text:
    9624.
    Grier v. The State.
    Decided January 15, 1919.
    Contempt; from city court of Dublin—Judge Flynt. March 8, 1919. ' '

      J. S. Adams, for plaintiff in error.

      S. P. New, solicitor, contra.
   Jenkins, J.

The deputy sheriff of the city court of Dublin was adjudged in contempt of that court on account of his refusal to execute the official order of the judge, imposing sentence for contempt upon another court official, until after such order had first been reduced to writing. A motion of the deputy sheriff to set aside the judgment against him was overruled, and to .the judgment overruling the motion exception was taken, his contention, as. insisted upon in ,the brief of his counsel in this court, being that the order committing the other official for contempt Was unlawful, and that since a city court has no authority to define contempts, the deputy sheriff could only be legally adjudged in contempt for his refusal to execute a lawful order. Held: The Supreme Court having decided that the order adjudging the other official in contempt :was legal (Watson v. Dampier, 148 Ga. 588, 97 S. E. 519), there can be no merit in the contention relied upon by the plaintiff in error in this case.

. Judgment affirmed.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    9664.
    LEWIS v. PRYOR.
    Decided January 15, 1919.
    /Where an action ,of trover for intoxicating liquor was pending at the t-irnp of the adoption of the act of 1917 which prohibits the possession of such liquor, and by subsequent amendment to the petition the plaintiff elected to recover only the value of the liquor at the time of the. conversion, a recovery was not. prevented by the adoption of that law. The court erred in dismissing the petition.
    -Trover; from Ben Hill superior court—Judge Crum. March 8, - 1918.

      Otis H. Elkins, Jesse Grantham, for plaintiff, cited;
    10 Michie’s Dig. Ga. R. 44; 122 Ga. 658; 111 Ga. .760; 138 Ga. 513; 5 Ga. App. 344; 6 Ga. App. 544; Civil Code (1910), § 6; 8 Cyc. 1022;. 4 Ga. 208; 8 Ga. 31 (9); 12 Ga. 437; 37 Ga. 134 (2); 38 Ga. 350; 43 Ga. 480; 87 Ga. 294; 105 Ga. 487; 110 Ga. 203 (4); 134 Ga. 866; 2 How. 611; 1 L. R. A. (N. S.), 528, note.
   Luke, J.

The plaintiff in this case sought to recover $156 as damages for the alleged illegal conversion of a barrel of whisky. The petition was filed on March 13, 1916, and in an amendment allowed on January 17, 1918, the plaintiff elected to take a money verdict for the value of the property at the time of the conversion. Upon oral motion in the nature of a general demurrer, the court dismissed the petition on March 8, 1918, upon the ground that since the passage of the law approved March 28, 1917, prohibiting the ownership of liquors in Georgia (Ga. L. 1917, Ex. Sess., p. 7), recovery could not be had for an illegal -conversion of liquor, even though the conversion may have taken place prior to May 1, 1916. Prior to May 1, 1916, it was not unlawful to own and hold liquors, unless they were held and. used in violation of the law. See Ga. L. 1915, Ex. Sess., pp, 70-89.' The petition in this case merely sought to recover the money value of the property alleged to have been illegally converted to the use of the defendant. The fact that the trial day of the cause of action was not reached until a time subsequent to the passage of the law hereinbefore referred to did not of itself defeat the right of the plaintiff to recover in his action filed at a' time when by law he could own and possess the property alleged to have been illegally converted. See Padgett v. Sturgis, 6 Ga. App. 544 (65 S. E. 352). The court erred in dismissing the petition.

Judgment reversed.

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


text:
    9681.
    Wolverine Soap Company v. Sellers, et al.

    Decided January 15, 1919.
    Action on guaranty; from city court of Cairo—Judge Willie. November 7, 1917.

      Bell & Weathers, for plaintiff.

      J. M. Sellers, S. P. Gain, for defendant.
   Luke, J.

This case has been here for review twice before. 13 Ga. App. 380 (79 S. E. 246); 19 Ga. App. 295 (91 S. E. 489). The question now raised is upon exceptions to the judgment overruling the plaintiff’s motion for a new trial, which motion was based on the general grounds only. The verdict was not without evidence to support it, and, the learned trial judge having approved the verdict, it was not error to overrule the motion for a new trial.

Judgment affirmed.

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


author: Wade, C. J.

text:
    9682.
    LIFE INSURANCE COMPANY OF VIRGINIA v. PATE.
    Decided January 15, 1919.
    1. Where an application for insurance is not attached to the policy nor referred to therein, it cannot be considered as a part of the contract, or introduced in evidence as such or to show that certain statements there made were contracted or warranted to be true (Civil Code of 1910, § 2471); but a failure to make the application a part of the policy does not prevent the insurer from pleading and proving that the insured made false and fraudulent statements as to the name and address of the doctor or doctors that attended him within a certain period, and that he thus fraudulently induced the insurer to issue the policy, and it was therefore void.
    2. A material representation is one that would influence a prudent insurer in' determining whether or not to accept the risk, or in fixing the amount of the premium in the event of such acceptance.
    3. Questions as to the truth and materiality of representations are generally issues of fact, for determination by the jury; but where all the testimony relating to a question of fact excludes every reasonable inference but one, the issue becomes an issue of law, for determination by the court.
    Action on insurance policy; from city court of Columbus— Judge Tigner. March 26, 1918.

      J. L. Willis, A. W. Gozart, for plaintiff in error.

      Hatcher & Hatcher, Ed. Wohlwender, contra.
   Wade, C. J.

Mrs. Ruth Pate brought suit against the Life Insurance Company of Virginia on two insurance policies issued by that company to her husband, Carl L. Pate. The defendant filed demurrers, both general and special, to the petition as amended, and the court sustained the demurrers and dismissed the case. The judgment of dismissal was reversed by this court. Pate v. Insurance Company of Virginia, 19 Ga. App. 597 (91 S. E. 883). The case was subsequently tried upon its'merits, with the result that a verdict was rendered in, favor of the plaintiff, the defendant thereupon made a motion for a new trial, which was overruled, and it excepted.

It appears from the plea and answer that several defenses were relied upon. However, for the purposes of our decision, we deem it necessary only to consider the defense that the insured was guilty of fraud in the procurement of" the policies, in that he "falsely represented in his application for the insurance that he had not been attended by a physician during the past 13 months.” The applications were not attached to the policies nor referred to therein, and therefore cannot be considered as a part of the contracts, or introduced in evidence as such or to show that certain statements were contracted or warranted to be true (Civil Code, § 3471; Puryear v. Farmers Mutual Ins. Asso., 137 Ga. 579, 73 S. E. .851) ; but a failure to make the applications a part of the policies did not prevent the defendant from pleading and proving that the insured had made false and fraudulent statements as to the name and address of the doctor that had attended him within a certain period, and had thus fraudulently induced the insurer to issue the policies, and that they were therefore void, not as a matter of contract, but because of fraudulent procurement. Johnson v. American Nat. Life Ins. Co., 134 Ga. 800 (68 S. E. 731); Southern Life Ins. Co. v. Hill, 8 Ga. App. 863 (70 S. E. 186); Southern Life Ins. Co. v. Logan, 9 Ga. App. 503, 508, ((71 S. E. 743). Therefore the question in this ease is, did the insured, in order to procure insurance, wilfully, fraudulently, and falsely answer that he had not been attended by a physician during the past 13 months ?

The applications are dated May 13, 1915, and the undisputed evidence of Dr. "W. A. Arnold is that in the year 1914 he treated the insured on the following dates: May 3.7, June 3,. June 3, and June 5. Thus the fact is established by uneontradicted evidence that the insured had been attended by a physician within twelve months from the, date of the applications. The treatment of the insured on the above-named dates was for acute pneumonia of the right lung, which lung showed, upon examination, cavities and rales, and Dr. Arnold testified that he told the insured that in his . opinion lie (the insured) had a tubercular lung. "In general, it may be said that the test, in determining whether questions contained in an application for insurance are material, is whether the knowledge or ignorance of the facts sought to be elicited thereby would materially influence the action of the insurer” (3 Cooley’s Briefs on the Law of Insurance, 1953); and this general rule is not altered even where the loss' arises from causes totally unconnected with the material fact misrepresented or concealed, because a true disclosure of the fact might have led the company to decline tne'insurance altogether, or to accept it only at a higher premium. See Empire Life Ins. Co. v. Jones, 14 Ga. App. 647, 656 (82 S. E. 62), and authorities there cited. Moreover, in the instant case the probable consequences resulting from the untruthful statement of the insured are somewhat magnified, when considered in connection with undisputed testimony adduced on the trial which shows to a reasonable certainty that his former doctor’s diagnosis was a correct one, since only a short time after the applications were signed a letter written by him to a friend shows that he was in a hospital for the treatment of tuberculosis, and the proofs of death filed with the company state that he died of this disease. Surely, then, this misrepresentation involved a most material fact, for if the insured had truthfully answered that Dr. Arnold had treated him within the preceding twelve months, this fact would have at least put the insurance company on inquiry, and would have enabled it to ascertain from the said doctor that in his opinion, the insured had a tubercular lung; and it cannot be assumed that the insurer would have issued the policies if a truthful response to the question as to what physician had attended the insured within a period of twelve months from the date of the applications had brought this fact to'its knowledge. In fact the insurer’s medical examiner testified in so.many words that he would not have recommended the deceased for insurance had .he known of his previous treatment for pneumonia and tuberculosis. Neither can it be assumed that the questions in reference to attendance by a physician.within twelve months from the date of the applications were merely* idle questions intended to reveal only unimportant facts. To the contrary, it must have been the intention and expectation of the insurer that a truthful answer to such questions would reveal facts or information which might possibly deter the company from issuing the policies to the applicant, or cause the company to make such inquiry as to -past medical attendance as would result in a refusal to contract. We may therefore safely infer that the misrepresentations and coiicealment on the part of the insured induced or brought about the contract of insurance. Of course, “in determining'what constitutes attendance by or consultation of a physician, consultation or attendance for slight temporary ailments need not be considered” (3 Cooley’s Briefs on the Law of Insurance, 2163); but certainly no one would or could seriously classify acute pneumonia and tuberculosis of the lung as “slight temporary ailments,” since it is a matter of common knowledge that the consequences of these diseases are very often fatal.

Able counsel for'the defendant in error assume the position that the materiality of the representations made by the insured was a question of fact for determination by the jury, but it appears to be well settled that while questions as to the truth and materiality of representations are generally issues of fact, for determination by a jury, yet where all the testimony relating to a question of fact excludes every reasonable hypothesis but one, the issue becomes an issue of law, for adjudication by the court. Bichards on Insurance (3d ed.), 133 § 101; Umpire Life Ins. Co. v. Jones, supra. It seems inconceivable that the failure of the insured to answer truthfully the questions as to his past attendance by a physician was due merely to lapse of memory, and that there was no intention to deceive or fraudulently induce the insurance company to enter into a contract which it would not otherwise have made. No reasonably intelligent adult of normal mind could have forgotten entirely the fact that Dr. Arnold attended him not only once but several times within the previous year, and diagnosed his'trouble as acute pneumonia and tuberculosis of the lung. Nor does it appear possible that the insured could have altogether dismissed from his mind the attendance of the doctor, in view of the latter’s statement to him that he (the insured) had a tubercular lung-one of the most serious and destructive diseases known to bumanity—and that, too, when his attention was especially directed?, in the medical examination for the insurance, to the subject of tuberculosis.

There is no evidence to indicate that either the insurance company or any of its agents had any knowledge whatsoever of the untruthfulness of the representations made by the insured as to the past attendance upon him by a physician, or knew anything not disclosed to the insurer which might work an estoppel against the company.

To sum up the whole matter, the undisputed testimony showed that misrepresentations were made by the insured in his applications for the policies sued upon, that there was a concealment of a fact, which must have been wilful, and that the misrepresentations made were material and led to the issuance of the policies, and that the facts wilfully concealed were also material, inasmuch as they would have assuredly led to an investigation which would have prevented the making of the contracts.

Judgment reversed.

Jenkins and Luke, JJ., concur.


author: Jenkins, J.

text:
    9686.
    COLLINS et al. v. FRAZIER.
    1. Where an architect enters into a contract whereby he is to furnish plans and specifications, together with estimates of the cost, for the erection of a building, and one sum is to be paid for the entire service, this constitutes an entire contract (Spalding County v. Chamberlin, 130 Ga. 649, 61 S. E. 533) ; and' if, after having furnished the plans and specifications, he should, without fault on the part of the other party or what would amount to the consent of that party, fail or refuse to furnish the estimates contracted for, this would constitute a breach of the contract, and he could not recover thereon for such part performance. Ala. Gold Life Ins. Co. v. Garmany, 74 Ga. 51. When there is ' such a breach the other party has a right to rescind the contract, on notification and return of what he has received, or he may at his pleasure abide by the contract and have a right of action to recover damages for the breach; but he can not do both. If, after such' breach, he not only retains the articles received, but puts them to his own use, this is equivalent to an election to abide by the terms of the original contract, and he thereafter holds under those terms the articles actually received. Harden v. Lang, 110 Ga. 392 (36 S. E. 100).
    2. Even when work to be performed under an indivisible contract has not been done according to its terms, yet if the service is received, and is of benefit to the party receiving it, he is liable in a sum equal to the value oí the service rendered and material furnished, and' the party rendering the service and furnishing the material may recover such sum in a suit on a quantum meruit. Ford v. Smith, 25 Ga. 675; Sentell v. Mitchell, 28 Ca. 196; Southern Railway Co. v. Branch, 9 Ga. App. 311 (71 S. E. 696). In such a case the plaintiff must prove the value of his services, and the defendant may prove anything in proper reduction thereof. Jacobus v. Wood, 84 Ca. 638, 640 (10 S. E. 1099).
    Decide January 15, 1919.
    Certiorari; from Fulton superior court—Judge Bell. March 33, 1918.
    C. E. Frazier brought suit in the municipal court of Atlanta against J. S. and C. B. Collins, alleging that he was an architect, and that the defendants employed him to prepare plans and speei-_ fications for a building to be erected by them, he agreeing to prepare the’ plans and specifications 'for a price that he would consider reasonable and that he thought would be satisfactory to the defendants; that about sixty days after the plans and specifications had been prepared and delivered to the defendants, he called on them for a payment, stating to them that his charge would be-one and three-fourths per cent, of the cost of the building, and the defendants then paid him $100 on account. The petition as amended alleged that the defendants were indebted to him in the sum of $437, the building having cost approximately $35,000. He after-wards amended the petition by adding a count based oU a quantum meruit. The defendants answered, setting up that they employed the plaintiff to. prepare plans, specifications, and estimates, he agreeing to prepare the same regardless of price, and to make the price satisfactory to them; that the work was done in a" very unsatisfactory manner, and they denied indebtedness. They subsequently amended their answer by setting up that the estimates which the plaintiff had agreed to prepare were not prepared according to contract, that the $100 paid to him was paid before they knew or had opportunity to know of the errors and mistakes in the estimates, and that, by reason of his failure to make the estimates with reasonable care and skip, he broke his contract and was not entitled to anything; and they prayed for a judgment against him' for $100. The trial of the case resulted in a verdict in favor of the plaintiff for $350. The defendants sued out certiorari, the certiorari was overruled, and they excepted to that judgment.

      Paul S. Etheridge, Moore & Branch, for plaintiffs in error.

      Robert C. & Philip H. Alston, contra.
   Jenkins, J.

(After stating the foregoing facts.) It is insisted by the defendants that the- trial court erred in refusing to charge the jury as follows: “If you believe, from the evidence, that the plaintiff was employed by defendants to prepare plans, specifications, and estimates, then I charge you that this would be an entire contract, and that unless the plaintiff in good faith and with reasonable care and skill performed all of the contract, then hfe cannot recover on any part of the contract.” So far as appears from the evidence adduced upon the trial of this case, the plans and specifications furnished by the plaintiff conformed in every respect to the requirements of the contract; and while the defendants introduced testimony tending to show that the estimates furnished by the plaintiff were inaccurate, the undisputed evidence shows that the plans, specifications, and -estimates as furnished were accepted, retained, and used by the defendants in the erection and completion of the building for which they were furnished, and that no complaint was made with reference thereto until the present suit was instituted. There was ample evidence to support the verdict; and, under- the rulings stated in the -headñotes, and the facts of this case, the court did not err in refusing to give to the-jury the charge requested by ■ the defendants. The ruling made by the Supreme Court in Spalding County v. Chamberlin, 130 Ga. 649, (61 S. E. 333), is not in conflict with the holding here made, since that ease was not-an action on a quantum meruit, where there was acceptance and use of a portion of the agreed service, but was a suit based upon contract, where no such fact of use and acceptance was shown.

The other exception, which is taken to the charge given, is governed by the same principle, and the charge is not subject to the criticism made.

Judgment affirmed.

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


text:
    9696.
    SWAFFORD v. KEATON et al.

    1. “The first amendment to the constitution of the United States denies ' to Congress the power to make any law respecting an establishment of religion or prohibiting the free exercise thereof. [Civil Code (1910), § 6684.] That instrument contains no limitation on the powers of the State in this particular, but every State in the Union has in its constitution a provision denying to the civil authorities the right to control or interfere in any way in matters purely ecclesiastical. . The people of no State in the Union, as a .political entity, have any creed or religion. The people of the United States, as a political entity, have no creed or religion. Each individual within the jurisdiction of the United States, whether he be within the limits of a State or elsewhere, has a right to determine for himself all of those questions which relate to his relation to the Creator of the universe. No civil authority can' coerce him to accept any'religious doctrine or teaching, or restrain him ■from associating himself with any class or organization which promulgates religious teaching. Whether he shall adopt any religious views,, or, if so, what shall be the character of those views, and the persons with whom he shall associate in carrying out the particular views, are all questions addressed to his individual conscience, which no human authority has the right, even in the slightest way, to interfere with, "so long as his practices in carrying out his peculiar views are not inconsistent with the peace and good order of society.” Mack v. Kime, 129 Ga. 1, 16 (58 S. E. 184, 24 L. R. A. (N. S.) 675).
    Decided January 15, 1919.
    2. “When an individual becomes a member of a religious organization, his uniting with it is his voluntary act, and he becomes bound by the rules and usages of the organization. . . As to all matters purely ecclesiastical he is bound by the decisions of the tribunal fixed by the organization 'to which he belongs, as an arbiter to determine the dis-, puted questions relating to matters peculiarly” within the province of the organization.” Mack v. Kime, supra. Thus, the courts of law must not and can not seek to disturb, alter, or interfere with judgments thus rendered upon matters of church doctrine or discipline.
    3.. (a) The law recognizes the necessity and propriety of an investigation by a' church of alleged misconduct on the part of its members; and charges which may be preferred either orally or in writing in the bona fide discharge of such a duty are to be taken as privileged communications, and will be thus accounted when made in good faith, even though they should in fact be entirely erroneous.
    (b) But if such charges are actually known to be false at the time they are entered, and are maliciously and! wilfully made, with the purpose and intent of injuring another, they can not be regarded as privileged, and the occasion’ and circumstances of their making will afford no protection. Etchison v. Pergerson, 88 Ga. 620 (15 S. E. 680); Civil Code (1910), § 4437.
    4. Under the. foregoing rulings, it was error to sustain the defendants’ demurrer and dismiss' the petition.
    Action for damages; from Douglas superior court—Judge Bartlett. March 28, 1918.

      W. H. Swafford sued W. B. Keaton, M. M. Daniel, D. ~W. Daniel, J. T. Lee, and Thomas Carnes, in Douglas superior court, claiming damages in the sum of $10,000. Petitioner alleges as follows: He had been a member in good standing of Cold Springs Primitive Baptist Church, located in said county. On the Saturday before the first Sunday in April, 1917, a regular preaching day for said church, the Reverend Thomas Carnes announced the call of a church conference; whereupon, without any previous notice to petitioner, the clerk informed the said Carnes that a certain charge had been handed ip against the said W. H. Swafford, and in the presence of the public assembly, including petitioner, his wife, their sons and daughters, neighbors, and friends, as well as many members of said church, proceeded to read said charge, in form as follows: “After careful investigation of the report, we the undersigned Brothering of the Primitive Baptist Church at Cold Springs deem it our duty to present a charge against Brother W. H. Swafford for making what we consider a false affidavit to avoid paying the sum of $1.75 court cost in making an appeal in a lawsuit between him and J. T. Duncan from the Justice Court to the Superior Court. This being what is usually termed a pauper oath. Signed: W. R. Keaton, W. M. Daniel, D. W. Daniel.” While the paper thus read was signed by only three of the defendants, its preparation and publication as aforesaid was the joint and several action of all five of the defendants named, who, it is alleged, had previously conspired together to write and publish the same. Although petitioner then and there arose • and disclaimed •any previous notice that the charge would be preferred, and attempted to be heard in explanation and defense, and sought to have the matter investigated before it came up for consideration, the said Carnes would not permit any discussion in his behalf, and made the announcement that the church was going to exclude petitioner, and that any member of the church who voted to retain him would be likewise excluded: ITpon the vote being then and there taken six members voted to ^retain petitioner, and twenty-. eight, acting under the' intimidation of the said Carnes, voted to exclude him, whereupon the said Carnes announced that such six members would be given until the next regular meeting day to make acknowledgement for having voted to retain petitioner, and that in the event this was not done, they would be excluded. Petitioner alleges that the charge as prepared and read was knowingly and maliciously false; that it was intended by defendants to injure and damage .him, and that it resulted in the defamation of his character and standing, and exposed him to public hatred, contempt, and ridicule, all to Kis injury and damage in the amount claimed.
    The defendants filed a demurrer to the petition on the following grounds: “1. This court has no jurisdiction of said cause, same b'eing privilege matters growing out of and concerning the deliberations of a church body and tribunal, no property right being involved. 2. The petition shows on its face that this question and all matters complained of transpired in an ecclesiastic court and.tribunal, said tribunal being within its power, authority, and jurisdiction, and only a question of doctrines of a church and crime and discipline concerning and involving such questions, this court has no jurisdiction in such matters.” The court sustained the demurrer and dismissed the petition, and the plaintiff excepted.

      James & Bedgood, for plaintiff.

      J.H. McLarty, J. R. Hutcheson, Astor Merritt, for defendants.
   Jenkins, J.

(After stating the foregoing facts.) The rules of law which in our opinion touch upon and govern this case are set forth in the headnotes. In a case of this particular character it may not, however, be amiss to state plainly that, the judgment of the court below having been based purely upon a question of law as raised on demurrer, neither the judgment of that court nor the judgment of this court either expresses or intimates any opinion whatever as to what is the truth as to any issue of fact involved.

Judgment reversed.

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


text:
    9698.
    CITY OF WARRENTON v. SMITH.
    A cause of action against the city is stated in the petition, from which it appears that the plaintiff, a child; was injured in the city, in the courthouse square belonging to the county, by the fall of an iron shaft on which he and other children were playing when it fell, one end of which - was lying on a slab at the edge of the court-house steps and the other end on a brick pier situated at the edge of a public street of the city; that it was placed there by the city authorities, who under an agreement with the county commissioners had charge of the court-house square and had been improving the square and keeping it in condition for use by the citizens of the city; that for years many people, including children, had been frequenting the square at the place where the injury occurred; that this shaft was alluring and attractive to children; that it was not braced or fastened, and slight pressure was likely fo cause it to fall, and that the city had notice of these facts. The court did not err in overruling the demurrer to the petition.
    Decided January 15, 1919.
    (Certiorari granted by the Supreme Court.)
    Action for damages; from Warren superior court—Judge Walker. April 3, 1918.

      E. P. Davis, for plaintiff in error, cited:
    Civil Code (1910), § 403; 15 A. & E. Enc. L. (1st ed.) 1007, 1165; 28 Cyc. 834, 836, 1383; Doyle v. Vinalhaven, 66 Me. 348; Bolster v. Ithaca Street R. Co., 79 N. Y. App. Div. 239 (affirmed, 178 N. Y. 554); Tower v. Rutland, 56 Vt.. 28; 6 McQuillin, Mun. Corp., § 2774; 4 Dillon, Mun. Corp. (5th ed), §§ 1699, 1718; Alger v. Lowell, 3 Allen, 402; Ernst v. West Covington, 116 Ky. 850; Zettler v. Atlanta, 66 Ga. 195; City of Rome v. Baker, 107 Ga. 341; Parker v. Macon, 39 Ga. 425; City Council of Augusta v. Tharpe, 113 Ga. 152; Savannah &c. Ry. Co. v. Beavers, 113 Ga. 402; Mayor &c. of Unadilla v. Felder, 145 Ga. 440.

      E. T. Shurley, Horace S Frank Holden, contra, cited:

      American Telephone &c. Co. v. Murden, 141 Ga. 208; 6 McQuillin, Mun. Corp., §§ 2774, 2757; Irvine v. Greenwood, 89 S. C. 511 (72 S. E. 228, 232); Beaudin v. Bay City, 136 Mich. 333 (4 A. & E. Ann Cas. 248) ; City Council of Augusta v. Tharpe, supra; 13 Ruling Case Law, 371, 419, 421, 423, 425; 28 Cyc. 1284, 1293, 1307, 1308, note, 1311, 1365, 1384, 1406; Civil Code (1910), § 4420; Mills v. Ry. Co., 140 Ga. 181; Etheredge v. Ry Co., 122 Ga. 853-5; Mayor &c. v. Felder, 145 Ga. 440, 443; Parker v. Macon, 39 Ga. 725; 19 Ruling Case Law, 1135; City Council of Augusta v. Jackson, 20 Ga. App. 710; City Council of Augusta v. Mackey, 113 Ga. 64-8.
   Luke, J.

C. M. Smith Jr., by next friend, C. M. Smith Sr., brought suit for damages against the City of Warrenton, alleging in substance that the plaintiff, who was four years of age, was injured in that city, in the court-house square belonging to the county, by the fall of an iron shaft, round in shape, two inches in diameter, and about twenty feet long, one end of which was lying on a slab at the edge of the court-house steps, and the other on a pier made of brick, covered with cement plaster, located at the edge of a public street of the city; that the plaintiff and other boys were playing on the shaft when it fell to the ground, injuring him severely; that it was not braced or fastened, and slight pressure on it was likely to cause it to fall; that it was pla.ced there some months before that time by the authorities of the City of Warren-ton, who, by consent of the county commissioners and under agreement with them, had charge of the court-house square, and had been improving it and keeping it in condition for use of the citizens of the city; that for many years many people, including adults and children, had been frequenting the court-house square at the place where the injury occurred; that this iron shaft was alluring and attractive to children; that the city had both actual and constructive notice of its dangerousness, and had actual notice that children played upon and around it, and had notice for many years that children frequented the path and played at and near the place where the plaintiff wás injured. It was alleged that the city was negligent in placing and maintaining the iron shaft in the insecure and dangerous condition described.

The defendant demurred, upon the ground that the petition disclosed that the injury occurred on the court-house property, belonging to the county, and not on one of the streets or sidewalks of the city, nor at a place over which the City of Warrenton had jurisdiction; and further upon the ground that the dangerous bar of iron which fell upon the plaintiff, causing his injury, could be reached by him only upon his voluntarily going upon the courthouse property, etc. The court overruled the demurrer to the petition, and the defendant , excepts to the judgment.

The petition alleges that the City of Warrenton had charge of the court-house square for many years and had a walk' across the court-house square from one public street to another; and that the shaft of iron which injured the plaintiff was placed there by the city) in order to stop travel over a certain Ayalk-way. The petition is clear that the City of Warrenton maintained this agency, which, because of its unsafeness, was liable to injure children who played upon or around it. As against the demurrer this court, of necessity, must take the allegations of the petition to be true. Under the rulings of the Supreme Court in American Telephone & Telegraph Co., v. Murden, 141 Ga. 208 (80 S.. E. 788), and Mayor &c. of Unadilla v. Felder, 145 Ga. 440 (89 S. E. 423), and cases there cited, the petition sets forth a cause of action. The court did not err in overruling the demurrer.

Judgment affirmed.

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


text:
    9706.
    Penick Supply Co. v. Anderson et al.

    Decided January 15, 1919.
    Complaint; from city court of Madison—Judge Anderson. April 8, 1918.

      M. C. Few, for plaintiff.

      Williford & Lambert, for defendants.
   Jenkins, J.

1. Where a provision for the payment of attorney’s fees is included in a note given by a decedent, his estate may be- made liable therfor in a sait thereon against the administrator in which such fees are claimed, after notice of the. claim has been served as is prescribed by the statute. Harris v. Powers, 129 Ga.. 74 (58 S. E. 1038, 12 Ann. Cas. 475) ; Story v. Wolff, 21 Ga. App. 727 (2) (94 S. E. 899).

2. Where any or all of the heirs of a decedent whose estate has no legal representative take upon themselves the exercise of those duties which properly appertain to the office of a legal Representative only, they become liable to a creditor of the estate, as executors in their own wrong, for double the value of the property of the estate possessed or converted by them, up to the amount of the creditor’s claim. Alfriend v. Daniel, 48 Ga. 154; Willingham v. Rushing, 105. Ga. 72, 79 (31 S. E. 130).; Bowen v. Groover, 77 Ga. 126 (2-6).

3. Under the practice prevailing before the adoption of the code, an executor in his own wrong could be sued generally as executor, and judg- . ment recovered against him as such (Shotwell v. Rowell, 30 Ga. 557; Allen v. Hurst, 120 Ga. 763, 48 S. E. 341) ; but since the adoption of the code it is declared (Civil Code of 1910, § 3886) that an executor de son tort is liable as such to the. creditors and heirs-of an estate for double the value of tlve property so possessed or converted, and that he shall not be allowed to set off any debt voluntarily paid by him out of its assets. The nature of the suit has thus been limited to a personal action against the wrong-doer, and can not be treated as being directed against the estate itself; and while in such a suit by a creditor the claim against the decedent affords to the plaintiff his legal status, the suit is merely for double the value of the property illegally possessed or converted, and can not properly be brought upon the original obligation itself. ■

4. Even were it possible to construe the present action against the alleged wrongful executors as being for double the value of the personal property illegally possessed and converted, to the extent of the plaintiff’s claim under the note, it was nevertheless not error on the part of the trial judge to refuse to permit the plaintiff to .convert the action into one against the estate itself -by making, the subsequently legally appointed adininistrator a party defendant thereto; nor was it error upon the part of the judge, when sitting as both court and jury, to refuse to render judgment against the defendants for the conditional attorney’s fees provided for by the note, for the payment of which the estate had never become legally liable.

Judgment affirmed.

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


text:
    9754.
    Smith v. Fisher.
    Decided January 15, 1919.
    Mortgage foreclosure; from city court of Floyd county—Judge Nunnally. May 4, 1918.

      F. W. Copeland, for plaintiff in error. .

      Maddox & Doyal, contra.
   Jenkins, J.

This case is controlled hy the ruling made by this .court in McAnally v. Bank of Abbeville, 22 Ga. App. 178 (95 S. E. 737), where the facts were similar. It was not error to refuse the grant of a new-trial on the ground of the movant’s absence on account of sickness at the time the case was tried; it appearing that, even though the movant was represented at the trial, no motion' for continuance was then made, and it not being made to appear that the movant was at that time unable, by the exercise of due diligence, to communicate the fact of " his illness to the pourt or his attorney. In this case it appears that the movant had anpple opportunity to inform the court or his attorney .of his sickness, and failed to do so merely because he was under the impression that .the case would not be called. See also Burton v. Etheridge, 19.Ga. App. 511 (91 S. E. 927).

•Judgment affirmed.

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


text:
    9761.
    Bellinger v. Mutual Benefit Industrial Life Insurance Association.
    Decided January 15, 1919.
   Jenkins, J.

1. Where in'a petition for' certiorari a plaintiff in fi. fa. in an illegality proceeding set forth the grounds of the affidavit- of illegality filed by the defendant, and alleged that “No facts were necessary to a determination of the issues involved, the questions presented being exclusively questions of law”, and assigned error solely upon the following grounds, to wit: 1st, because the court overruled petitioner’s motion to strike the several stated grounds of the affidavit of illegality, for the reason that they or none of them presented any matter of defense; and 2d, because the court erred in sustaining said affidavit of illegality upon any or all of its grounds, for the reason that no one or all of them. presented' any legal reason why the fi. fa, should be quashed, the judge of the superior court in passing upon the only exceptions thus brought before him was authorized to consider that the statements of fact contained in the several grounds of the affidavit of illegality were conceded to be true.

2. Under the facts as thus considered, the affidavit of illegality was properly sustained. Lott v. Wood, 135 Ga. 821, 823 (70 S. E. 661) ; Freeman v. Gaither, 76 Ga. 741. See also Bedingfield v. First National Bank, 4 Ga. .App. 197 (61 S. E. 30) ; Continental Fertilizer Co. v. Pass, 7 Ga. App. 721 (67 S. E. 1052) ; Hartsfield v. Morris, 89 Ga. 254 (15 S. E. 363).

Judgment affirmed.

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

Certiorari; from .Chatham, superior court—Judge Meldrim. January 14, 1918. .

An execution issued by a,justice’s court in the City of Sa/annah , was attacked on grounds which in substance were: (1) that the justice’s court was without jurisdiction to render a money judgment in a proceeding in which such a judgment was not sought, but which was merely an attempt to obtain specific performance under an alleged contract; and (2) that the judgment was not rendered on the regular day fixed for the holding of the court,, and the defendant, although it had filed with the justice a demurrer • to the jurisdiction of the court, had no notice of the hearing and did not waive notice. The affidavit of illegality was heard in the municipal- court of Savannah (the courts of the justices of the peace in Savannah having been abolished, and the municipal court having superseded them). The judge of the municipal court sustained the affidavit of illegality, quashed the fi. fa.,- and dismissed the levy'made under it. The plaintiff in fi. fa. brought the case to the superior court by certiorari, and in the petition set forth the grounds of the affidavit of illegality, and stated that “No facts were necessary to a determination of the issues involved, the questions presented being exclusively questions of law.” The petition complained of the failure of the judge of 'the municipal court to sustain a motion to strike the grounds of the affidavit of illegality, for the reason that they did not present "any sufficient matter in law why the execution should not proceed to satisfaction.” The judgment sustaining the affidavit of illegality,, dismissing the levy, and quashing the fi. fa., was complained of for the reason that “No one or all of the "several grounds of illegality presented any legal reason why the fi. fa. should be quashed, and plaintiff therein denied satisfaction thereof.” The chief judge of the municipal court, who tried the case, adopted for his answer to the certiorari “all the allegations of fact as contained in the petition.” No evidence was embodied in the petition. The record sent to the superior court in response to the writ of certiorari consisted of the answer of the municipal court, the judgment óf the municipal court, and the fi. fa. A copy of what purports to have been the original summons was with the record sent up, but was not referred to in the petition for certiorari or in the answer. On the hearing in the superior court the judge rendered the following judgment:

“Usually in certiorari cases the issues are clearly presented by the petition and answer, but in the instant case there is so much confusion that it is difficult to reach a satisfactory conclusion. It appears that a suit, was commenced in the justice court of the 3d district, G. M., that this court was abolished, and that its duties devolved upon the municipal court of Savannah. It further appears that the justice court had rendered a judgment in favor of Bellinger against the insurance company for $80, besides interest and costs. I say ipferentially, because in the record before me there is no judgment, and I assume there was a judgment, because it is so recited in the execution. The execution was levied on April 7, 1917. and affidavit of illegality was interposed on April 13, 1917. The plaintiff in fi. fa. moved to dismiss the affidavit of illegality. It does .not appear except inferentially what action was taken in the court on this motion to dismiss. As the illegality was sustained, I must assume that the .motion to dismiss was overruled, although no order or judgment to that effect appears. . His honor Judge Bourke, on the 8th day of' August, 1917, rendered a judgment sustaining the affidavit of illegality, dismissing the levy, and quashing the fi. fa. To this judgment plaintiff in fi. fa. excepted, and these exceptions form the grounds of the petition for certiorari. To the writ of certiorari the court' below answers that ‘all the allegations of fact contained in the' petition are true.’ There is no exception or traverse to the answer, and I am now compelled to dig out of the debris of the abolished court and fifteen grounds of illegality the legal truth. I find among the papers what purports to be a copy of the original summons and exhibit. The order setting up the copy of the pleadings in lieu of the lost original is not signed by the judge, and it neither appears in the petition for certiorari nor in the answer thereto that this copy was ever established or introduced in evidence. How it gets into the papers before me does not appear, and yet the first six grounds of illegality are based on the alleged illegality of the judgment. . What that judgment was, or if any were rendered, only appears from the recital in the fi. fa., which fi. fa. is dated April 6, 1917, and recites that in the justice court for the third -district a judgment for $80 was rendered. No evidence whatever seems to have been introduced. The petition for certiorari avers: ‘2. No facts were necessary to a determination of the issues involved, the questions presented being, exclusively questions of law.’ As illustrative of the almost inextricable confusion which exists, look at the.7th ground' of illegality, which is: ‘Said justice court was not' in session at the ‘time said alleged judgment was rendered.’ This ground raises a great, big eontroling issue of fáct. The burden was on the defendant in fi. fa. to sustain by evi'dence'this averment, and yet I am told by the plaintiff in fi. fa. in his petition for certiorari that ‘no facts were necessary to a determination of the.issues involved.’ I can only understand from this that it was conceded in the .court below that the ground in the affidavit of illegality, that the ‘justice court was not in session at the time said alleged judgment was rendered,’ is true. It is toó clear for argument that justice courts must be held at stated times and places, and if the court that rendered the judgment was not in session at the túne when the judgment was rendered, then such judgment is void, and illegality is the proper defensive remedy. A consideration of the several grounds of'illegality is not necessary. If the affidavit is good on any of the grounds, that is sufficient. The burden is on the plaintiff in certiorari to show affirmatively that the judgment of the court below should be reversed, and the error committed must be alleged in the petition. It has not been so made to appear. The certiorari is overruled and the judgment affirmed. [Signed] Peter W. Meldrim, Judge, E. J. C.,' G-a. January 14; 1918.”

In the bill of exceptions to the judgment overruling the certiorari are-grounds based upon the-theory that the judgment itself shows that it was arrived at from consideration of certain pleadings in the case which were not a part of the record in the certiorari proceeding; and_ that the judgment itself indicates that' it rests upon a conceistion of the facts in the case which is not supported by any evidence contained-in the certiorari record; and finally it is alleged that “No one or all of the several grounds of illegality constitute any legal reason why the fi. fa. should have' been quashed.” The plaintiff in error specifies as material to a clear understanding of the errors complained of: the fi. fa., with all entries thereon; the affidavit of illegality; the petition for certiorari, with all entries; the.answer thereto; the judgment on the certiorari; and the alleged copy summons of the justice’s court from which the fi, fa. issued.

Don H. Clark, for plaintiff.

Osborne, Lawrence & Abraham for defendant.


text:
    9762.
    ATLANTIC PAPER & PULP CORPORATION v. BOWEN.
    Decided January 15, 1919.
    Eehearing denied January 18, 1919.
    No cause of action is shown hy the plaintiff’s petition, by which he sought to recover for injuries alleged to have been caused by a fall in consequence of the breaking of an insufficiently spliced and insecure roof-joist while he was at work with other carpenters building a roof on a shed which was being erected by his employer, the defendant. The case is controlled, in principle, by the case of Byrd v. Thompson, 146 Ga. 300 (91 S. E. 100), and cit.
    Action for damages; from Chatham superior court—Judge Meldrim. April 25, 1918.

      Travis & Travis, Hitch & Denmark, for plaintiff in error.

      Oliver & Oliver, contra.
   Luke, J.

Suit was brought against the Atlantic Paper & Pulp Corporation by John Bowen, for damages on account of personal injuries. A general demurrer to the petition was overruled, and error is assigned on that judgment. Thp petition alleges: The defendant company operates a large plant for the manufacture of paper pulp at Port Wentworth, in Chatham county, Georgia.' During August, 1917, and prior thereto, the defendant was erecting, as a part of its plant, a large shed, about thirty-five feet high. The roof-joists upon which the roof was to be placed covered a span of about forty feet. One of the timbers used by the defendant to span this distance was not long enough for this purpose, and, in order to make the span, the roof-joist had been spliced about midway of the span. This splice was defectively made, and was made simply by nailing a short piece of lumber, about eighteen inches long, across the joint in the rafter. The spliced timber was nailed to the other timbers composing the rafter, with forty or sixty-penny nails. Underneath the joint which had been spliced, there had been placed a prop made of several short pieces of 4x4 scantling, which also had been spliced together to make the prop. The construction above described was improper, defective, and dangerous. The roof-joist should have consisted of a single piece of timber extending from wall to wall, without any joint or break therein to be spliced, but even if the splice had to be made, it should have been made safely and properly. The proper manner in which to splice this rafter was to use a solid 2x8 timber, six or eight feet long, firmly and securely bolted to the ends of the rafter, at the joint and on each side thereof. The prop underneath the splice should likewise have been of a solid piece of timber, and not stuff picked up and spliced together; and in addition to the splice mentioned and the prop, there should have extended from the splice, diagonally to the walls of the building, and on each side of the splice,'a brace of sufficient strength to carry the load placed on the roof; none of which was done. Acting under the orders of 'the defendant company, petitioner and eight or ten other carpenters mounted the roof for the purpose of putting the sheathing on the rafters, preparatory to putting on the roofing, which was to consist of tar paper. The crew went to the top of the building, and were hoisting up the lumber which was to constitute the sheathing, and'a considerable quantity thereof had been hoisted to the roof, and while petitioner and the other employees of the company were nailing the sheathing upon the rafters, the weight of the carpenters and of the lumber caused the splice and the prop to break, precipitating petitioner a -distance of thirty-five feet to the ground. As a result of petitioner’s fall he has sustained severe injuries, which are described. It is alleged that the injuries are due entirely, to the fault and negligence of the defendant, its servants, agents, and employees, for the following reasons, to wit: (1) Because the defendant failed to furnish to petitioner a safe and suitable place in which to perform his work. (2) Because the defendant had constructed the roof upon which petitioner was directed to work in a dangerous and defective manner. (3) Because the rafter supporting the roof was not sufficiently strong for the purposes intended. (4) Because the splice in the.rafter was improperly and defectively constructed. (5) Because the prop under the splice was improperly, dangerously and defectively constructed. (6) Because the defendant had provided no side-braces, extending from the splice to the walls of the building, to add to the strength and security thereof. At the time of receiving his injuries, petitioner was working in a place to which he had been sent by defendant company, he did not know of the defects endangering his safety, and could not have discovered the same in the exercise of ordinary care, and was in the exercise of such care, and was free from fault.

This case in principle is controlled by Byrd v. Thompson, 146 Ga. 300 (91 S. E. 100), and cit. The court erred in overruling the general demurrer to the petition.

Judgment reversed.

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


text:
    9763.
    9764.
    Atlantic Paper & Pulp Corporation v. Johnson. Atlantic Paper & Pulp Corporation v. Owens.
    Decided January 15, 1919.
    Rehearing denied January 28, 1919.
    Description and counsel’s names as in case next preceding..
   Luke, J.

Each of these cases is controlled! by the decision this day rendered in Atlantic Paper & Pulp Corporation v. Bowen, ante, 249. The court erred in overruling the general demurrer.


text:
    9765.
    SHORES-MUELLER CO. v. FITZPATRICK et al

    Decided January 15, 1919.
    1. - The demurrer to that part of the answer in which a credit on the account was claimed, for certain boxes alleged to have been charged but not received, should have -been sustained, as no such item was included in the account attached to the contract sued upon.
    2. The ’court, erred in allowing the defendants to amend their plea by setting up an agreement at variance with the written contract sued upon, since the amendment failed to allege explicitly that the additional agreement was in writing or that it was made after the execution of the written contract.
    3. The evidence failed to show that certain credits allowed by the jury by virtue of an alleged agreement between the purchaser of the goods and one who was described as a “representative” of the plaintiff were authorized', there being no testimony tending to show that the alleged representative had authority to modify the written contract or make the' alleged agreement. The verdict returned necessarily depended upon the allowance of these credits, and was therefore unauthorized; and the court erred in overruling the motion for a new trial.
    Action on guaranty; from Warren superior court—Judge Walker. April-26, 1918.

      L. D. McGregor, for plaintiff.

      M. L. Felts, for defendant.
   Wade, C. J.

Suit was brought against Fitzpatrick and English upon a guaranty entered into by them in behalf of one Norris for the faithful performance of a contract touching the sale of merchandise and a proper accounting therefor. The petition alleged' that the balance due on the contract amounted to $805.49 principal, and the itemized statement attached thereto .as an, exhibit included divers things, but nowhere mentioned or referred to. any boxes as an item of charge against the purchaser. The original plea of the defendant alleged in the 7th paragraph that “Said W. J. Norris is charged with 297 oak special boxes by plaintiff, and said boxes were not received, and should be credited on the account of said Norris.”' Subsequently there was am additional allegation-made in an amendment to the plea, with reference to the said 297 boxes, as follows: “That at the time W. J". Norris accepted the goods purchased from Shores-Mueller Company said plaintiffs agreed to allow him to return all boxes in which goods were shipped, and to give him credit for same at twenty-five cents each. Subsequently thereto and in the fall of 1914 said W. J. Norris undertook to get the said plaintiff to accept a return of said boxes for •credit, whereupon the plaintiffs refused to accept same; that said Norris held said boxes and still holds them for credit on his said account, and defendants should be allowed a credit for the value of said boxes in the sum of $74.25.” Paragraph 7 of the original plea was demurred ‘to, upon the ground that the plaintiff was not attempting to recover of the defendants any amount whatsoever for 297 oak special boxes, as alleged in that paragraph, and therefore said paragraph should be stricken. The court erred in overruling this demurrer. The amendment _ claiming credit for the boxes under an agreement made by the plaintiff company at the time that Norris “accepted the goods”' was demurred to, upon the ground that it sought to vary the terms of the written contract sued upon, by setting up a parol • agreement in conflict therewith, and furthermore was deficient in that it failed to allege definitely the number of boxes which the defendants claimed Norris had offered, to return to the. plaintiff company. The last objection we think is without merit, since the amendment expressly alleged that Norris had offered to return' boxes aggregating in value $'74..25, at the agreed price of twenty-five cents per box; from which, by easy calculation, it could be determined how many boxes were included' in his offer. We think, however, the amendment was subject to the objection that it sought to vary the term's of the written contract, 'by setting up a parol contemporaneous agreement. While it is. not alleged explicitly that this agreement by the plaintiff company, to allow the return of all boxes in which goods were shipped and give credit therefor at twenty-five cents each, was made at or before the time the written contract was executed, and in fact the allegation is that this agreement was made “at the. time W. J. Norris accepted the goods purchased” from the plaintiff, nevertheless it is not clearly averred that the agreement in reference to the return of the boxes was made subsequently to the execution of the contract, nor is it averred that this agreement, whether made contemporaneously or subsequently, was in writing; and the burden being upon the defendants, who did not deny the existence and validity of the contract forming • the basis of' the suit, to set up a legal and sufficient reason for any modification thereof (under the familiar rule that pleadings are to be construed most strongly against the pleader), we must interpret the allegations as made in the amendment to mean that the agreement was in parol and was made at the time the contract was signed, when constructively at least the goods were “accepted” by Norris. The validity of the contract could not be attacked by inference merely. The' court therefore erred in overruling the demurrer to this amendment.

On the general grounds of the motion for a new trial, it is enough to say, that, aside from other particulars in which the evidence submitted in behalf of the .defendant is somewhat unsatisfactory, the verdict was necessarily arrived at by the allowance of certain credits claimed by Norris for alleged overcharges, freights, and breakage, by virtue of an understanding or compromise agreement which he testified was entered into between him and “a representative” of the plaintiff company, who came to see him in reference -to his indebtedness to the plaintiff, and canvassed with him matters in dispute; and there was positive proof in behalf of the plaintiff company that “no agent, representative, officer, member or any one else authorized to act for Shores-Mueller ■ Company, ever orally or in any [way] except'by written statement or instrument entered into any contrabt or agreement with W. J. Norris or either of the defendants C. R. Fitzpatrick or W. E. English, and no one was ever authorized to have any oral conversation with said W. J. Norris, C. R. Fitzpatrick, or W. E. English prior to the time that the demand .was made upon them for the payment of the balance due the Shores-Mueller Company.” Norris testified as to a definite agreement between himself and a “representative” of the plaintiff company, whose name he did not remember, as to the amount of claims for breakage, etc:,' to be allowed, but no testimony was presented to show that this “represéntative” (if indeed he was in fact a representative of the plaintiff company) ever presented any credentials to establish his authority to even colled from Norris, and there is an entire absence of testimony showing authority on his part to make deductions or allowances or any agreement which might have the effect of modifying the written contract, and no evidence showing or tending to show that the alleged agreements had with this, representative were ever in fact ratified thereafter by the plaintiff company. It is clear, therefore, that the verdict was not authorized by the evidence, for at least some of the items deducted by the jury from the total claim of the plaintiff compkny were not established by proof as proper credits on the account.

It is true that there was testimony from Norris to the effect that he had received a letter from the plaintiff company which had been lost or destroyed, in which they offered, in reference “to the boxes, ... to take them back at certain amount,” which “amount” he had forgotten, but which he testified made due the sum “set out here,” and further, that when he had a sufficient amount of boxes to make a shipment to the plaintiff, the plaintiff declined to take them and he had some of these boxes yet. This testimony, while apparently tending to establish that the alleged agreement to accept the return of certain boxes was made subsequently to the execution of the written contract, and was likewise a written agreement, does not make it appear how many boxes the plaintiff so agreed to accept, or even the price (except by inference) to be paid therefor. While the evidence was not apparently objected to, and was therefore before the jury for what it may have been worth, considering its indefinite character, this fact does not remove the error committed by the trial judge in overruling the demurrer to the answer, which failed to show precisely whether the agreement pleaded touching the return of the boxes was in writing or in parol and made before, at the time of, or after the execution of the contract.

For the reasons suggested above we think the trial judge erred in overruling the demurrers to the answer and the amended answer of the defendants, and in thereafter overruling the motion for a new trial. It is not necessary to pass upon questions raised by the record which are not dealt with above.

Judgment reversed.

Jenkins and Luke, JJ., concur.


text:
    9766,
    Wise v. Mohawk Rubber Company.
    Decided January 15, 1919.
    Complaint; from city court of Sandersville—Judge Jordan. April 23, 1918.

      W. M. Goodwin, for plaintiff in error.

      Evans & Evans, contra.
   Jenkins, J.

1. Where one holds another out as his special agent, the principal is bound by the agent’s apparent authority to do the particular thing thus authorized, as well as to d'o any and all things usual and necessary, and to employ all usual and necessary means that may be reasonably required, in the due, proper, and ordinary performance of the particular purpose of the appointment. Civil Code (1910), § 3595; Bass Co. v. Granite City Co., 119 Ga. 124 (45 S. E. 980) ; Raleigh &c. Railroad Co. v. Pullman Co., 122 Ga. 700, 705, (50 S .E. 1008). But a person dealing with such an agent takes the risk as to any extension of the agent’s authority beyond that which is thus authorized, and the burden rests upon him to show authority from the principal for any acts of the agent other than such usual and ordinary acts as are reasonably necessary to a due performance of the particular purpose of the agency. Napier v. Strong, 19 Ga. App. 401 (3), 408 (91 S. E. 579).

2. It not being shown that the collateral contract made by the purchaser with the traveling salesman was a usual and necessary incident to the sale, or that the salesman had authority to make such a contract, it had no binding effect upon the principal; nor would the .fact that the seller, after the buyer had apprised him of such unauthorized agreement, proceeded to sell and furnish to the buyer another consignment of the articles of merchandise, have the effect of ratifying the terms of the original unauthorized agreement, it appearing also that at the time the subsequent sale was made Jhe seller repudiated the agreement in question, and shipped the additional articles without any agreement or understanding, expressed or implied, that the repudiated promise of his agent would be recognized.

Judgment affirmed.

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


text:
    9781, 9782.
    Heath v. Sandersville Railroad Company; and vice versa.

   Wade, C. J.

1. In an action against a common carrier for failure to safely transport and deliver live stock committed to it in good order by a shipper, particular acts of negligence need not be alleged, and when alleged may be treated as surplusage. Louisville & Nashville R. Co. v. Warfield, 129 Ga. 473 (59 S. E. 234) ; Louisville & Nashville R. Co. v. McHan, 144 Ga. 683 (87 S. E. 889) ; Southern Express Co. v. Bailey, 7 Ga. App. 331 (66 S. E. 960); Central of Georgia Ry. Co. v. Stamps, 17 Ga. App. 453 (87 S. E. 702).

2. “When a carrier .fails to deliver the goods intrusted to his care, or delivers them in a damaged condition, no excuse avails him, unless it . was occasioned by the act of God, the public enemy, an inherent vice or natural deterioration of thexobject carried, or, in case of live stock, the vieiousness of the animals, or that he is excused by special contract made with the shipper, by statute, or by negligence of the' shipper.” Louisville & Nashville R. Co. v. Warfield, supra. .

3. This being an intrastate shipment (the principle here announced being apparently not applicable to interstate shipments: G. F. & A. Ry. v. Blish Milling Co., 141 U. S. 191, 36 Sup. Ct. 541, 60 L. ed. 948), a stipulation in the contract of affreightment for the transportation of live stock, that before the animals are removed from the place of destination and mingled with other animals, written notice of claim for damage shall be given to the agent of the carrier, may be waived by the carrier. Louisville & Nashville R. Co. v. Tharpe, 11 Ga. App. 465 (3) (75 S. E. 677). “The agent was not bound to recognize an oral demand. But if lie did so, making no objection to it on the ground that it was not in writing, . . it was sufficient.” Hill v. Telegraph Co., 85 Ga. 425, 430 (11 S. E. 874, 21 Am. St. R.166). The allegations of the petition under consideration were sufficient to show that the agent of the delivering carrier had oral-notice of the damaged condition of the cattle, and that written notice was waived.

4. The allegation that notice of the damaged condition of the cattle was given to the agent of the delivering carrier was not subject to special .demurrer raising the objection that his name was not set forth in the petition; See, in this connection, Augusta Ry. Co. v. Andrews, 92 Ga. 706, 710, 712 (19 S. E. 713) ; Pierce v. Seaboard Air-Line Ry., 122 Ga. 664 (50 S. E. 468) ; Atlantic Coast Line R. Co. v. Burroughs, 20 Ga. App. 197 (92 S. E. 1010); Haynie v. Central of Georgia Ry. Co., 20 Ga. App. 599 (93 S. E. 258).

5. Prior to-the enactment of the Georgia law (Acts 1906, p. 102) relative to intrastate shipments in conformity to what is known as the Carmack amendment to the Hepburn interstate-commerce act (Act June 29, 1906, c. 3591, 34 Stat. 595, § 7, par. 11, 12; U. S. Comp. St. §§ 8604a, 8604aa), it was the rule that a common carrier was not bound to issue a bill of lading for transportation of freight beyond its own terminus, and if it did so, it might stipulate, as a condition to the undertaking, that its liability should extend only to injuries occurring on its own line (Central R. Co. v. Avant, 80 Ga. 195, 5 S. E. 78; Richmond &c. R. Co. v. Shomo, 90 Ga. 496, 500, 16 S. E. 220; Kavanaugh v. Southern Ry. Co., 120 Ga. 62 (2), 65, 47 S. E. 526,1 Ann. Cas. 705) ; but since the passage of that act (codified as section 2777 of the Civil Code of- 1910) the initial carrier is liable for loss occasioned anywhere en route, whether on its own lines ,or not, where it voluntarily receives the shipment, notwithstanding an agreement or stipulation in a bill of lading limiting liability to loss, damage, or injury occurring on its own lines. See in this connection, Atlanta d West Point R. Co. v. Fairburn Marble Co., 145 Ga. 708 (89 S. E. 817).

Decided January 15, 1919.

Action for damages; from city court of Sandersville—Judge Jordan. April 33, 1918.

Evans & Evans, for plaintiff. .

A. B. Lovett, J. J. Harris, for defendant.

6. Applying the foregoing rulings, the petition as amended was not subject to any of the demurrers interposed, and the cross-bill of exceptions . raising the several points made by the demurrers is affirmed.

7. The special live-stock contract having been signed by both the shipper and the carrier, and this being an intrastate shipment, the stipulation in the contract of affreightment requiring that written notice of a claim for damages be given before the animals were removed or mingled with other stock is reasonable and valid, and is a condition precedent to the right of recovery. Southern Ry. Co. v. Adams, 115 Ga. 705 (42 S. E. 35); Southern Ry. Co. v. Tollerson, 129 Ga. 647; (59 S. E. 799); Roberts v. Ga. So. &c. Ry. Co., 10 Ga. App. 100 (72 S. E. 942); Mitchell v. A. C. L. R. Co., 15 Ga. App. 797 (84 S. E. 227). Such contract stipulation, being a condition precedent to a recovery, must. not only be averred, but proved; and although it is held above (paragraph 3) that the averments as to notice were sufficient to meet the demurrer, there is a total lack of proof that any notice, either oral or written, was given before the stock were removed from the car; nor was there any proof whatever to support' a waiver of_ written notice as set out in the petition. The nonsuit was therefore proper.

Judgment affirmed on hoth hills of exceptions.

Jenkins and Luke, JJ. concur.


text:
    9783.
    CRAPP v. STATE OF GEORGIA.
    Decided January 15, 1919.
    1. This case has been transferred back to this court by the Supreme Court; under the ruling of that court that the assignments of error involving constitutional grounds were too indefinite to be considered.
    2. The evidence demanded a verdict in favor of the plaintiff; and the special ground of the motion for a new trial, assigning error upon the court’s refusal to charge the jury as requested, is without merit.
    Condemnation under liquor law; from city court of Sylvester— Judge Monk. February 11, 1918.
    This was a proceeding instituted by the State of Georgia, through the solicitor of the city court of Sylvester, under the provisions of the act of 1917 (Ga. L. 1917, Ex. Sess., p. 16), and was main-' tained for the purpose of condemning and selling an automobile, which it is alleged was owned and used by the defendant in conveying spirituous, vinous, malted, fermented, and intoxicating liquors on the public roads of Worth county'. The defendant filed a demurrer to the petition and sought therein to raise certain questions involving the constitutionality of the act. The court overruled the demurrer, and the exceptions to that,ruling have been disposed of by the Supreme Court See Crapp v. State, 148 Ga. 150 (95 S. E. 993).
    Upon the trial of the case the defendant testified: “The morning I was arrested I was on my way to Dawson. I had people living ih Terrell county and was going up there to—I had nearly a quart of whisky with me, and afterwards plead guilty for being drunk on the public highway and having whisky in my possession. The whisky was in my grip. It was not my purpose to carry the whisky to Dawson. I only had it along with me for my own use. I was not hauling it for the purpose of delivering it to any place or to any person. I was not making the trip to carry the whisky anywhere, but had it along with me tó use myself. I got this whisky the evening before in Sylvester from a colorad man, went back home in this automobile with it that night, and, after spending the night at home, took it along with me the naft morning, and on my way to Dawson and Terrell county I was arrested with it and my ear was taken charge of by the sheriff. Bought one quart and a pint, and had drunk the pint a-nd part of the quart, and had the balance with me on my way up to Terrell county, where my .people live. I would have taken this whisky to Dawson with me if I had not been interrupted by the officers.” The verdict was in favor of the plaintiff, and the defendant made a motion for a new trial, the only ground of which, other than the general grounds, was that the court erred in refusing a request to charge the jury as follows: “If the evidence discloses that the defendant in this case was transporting whisky from one point to another, and that he was using his car for the purpose of transporting or conveying the whisky, then you should find against the defendant. On the other hand, if you should find, from the evidence, that the defendant had some whisky with him, and that the transportation of it on the car was merely incidental to the trip, that it was primarily his purpose to convey the whisky, but that he took the whisky along with him for his own use, and that it was not his intention to carry the whisky to some other point, then you should find in favor of the defendant in this case.” The motion for a new trial having been overruled, the defendant excepted.
    G. R. Nottingham, L. D. Passmore, for plaintiff in error.

      Clyde Forehand, solicitor, contra.
   Jenkins, J.

(After stating the foregoing facts.) In our opinion, the request to charge does not contain a correct statement of the explicit» terms of the law, nor does it conform to what is its plainly expressed purpose and intention. It is insisted by counsel for the defendant that, construing these portions of the act in connection with the title, it must be seen that it was not the intention of the legislature to condemn a vehicle when the carrying of whisky was merely incidental, and that the law condemns the vehicle only when it is being used for the- primary purpose of transporting or conveying liquors. In other words, if the vehicle was used for the primary purpose- of conveying or transporting liquors, the provisions of the act would be operative; but if the liquors were thus being merely incidentally transported, and only because the vehicle was at the time being used for another and different purpose; then the penalty would not obtain. So much of the title of the act referred to as is material to this case is as follows: “An act to a“mend and supplement the prohibition laws of this State; to make it unlawful to transport, .¿hip, or deliver in this State, whether from without or from within the State, any spirituous, vinous, malt, or fermented liquors, or other intoxicating liquors or beverages, except aloohol and wine under certain restrictions and limitations; . . to provide for the seizure, condemnation, and sale of property used in violation of this act, and for the disposition of 'the funds arising from such sale.” Section 1 of the act provides that “It shall be unlawful for any common carrier, corporation, firm, or individual to transport, ship or carry, by any means whatsoever, with or without hire, or cause the same to be done, from -any point without this State to any point within this State, or from place .to place within this State, whether intended for personal use or otherwise,” any of the liquors or beverages therein enumerated, save as thereinafter excepted. Section 20 of the act provides that “All vehicles and conveyances of every kind and description which are used on any of the public roads or private ways of this State, and all boats and vessels of every kind and description which are used in any of the waters of this State in conveying any liquors or beverages, the sale or possession of which is prohibited by law, shall be seized by any sheriff or other arresting officer, who shall report the same _ to the solicitor of the county, city or superior court having jurisdiction in the county where the seizure was made, whose duty it shall be within ten days from the time he received said notice to ■ institute condemnation proceedings in said court by petition, a copy of which shall be served upon the owner or lessee if known, and if the owner or lessee is unknown notice of such proceedings shall be published Once a week for two weeks in the newspaper in which the sheriff’s advertisements are published. If no defense is filed within thirty days from the filing of the petition, judgment by default shall be entered by the court at chambers, otherwise the case shall proceed as other civil cases in said court. Should it appear upon the trial of the ease that said vehicle, conveyance, boat or vessel was so used with the knowledge of the owner or lessee, the same shall be sold by order of the court' after such advertisement as the court may direct.”

Thus, it would seem that when, with the knowledge of the owner, any such vehicle is used on any of the public roads or private ways of this State in conveying any liquors or beverages, the sale or possession of which is prohibited by law, the vehicle or conveyance is subject to seizure and sale in the manner prescribed, regardless of what might have been the purpose and intent of the owner or operator of the vehicle at the time it was so employed. Under the plain and explicit terms .of the act itself, the fact that the liquors or beverages thus conveyed were for the personal use of the owner or operator of the vehicle would not alter the rule, but the provision is that the mere use of a vehicle wherein and whereby any of the enumerated liquors are conveyed with the knowledge of the owner renders the vehicle subject to seizure and sale, regardless of what may have been the reason in thus using the vehicle, or what may have been the purpose as to the use or disposition of the liquors. To hold otherwise would entirely emasculate these provisions of the act, and in practice would defeat every purpose for which they were enacted.

Judgment affirmed.

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


text:
    9786.
    Lowenstein v. Johnston.
    Decided January 15, 1919.

    Rehearing denied January 28, 1919.
    Certioiari; from Fulton superior court—Judge Bell. March 26 1918.
   Jenkins, J.

1. The testimony was sufficient to authorize the finding that a notice of dissolution of partnership, such as would relieve the defendant from liability on the claim sued on, had been sent to and was received by the plaintiff. While the mailing of such a notice, properly stamped and directéd, raises a presumption only of its receipt (Bush v. McCarty Co., 127 Ga. 308, 311, 312, 56 S. E. 430, 9 Ann. Cas. 240), and while this presumption may be entirely overcome by the undisputed evidence of the addressee that the letter' was never received (Hamilton v. Stewart, 108 Ga. 472, 476, 34 S. E. 123; Cassel v. Randall, 10 Ga. App. 587, 73 S. E. 858), still, in this case, proof to the effect that the plaintiff had subsequently proceeded against the other partner in bankruptcy by proving the claim in dispute os an individual liability of that partner for goods “sold and delivered to the bankrupt [that is the other partner] at his special instance and request,” together with other corroborative testimony as to the conduct of the plaintiff, tending to indicate such notice, furnished sufficient- corroboration to sustain the finding in accordance with the presumption raised by the defendant’s testimony as to the sending of the notice. Strauss v. Pearlman, 15 Ga. App. 86, 87 (82 S. E. 578); Parker v. Southern Ruralist Co., 15 Ga. App. 334, 337 (83 S. E. 158).

2. A petition for certiorari should “plainly and distinctly set forth the error complained of”. Civil Code (1910), § 5183; Callaway v. Atlanta, 6 Ga. App. 354 (64 S. E. 1105). The code provides that “No ground of error shall be insisted upon, on the hearing, which is not distinctly set forth in the petition” (Civil Code of 1910, § 5199), and questions not referred to in the petition'can not be considered by either the superior court or by this court. Fouché v. Morris, 112 Ga. 143 (37 S. E. 182) ; Perry v. Brunswick Railway Co., 119 Ga. 819 (47 S. E. 172). Thus, the assignment of error that, “after the introduction of the evidence as related heretofore the court took this case under advisement, and did thereafter render judgment in favor of the defendant and against the plaintiff without announcing the said judgment in open court as provided by section 224 [Acts 1913, p. 167, sec. 42 (a)] of the act creating the municipal court of Atlanta,” does not present the question whether the court failed to notify the parties or their counsel of the time when such judgment would be rendered; and since the answer of the trial judge does not verify the assignment as actually made, but, to the contrary, says that he did announce said judgment in open court, this assignment of error can not be considered. Shirling v. Kennon, 119 Ga. 501 (46 8. E. 630) ; Stephens v. Barnes, 11 Ga: App. 491 (75 8. E. 827). See also, in this connection, Hays v. Philadelphia &c. Railroad Co., 99 Md. 413 (58 Atl. 439).

■Judgment affirmed.

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

C. N. Anderson, W. O. Slate, P. B. D’Orr, for plaintiff in error. E. M. & G. F. Mitchell, contra.


text:
    9789.
    BACON v. DOUGLAS.
    Decided January 15, 1919.
    1. The motion to dismiss the bill of exceptions is without merit. See Morse v. Turner, 20 Ga. App. 108 (92 S. E. 767).
    2. Under the provisions of the act creating the municipal court of Atlanta, the chief judge of that court, or any other judge acting for the court, may enter judgment in all cases of default, without any call of the docket, on or after the Mopday on which the action in default is returnable.
    Certiorari; from Fulton superior court—Judge Bell. April 1, 1918.
    Exception is taken to a judgment of the superior court, overruling a certiorari in a case from the municipal court of Atlanta. The petitioner in the certiorari proceeding shows that suit by summons was instituted against him in the municipal court of Atlanta, on an open account, that the account was not sworn to, that the service upon him was not personal, and that the judge of the municipal court proceeded to enter up default judgment against him without first having made an entry of default on the docket, or calling the case for trial and declaring the case in default, and without requiring proof of any kind on the part of plaintiff as to the correctness of the account sued on. The petitioner says that under these facts the entering of the judgment was contrary to law. The answer of the municipal judge to the writ of certiorari is in part as follows: "Answering paragraph 3 of said petition, your respondent says that at the time said judgment was rendered he had before him the original suit in said case, showing'that service was perfected on the defendant in the manner pointed out by section 36-c of the act creating the municipal court of Atlanta, and judgment was rendered in said case by authority in me vested by section 46 of the act’ creating the said court, that there was no proof before me other than the original petition of the plaintiff and statement of the plaintiff’s claim against the defendant, which was not denied by answer or appearance of the defendant, and return of the officer showing said statement of claim and process had been duly served, as before set forth.”

      McClelland & McClelland, for plaintiff in error.

      E. L. Douglas, contra.
   Jenkins, J.

(After stating the foregoing facts.) The act of the General Assembly of 1913 (Ga. L. 1913, p. 145) establishing the municipal court of Atlanta, provides in part as follows: “ Section 1. Be it enacted . . . that, effective January first, 1914, all Justices Courts and the office of Justice of the Peace and of Notary Public Ex-Officio Justice of the Peace in the City of Atlanta, Georgia, be and the same are hereby abolished, and in lieu thereof, the Municipal Court of Atlanta is hereby created and established, with the civil and criminal jurisdiction hereinafter provided.” Section 36 provides for the commencement of actions “by summons as now provided for in Justice of the Peace Courts,” and proceeds to set forth specifically and in detail how service on the defendant, other than personal service, shall be perfected. Section 37 provides that “suits in this court, except as herein provided or as may be provided by rules of the court, shall proceed as suits or actions in Justices Courts, under the practice thereof existing under the laws relating thereto, and shall be triable at 'the first term.” Section 46 of the act provides that “in all cases of default, the Chief Judge of said court, or any other Judge acting therefor, may enter judgment without any qall of the docket on or after the Monday on which the action in default is returnable.” It is the contention of counsel for the plaintiff in error, that since the municipal court of Atlanta was created for the purpose of taking the place of justice’s courts in the city of Atlanta, it does not, so far as the necessity for pleadings is concerned, differ from the justice’s courts (see Shippey v. Owens, 17 Ga. App. 127 (86 S. E. 407) ); also that the case is controlled absolutely by section 4730 of the Civil Code of 1910, which provides as follows: “"When suit is brought upon an open account in a justice court, such account may be proved by the written affidavit of the plaintiff, and, when so proved, shall be received in evidence as if proved in open court; nevertheless, if the defendant will file his affidavit denying the justice and fairness of the whole or any part of such account, the court shall not give judgment in favor of the plaintiff for that part of the account so denied and controverted, unless supported by other proof. In all cases when such' affidavit to prove the account is made, there shall be personal service upon the defendant before judgment is given for the plaintiff under the provisions of this section. In all cases where a counter affidavit is filed by the defendant, and the plaintiff is not present, it shall be the duty of the justice of the peace to continue such case until-the next term of said court. Nothing in this section contained shall apply to suits against administrators and executors on contracts of their deceased testators arid intestates.” Counsel also cite Peeples v. Sethness Co., 119 Ga. 777 (47 S. E. 170), Sims v. Thomas, 18 Ga. App. 212 (89 S. E. 163), and Sapp v. Mathis, 12 Ga. App. 273 (77 S. E. 102), where it is in substance held that a suit in a justice’s court on a verified account, with personal service, entitles the plaintiff to -a judgment without further proof, unless a verified defense is filed; and that even though the account be not verified, if the service is" personal, the failure of the' defend-. ant to make any defense amounts to an admission of the correctness of the account, and entitles the plaintiff to a judgment on the call of the docket, and without the case being assigned for trial. The theory, however, on which the municipal-court judge entered his judgment by default upon the unverified account in the absence of personal service, and without requiring proof of its correctness, is based upon the provisions of section 46 of the act as above quoted. The validity'-of this act is not in question, and -under it no entry of default, or call of the docket is required, but the provision is- that “in all cases of default” the judge “may enter judgment without any call of the docket on or after the Monday on which the action in default is returnable.” Do the words, “in all cases,” authorize the judge to thus “enter judgment” where the service, though legal, is not personal? We concur in the opinion held by the judge who entered the judgment, and by the superior court judge, that they do. While the act creating the municipal court establishes the practice of that court to be the same as that which obtains in justice’s -courts, except as may therein be otherwise provided/here .it seems that there is a specific exception to the rules of such uniform, practice and procedure. In justice’s courts it is only in some cases that such a default judgment without proof may be entered; while in this municipal court such power is, under the terms of the act, vested in it in all cases.

Judgment affirmed.

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


text:
    9796.
    Keene v. Kennedy.
    Decided January 15, 1919.
    Action for damages; from Laurens superior court—Judge Kent. April 25, 1918.

      R. Earl Gamp, for plaintiff.

      Faircloth & Claxton, for defendant.
   Jenkins, J.

Keene brought complaint in tort against Kennedy, alleging a ■

wrongful personal injury inflicted upon the tenant of the petitioner, whereby special damage resulted to the plaintiff. Upon the conclusion of the testimony the judge granted a nonsuit. The evidence as to the amount of the alleged loss thus incurred by the plaintiff was not sufficiently definite or certain to authorize any verdict in his favor for special damages; while the testimony clearly indicates that the plaintiff in no way uáed or attempted to use the means at his disposal whereby he might have reduced or satisfied the damages claimed.

Judgment affirmed.

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


text:
    9839.
    Daue v. Royal Mining and Milling Company.
    Decided January 15, 1919.
    Complaint; from Haralson superior court—Judge Bartlett. April 15, 1918.

      Griffith & Matthews, Hutchins & McBride, for plaintiff in error.

      Price Edwards, Lloyd Thomas, contra.,
   Wade, C. J.

There was evidence to support the verd'iet, and none of the numerous special grounds of the motion for a new trial show such harmful error as to require a reversal.

-Judgment affirmed.

Jenkins and Luke, J.J., concur.


text:
    9840.
    SHAPLEIGH HARDWARE CO. v. McCOY & SON.
    One who tacitly permits himself to be held out to the public as a partner, though he in fact has no interest in the partnership, will be estopped from denying his connection with the firm, and will be bound, where the opposite party was misled by the putative status and acted thereon. Civil Code (1910), § 3157; Bowie v. Maddox, 29 Ga. 285 (74 Am. D. 61) ; American Cotton College v. Newspaper Union, 138 Ga. 147 (4) (74 S.E. 1084); Mims v. Brook, 3 Ga. App. 247 (59 S. E. 711) ; Meinhard v. Bedingfield Co., 4 Ga. App. 176 (61 S. E. 34). Thus, where a pei'son knows that his name is being used as that of a member of a firm, and that he is being held out as a partner in a particular business, he is not only under the duty to prohibit such use, but it is also incumbent upon him to take such steps as an ordinarily prudent person would take in the circumstances to notify the public, as well as individuals to whom he knows that he has been so held out as a partner, that he is not a. partner. 30 Cye. 393, 394.
    Decided January 15, 1919.
    Complaint; from city court of Millen—Judge Dekle. April 20, 1918.

      William Woodrum, for plaintiff.

      James A. Dixon, for defendants.
   Jenkins, J.

' Suit on account for goods furnished was brought against McCoy & Son, as a partnership composed of E. L. McCoy and B. L. McCoy. B. L. McCoy filed no answer. R. L. McCoy filed ’an answer wherein he denied indebtedness, and set up that there was no such partnership. On the trial of the case the jury returned a verdict against B. L. McCoy, and in favor of R. L. McCoy. The plaintiff made a motion for new trial on the usual general grounds only, which was overruled, and exception was taken. ■

While the evidence adduced upon the trial of the case was sufficient to authorize a finding that the defendant E. L. McCoy had no interest in the partnership, he admitted and testified that he learned in January, 1916, that his son, B. L. McCoy, was using his name and holding him out as a member of the firm of McCoy & Son, and .that he burned all the bill-heads he could find with the name of McCoy & Son on them, and instructed his son not to use his name. He further testified, however: “I never made any effort to publish in any newspaper that I was not a member of that firm. I never made any effort to find out who were the creditors of the'firm. . . I never made any effort to notify any one.” The traveling salesman of the plaintiff testified: “Before I sold these goods to McCoy & Son, I saw a sign on the front of their place, there, McCoy & Son. . . I have never received any notice that E. L. McCoy was not a partner. I never did receive any written notice of a dissolution of the firm of McCoy & Son. I sold the goods upon the faith of E. L. McCoy being a partner. . . As soon as I saw this dissolution notice in the paper, I wired the company—we had a shipment ready for them then—I wired the company to hold shipment back; they did and paid the freight back on it to St. Louis.” This testimony in behalf of the plaintiff was undisputed. The evidence does show that the following notice was published in the official organ of the county by the defendant, B. L. McCoy: “Dissolution notice. Notice is hereby given that'the firm of McCoy & Son, heretofore engaged in the business of General Automobile Service Station and Electrical Supplies and Wiring, in the City of Millen, State of Georgia, is this day dissolved by mutual consent, R. L. McCoy retiring therefrom. The business will be conducted in the same place as the Eord 'Service Station, with B. L. McCoy, Manager, who will settle all firm liabilities and receipt for all debts due the firm. This the first day of June, 1916. (Signed) R. L. McCoy, B. L. McCoy.” The notice thus published is dated June 1, 1916, but the evidence shows that the goods furnished to defendants, for the purchase-price of which the present suit was instituted, were furnished during the months of March, April, and May, 1916.

Applying to these facts the principle of law stated in the,headnote, we think the evidence demanded a finding in favor of the plaintiff against the defendant R. L. McCoy, and that the court therefore erred in overruling the motion for a new trial.

Judgment reversedj

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


text:
    9845.
    Christian v. Matthews.
    Decided January 15, 1919.
    Trover; from DeKalb superior court—Judge Smith. May 6 1918.

      Thomas B. Brown, for plaintiff in error.

      Hewlett & Dennis, contra.
   Jenkins, J.

The verdict is amply supported by the evidence, and the charge of the court fully and fair-ly covered every issue made by the testimony and the pleadings. The failure to give certain instructions to the jury, as complained of, even had there been a timely request, would not have been error. Hill v. Ludden & Bates, 113 Ga. 320 (3) (38 S. E. 752).

Judgment affirmed.

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


text:
    9874, 9875.
    Gainesville Buggy & Wagon Co. v. Morrow et dlj and vice versa.

    Decided January 15, 1919.
    Complaint; from city court of Hall county—H. H. Perry, judge pro hac vice. May 1, 1918.

      J. O. Adams, Ed,. Quillan, C. R. Faulkner, for plaintiff.

      W. N. Oliver, W. B. Sloan, for defendants.
   Luke, J.

1. As to the case for -which he is chosen, a judge pro hac vice has all the powers and duties which, but for the disqualification, would devolve upon the regular presiding judge of the court, not only with respect to the jury trial of the case, but also with respect to matters of review and appeal, and to all other matters therein subsequent to the verdict and judgment. Civil Code (1910), § 4856; Henderson v. Pope, 39 Ga. 361; Clayton v. Wallace, 41 Ga. 268.

2. All applications for a new trial, except in extraordinary cases, must be made during the term at which the trial was had and' within the time prescribed by law. Civil Code (1910), § 6089. But the clerk is not required to enter such motions upon the minutes of the court, or to treat them otherwise than as pleadings regularly filed in vacation. Civil Code (1910), § 6080. The presentation and approval of such a motion, together with the rule nisi issued thereon, is an ex parte proceeding. There is no statute prescribing that such steps shall be taken while the trial judge is upon the bench presiding in the same or another case; nor is there any reason known to the law why a motion for a new trial may not be presented, approved, served, and filed, or why any one or more of such steps may not be taken, during a temporary recess of the court, or away from the court-house as well as at it. King v. Sears, 91 Ga. 577 (18 S. E. 830).

3. In view of what is said above, the refusal to dismiss the motion for a new trial was not error. The decision in the case of Norris v. Pollard, 75 Ga. 358 (3), is not in, point here. It does not relate to a case in which a judge pro hac vice presided. Nor is the case of Pendergrass v. Duke, 140 Ga. 550 (79 S. E. 129), in point, for in that case the judge who was presiding at the time the motion for a new trial whs presented, and to whom the motion should have been presented, had also presided at the time the verdict therein complained of was received, and had actually entered the final decree in the case, and his qualification to entertain the motion for a new trial and to issue the rule nisi thereon was unquestioned.

4. The evidence authorized the verdict, which has the approval of the trial judge. The charge of the court was, as a whole, full and fair, and for no reason assigned does this court see error requiring a reversal of the judgment overruling the motion for a new trial.

Judgment affirmed on both Hie main 'bill of exceptions and the cross-bill.

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


text:
    9879.
    Clark v. Jackson.
    Decided January 15, 1919.
    Exceptions -to auditor’s report; from city court of Kichmond county—Judge Black. May 2, 1918.

      William H. Fleming, for plaintiff in error.

      M. G. Barwick, A. R. Williamson, contra.
   Wade, C. J.

1. Taking into consideration the nature and form of the exceptions to the auditor’s report which were presented hy the defendant in the lower court, in the light of the particular facts of this case there is no merit in the various assignments of error, including that relating to the failure of the trial judge to pass upon certain exceptions denominated exceptions of law.

2. The errors appearing in the judgment as finally entered' up, being obviously typographical, may be corrected by proper amendment. Civil Code (1910), § 5697.

Judgment affirmed.

Jenkins and Luke, JJ., concur.