcilable therewith. It is possible, as contended by the plaintiff in error, that the verdict contains a mistake in' calculation in regard to the amount claimed for cottonseed. According to the evidence of the defendant, this would he true. The record, however, does not contain the accounts of sales referred to by counsel for the plaintiff in error in' his brief, nor does the record show that they were in fact admitted in evidence by the court, nor does it contain the statement referred to in the evidence as having been rendered to the plaintiff by the defendant. This court is unable to say that there has been any such manifest and plain mistake as it would be authorized to correct either by the grant of a new trial or by direction. See Taylor v. Gilmore, 3 Ga. App. 93 (59 S. E. 325).

Decided January 16, 1919.

Complaint; from city court of Millen—Judge Dekle. April-26, 1918.

A. S. Anderson, for plaintiff in error.

Judgment affirmed.

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


text:
    9893.
    Estes v. Thomas.
   Jenkins, J.

This was an action for libel, in which it was alleged that while the plaintiff was a candidate for re-election to a certain municipal office, the defendant caused to be written, printed, and circulated certain false, malicious, and defamatory statements( charging the plaintiff with having cheated, robbed and defrauded him of certain money which the plaintiff, as his attorney, had collected for him on a claim growing out of a damage suit. The defendant admitted the publication and circulation of the charge, and pleaded its truth as justification; and this was the only defense relied upon. The verdict was for the defendant. Error is assigned on the overruling of the plaintiff’s motion for a new trial. Held:

1. The motion to dismiss the bill of exceptions, on the ground that the rule of this court as to the manner of preparing briefs of counsel (Civil Code of 1910, § 6338) was not complied with by counsel for the plaintiff in error, is without merit. Civil Code (1910), § 6182; Barfield Music-House v. Harris, 20 Ga. App. 42 (92 S. E. 402).

2. The verdict, though not demanded, was supported by evidence sufficient to authorize it, and will not be disturbed on the general grounds of the motion for a new trial.

3. The 4th ground of the motion for a new trial assigns error because the court gave in charge to the jury section 4436 of the Civil Code (1910),' as to privileged communications, except subsection 4, which relates to reports of proceedings of, legislative and judicial bodies. It is contended, that, one of the subsections given being applicable, it is not cause for a new trial that other parts of this section which the judge read to the jury were not applicable, it not appearing that the reading of the inapplicable parts tended to mislead the jury or erroneously affect their verdict, to the prejudice of the complaining party. See Eagle & Phenix Mills v. Herron, 119 Ga. 389 (3) (46 S. E. 405). Subsection 6, the only portion of the section which it is contended was applicable in the present suit, provides that “Comments upon the acts of public men, in their public capacity, and with reference thereto,” are privileged communications. Since the alleged libel, if it were in fact untrue, could not be justified on the ground that it was made bona fide and related to the acts of the plaintiff as a public man and in his public capacity, the contention as to the applicability of this subsection, it being the only one thus relied upon, is without-merit; and since the charge here complained of might have reasonably misled and confused the jury, to the prejudice of the plaintiff, a new trial must follow.

Decided January 16, 1919.

Libel; from city court of Way cross—Judge McDonald. December 31,1917.

1-3. The matters ruled upon in paragraphs 1, 3, and 3 of the decision are sufficiently stated therein.

4. The 5th ground of the motion for a new trial is that the court erred in charging: “The relation of attorney and client has always been regarded as one of special trust and confidence. The law therefore requires that all the dealings between an attorney and his client shall be characterized by the utmost fairness and good faith, and it scrutinizes with great closeness all transactions had between them.” The exception taken is that this “was calculated to lead the jury to believe that in the trial of the issue presented to them, they could find for the -defendant upon a weaker showing of justification than would be required if the plaintiff had not been a lawyer.”

5. The 6th ground is that the court erred in charging: “If Mr. Estes was not guilty of the matters and things set up and charged against him in that circular, and Mr. Thomas [the defendant] published that circular, and it was for the purpose of injuring and damaging Mr. Estes, then Mr. Estes, the plaintiff in this case, would be entitled-to recover against him in such amount as you think in your judgment would be fair, just, and proper.” This is alleged to be error because “if the charge was untrue, the law implies malice, no matter what the. purpose of the defendant wasf”

4. The exception taken in the 5th ground of the motion for a new trial is without substantial merit.

5. The charge complained of in the 6th ground of the motion for a new trial was not an accurate statement of the law, since the rule is, that, unless the communication be a privileged one, the bona tides of the motive, purpose, and intent of the person publishing the libel is not involved. In other and different portions of the charge the correct rule seems to have been clearly indicated, without, however, undertaking to correct the inaccuracy here referred to. See, in this connection, Central of Georgia Ry. Co. v. Deas, 22 Ga. App. 425 (96 S. E. 267).

6. The exception taken in the 7th ground of the motion for a new trial is without merit.

7. The assignment of error in the 8th ground of the motion for a new trial is not properly presented.

Judgment reversed.

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

6. The 7th ground is that the court erred in'charging: “The existence of a fact testified to by one positive witness is to be believed, rather than that such fact did not exist because many witnesses who had the same opportunity of observation swear that they did not see or know of its having transpired.” (Civil. Code of 1910, § 5751.) It is alleged that this instruction “was not applicable to any issue or circumstance in the case, and was calculated to mislead and confuse the jury.”

John W. Bennett, Paries & Peed, for plaintiff.

H. M. Wilson, A. B. Spence, for defendant.


text:
    9901.
    Phillips v. Stapleton, solicitor.
    Decided January 16, 1919.
    Confiscation; from city court of Miller county—Judge Geer. June 10, 1918.
    P. D. Rich, for plaintiff in error.

      N. L. Stapleton, solicitor, contra.
   Jenkins, J.

A proceeding to condemn an automobile used on a public road or private way of this State in conveying liquors or beverages, the sale or possession of which is prohibited by law (Ga. L. 1917, Ex. Sess., p. 16, see. 20), is summary in its nature, and the provisions of the statute as to this proceeding must be strictly complied with. Porter v. Lively 45 Ga. 159, 161; Dart v. Mayhew, 60 Ga. 104, 105; Mabry v. Judkins, 66 Ga. 732; Hinton v. Goode, 73 Ga. 233; Parks v. Simpson, 124 Ga. 524 (52 S. E. 616). Under the provisions of the act, it is the duty of the sheriff or other arresting officer seizing t(he vehicle to report such fact to the solicitor of the county, city, or superior court where the seizure is made, “whose duty it shall be within ten days from the time he received said notice to institute condemnation proceedings,” etc. Under the provisions of the act, such a proceeding is barred where commenced more than ten days subsequent to the date of such notice. That the delay in instituting the proceedings in this case was occasioned by the fact that the sheriff, without the knowledge or consent of the defendant, had entrusted the car, while in his possession under such seizure, to another, who, without the connivance of the defendant, took it away and failed to return it, would make no difference in the application of this rule.

Judgment reversed.

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


text:
    9904.
    MATHEWSON et al v. BRIGMAN MOTORS CO.
    Decided January 16, 1919.
    Rehearing denied January 28, 1919.
    1. “In a possessory-warrant proceeding there is no question as to. the title or as to.the-right of possession of the property in controversy; the sole question is as to the manner in which the possession .was acquired by the defendant.” Oaks v. Singer Sewing Machine Co., 17 Ga. App. 517 (87 S. E. 719) ; Trotti v. Wyly, 77 Ga. 684.
    2. Where one sells property to be paid for in installments, and. in a written contract retains title to the property until payment of the purchase-money and it is stipulated therein that if any of the installments are not paid, the vendor “shall have the right to .take possession of said property without any legal process, and all payments made up to the time of default shall be applied as rental for said property and depreciation in value,” the contract is one of conditional sale and not of lease (Rhodes Furniture Co. v. Jenkins, 2 Ga. App. 475, 478, -58 S. E. 897, and eit.) ; but where the vendee defaults as to some of the payments, the vendor, as between himself and' the vendee, nevertheless has the right, under the contract, so far as mere possession of the property is concerned, to remove it without 'any legal process; Wilmerding v. Rhodes-Haverty Furniture Co., 122 Ga. 312 (50 S. E. 100), Where, however, a third person, in good faith and without notice of such conditional-sale contract, has acquired the property from the vendee, and is in possesion of it in a quiet, peaceable, and lawful manner, and such possession is taken from him by the vendor, without any legal process and without his consent and against his will, he is entitled to a judgment in his favor in a possessory-warrant proceeding instituted by him against the vendor, since the scope of such a proceeding is limited as indicated above (paragraph 1). See Civil Code (1910), § 5371; Marchman v. Todd, 15 Ga. 25; Broadhurst v. Carswell, 119 Ga. 529 (46 S. E. 658) ; Copeland v. Lucas, 6 Ga. App. 6 (64 S. E. 113) ; Oaks v. Singer Sewing Machine Co., supra.

      (a) The judge of the municipal court was authorized, und'er the facts of this ease, to find that the plaintiff acquired possession of the property in dispute in good faith, ai|d without notice of the conditional-sale- contract existing between Mathewson & Lane, defendants and vendors, and J. W. Bowen, vendee, and was in the quiet, peaceable; and legally-acquired possession of the property at and! 'before the time possession thereof was taken by defendants Without legal process and-without plaintiff’s consent.
    3. The assignments of error not disposed of by the foregoing rulings are without substantial merit.

      Judgment affirmed.

    Certiorari; from Fulton superior court—Judge Pendleton. June 4. 1918.
    A possessory warrant for a certain motor-truck was sued out by Brigman Motors Company against Mathewson and Lane, and on the trial of the case in tbe municipal court of Atlanta possession was awarded to the plaintiff. .Certiorari was sued out by the defendants, the superior court overruled the certiorari, and they excepted.

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

      Robert C. & Philip H. Alston, for plaintiffs in error.

      Westmoreland, Anderson & Smith, contra.
   ON MOTION ROE REHEARING.

Jenkins, J.

The defendant in error in this case was the lessee in possession under the vendee when the motor truck was seized without legal process by the original vendors. In the contract of lease by which the defendant in error had gone into possession of the truck, mention was made in general terms of certain remaining unpaid purchase-money notes, maturing monthly, due by the vendee to his vendors, and it was agreed as between the lessee and the lessor, the vendee, that out of any future rental profits derived from the use of the truck these notes should be satisfied before any portion of such profits should be applied upon a pre-existing debt owing by the vendee to the lessee. It is urged by counsel for plaintiffs' in error, the original vendors, that the lessee at that time, and because of such reference, must necessarily have been charged with legal notice, or put upon sufficient inquiry, as to what constituted the terms, stipulations, and conditions of the original sale. It is not contended by plaintiffs in error that the lessee, at the time of táking possession of the truck, had any other or different notice of these terms than such as might in this way be implied. The lease contract itself in no way refers to the terms, conditions, and reservations of the original sale; and while the lease makes general reference to the outstanding purchase-money notes as indicated, even the notes themselves in no way purport to state such terms. It is only in still another, and different instrument, referred to not by the lease but only by the notes, that the terms and conditions of sale are actually set forth.

It is the general rule that where instruments are executed at the same time, for the. same purpose, and in the course of the same transaction, they are to be read and construed together. And where a note recites that it is given in pursuance of a specified contract, the recital is sufficient to charge even a purchaser of the note with knowledge of the contract to which reference is made. Turner Lumber Co. v. Henderson Co., 20 Ga. App. 682 (2), 688 (93 S. E. 301); Glover v. Wesley, 20 Ga. App. 814 (93 S. E. 513). Thus, were it here a question between the original vendors and the vendee, or between the maker of the notes and a purchaser thereof, as to what constituted the consideration and purport of that obligation, it would manifestly be true that the reference made in the notes to- the contemporaneous agreement' would be sufficient to require that it together with the notes themselves be considered as one instrument, and that they be construed together. But the issue here involved is not one of construction as to what constituted the terms and conditions of the sale as between the original parties to the sale, or as to a party made by the purchase of the notes given under the sale, but the sole issue here presented is one of notice to a third party holding possession under an independent léase. The lessee of.the truck was neither party nor privy to the original contract of purchase and sale, and never became such. So far as we are able to say from the record, the lessee had a right to believe that the notes referred to by the lease, and which the. ■ lessee had neved seen, were ordinary, plain purchase-money notes, without reservation, restriction, special rights, or conditions therein contained. There was no sort of effort to effect a substitution of parties as to the original contract of sale. Even so far as the lessor himself was concerned, the lessee did not undertake to assume that contract or become bound in regard to its terms and obligations. ’ All that the lessee did was merely to agree with the lessor that the first rental profits derived from the use of the leased truck should be held back for the benefit of the lessor, in an amount sufficient to ■satisfy the maturing obligations of the lessor. It would not seem • that merely because the lessee had entered into such a limited and independent agreement with the vendee, and with him alone, the lessee' should be charged with notice, on behalf, of the original vendors, of the terms, stipulations, and conditions relative to the original sale, though in nowise stated or referred to in the lease, nor even set forth in the notes to which general reference' was made by the lease, and where the reference'to the notes by the lease was only for a purpose restricted by the agreement. The lease in nowise attempted, by reference or otherwise, nor for its own purpose was-it in any way necessary, to engraft within itself the independent terms and conditions imposed by the provisions off the anterior sale, to which the lessee was neither party nor- privy;' and we can not say as a matter, of law that simply because the lessee bad thus agreed with the vendee to hold back for his benefit certain profits as indicated, diligence required of the lessee not only to run down the terms of the notes referred to, but also the terms of the separate and independent instrument to which reference was made by the notes, in order to ascertain, if perchance, the vendors in the contract made with another party had seen proper to reserve the extraordinary right, on default of any payment, to seize and possess the property without process at law.

The other cases cited by the movant pertain to the right of possession, and this question, as already stated, is not here involved.

Rehearing denied.