author: Jenkins, J.

text:
    7188.
    American Sewer Pipe Company v. Mathews.
   Jenkins, J.

1. Where in a written contract of employment it is stipulated that the “arrangement may be terminated at the end of any month' by either party giving written notice to the other party,” the stipulation as to notice is not complied with on the part of the employer by his sending to the employee a letter in which the making of a new and different contract with him is clearly contemplated, and in which the employer states that in his opinion “it would be advisable to proceed on the old contract for thirty days longer,” the import of this communication being* thus clearly predicated upon the making of the new arrangement.

2. Where on a later date the employer notifies the employee that the intention of the former notice was to terminate the contract, but the employer afterwards continues to treat the recipient of the communication as his employee and to hold him out as such to others, and, with the knowledge and under the direction of the employer, the employee continues to perform his duties as such, and the employer continues to accept the benefit of the services so rendered, the latter notice can not, under the circumstances, be held to be binding upon the employee.

3. In order that an existing contract shall be discharged by the making of a new and inconsistent • agreement by the parties thereto, the new contract must be so complete in all of its terms as to bind each of the contracting parties.

Decided February 1, 1917.

Attachment; from city court of Macon—Judge Mathews. December 22, 1915.

Hardeman, Jones, Parle & Johnston, for plaintiff in error.

Miller & J ones, P. F. Brocle, contra.

4. There was no error in admitting the testimony complained of in the ninth ground of the motion for a new trial, wherein a witness for the plaintiff testified that the defendant employer denied the existence of such a new and inconsistent contract. .. ,

5. Prior to the legal termination of such a contract the employer was liable, according to its provisions, for expenses incurred by the employee in the taking of orders, even though the employee may have been orally informed by the employer that his territory was so disposed of to another as inferentially to prevent the filling of such orders; it also appearing that after such oral notice the employer still continued to direct the employee in the further taking of orders by him, and part, at least, of such expenses being thus specifically authorized, and the bill of exceptions not clearly pointing out the alleged unauthorized expenses complained of as allowed. Smith v. Georgia Loan, Savings & Banking Co., 113 Ga. 975 (39 S. E. 410) ; Higgins v. Cherokee Railroad, 73 Ga. 149; Baxter v. Camp, 126 Ga. 354 (54 S. E. 1036).

6. In the motion for a new trial it is complained that the judge erred in not construing the letters in evidence in which, it was contended by the defendant, a notice of the termination of the contract was given. It appears that there were in' evidence about eighty letters between the plaintiff and the defendant, introduced as throwing light upon the alleged termination of this contract, of which number approximately a half were written by the defendant. Such a motion is not sufficiently specific when it fails to' show which of the letters or what portions thereof it is contended should have been so construed, although it may clearly show in what manner the court left to the jury the construction complained of. Kehoe v. Hanley, 95 Ga. 321 (22 S. E. 539); Smith v. Georgia Warehouse Co., 99 Ga. 131 (24 S. E. 875).

7. The jury having found against the contention of the defendant as to the alleged termination of the contract, there was no harmful error in the charge complained of in the tenth ground of the motion for a new trial.

8. The verdict was authorized by the evidence, and, the rules of law having been properly submitted in the charge of the court, the motion for new trial was properly refused.

Judgment affirmed.

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


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    7318.
    Council, receiver, v. Stevens.
    Decided February 1, 1917.
    Levy and claim; from city court of Leesburg—Judge Martin. January 17, 1916.
    The Bank of Southwestern Georgia filed a claim to property levied on under an execution against Robinson, issued on a judgment of the city court of Leesburg in favor of M. J. Stevens; and on the trial of the claim case at the July .term, 1915, of that court the judge, on motion of the claimant’s attorneys, after the introduction of evidence by the plaintiff, passed an order as follows: “On motion of claimant’s attorneys the within claim is hereby withdrawn at the claimant’s cost.” A second claim to the property was interposed on August 14, 1915, by the receiver of the bank; and in that case M. J. Stevens, at the .October term, 1915, of the city court, filed a plea as follows: “And now comes the defendant and prays judgment of the said petition, because he shows, that at the July term, 1915, of said court, there was a cause pending between the same parties on the same cause of action, with the Bank of Southwestern Georgia claimant to the same property, and, said claimant having dismissed or withdrawn his claim and now having filed the present suit in the same court on the same cause of action, without having paid the court costs in said former suit or having filed an affidavit of its inability to do so on account of poverty, the present cause is barred and should be dismissed. . .
    Wherefore he prays judgment of said petition and that the same be quashed.” The claimant .filed a demurrer on the following grounds: 1. The plea as filed does not set up facts sufficient in law. 2. The plea is not sufficient in law to raise an issue, and is not in form provided by law. 3. A claimant is not required in law to pay the cost in a claim case that has been withdrawn by the claimant, before filing a second claim. 4. A plea in abatement to a claim can not be filed, under the law, where the claimant on his own motion withdraws the claim and files a second claim without payment of the costs of the first claim. 5. The plea does not set out the amount of costs due and to whom payable when the claim was dismissed by claimant, and that the parties to that claim are the same as in the claim to which the plea is filed, and that the property and the issues are the same. The demurrer was overruled, except as to the 5th ground, which later was met by amendments stating the items of costs due, etc. The demurrer was repeated as to the plea as amended, and was overruled; and, there being no traverse to the plea, and it being, agreed that the judge should determine the case on the pleadings, the court passed an order sustaining the plea and dismissing the claim. A motion to set aside this judgment was filed by the claimant at the same term of the court, and was overruled; and the claimant excepted, assigning error on the overruling of the demurrers, and on the judgment sustaining the plea and dismissing the claim, etc.
   Bloodworth, J.

1. -When an execution has been levied and a claim to the property levied on has been interposed, the claimant has the legal right to withdraw or discontinue his claim once, “without the consent of the plaintiff in execution, or some person duly authorized to represent such plaintiff.” Civil Code (1910), § 5171; American Investment Co. v. Cable Co., 4 Ga. App. 106 (60 S. E. 1037).

2. Sections 5625 and 5626 of the Civil Code of 1910 (as to payment of costs or the filing of an affidavit in forma pauperis, where a plaintiff recommences his suit, after nonsuit, dismission, or discontinuance) do not apply to claim cases.

3. The court erred in overruling the demurrer to the original plea in abatement, and all proceedings thereafter were nugatory.

■Judgment reversed.

Broyles, P. J., and Jenlciits, J., concur.

Ellis, Webb & Ellis, for plaintiff in error.

J. B. Hoyl, Wallis & Wort, O. R. Winchester, contra.


text:
    7412.
    Kleckley & English v. Bank of Oglethorpe.
    Decided February 1, 1917.
   Bloodworth, J.

1. There is ample evidence to support the verdict. 2. When considered in connection with the entire charge of the court, there is not sufficient error in the excerpts therefrom complained of in the motion for new trial to authorize a reversal. Mere inaccuracies of expression, or slight errors, which are not likely to obscure the meaning of the court or mislead the jury, will not authorize this court to set aside a verdict, where the charge is otherwise comprehensive and correct.

3. “The showing as to diligence in reference to the alleged newly discovered evidence not being at all satisfactory, and there being no affidavit as to the character and credibility of the alleged new witness, the dis-cretion of the trial judge in refusing to grant a new trial will not be controlled.” Atwater v. Hannah, 116 Ga. 745 (42 S. E. 1007).

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.

Complaint; from city court of Oglethorpe—Judge Greer. March 10, 1916.

W. W. Dykes, for plaintiffs in error. Jule Felton, contra.


text:
    7443.
    YESBIK v. CENTRAL OF GEORGIA RAILWAY CO.
    1. Where an action against a carrier for damage to goods is brought under ■§ 2752 of the Civil Code of 1910, an amendment setting up such a claim as a common-law liability can not be allowed. The effect of such an amendment would be to add a new and distinct cause of action.
    2. Such a statutory action, under the section named, against the last of several connecting carriers in an interstate shipment of freight, is not prohibited by the act of Congress of June 29, 1906 (34 „Stat. 595, e. 3591, § 7, pars. 11, 12), known as the Carmack amendment to the Hepburn act.
    Decided February 1, 1917.
    Action for damages; from city court of Albany—Judge Clayton Jones. March 27, 1916.

      J. H. Pool, for plaintiff. Pottle & p[ofmayer, for defendant.
   Jenkins, J.

This suit was against the Central of Georgia Railway Company, as the last connecting carrier, for damage caused by delay in the delivery of a shipment of bananas, received by it in good condition. The petition did not allege by whose negligence the delay was occasioned, but the plaintiff undertook, by amendment, to charge it to the defendant. The transaction being an interstate shipment, the defendant moved to dismiss the petition, on the ground that such action, based upon the provisions of § 2752 of the Civil Code, was prohibited by the terms of the Car-mack amendment to the Hepburn interstate-commerce act; whereupon the plaintiff offered to amend his suit as already indicated. The amendment was disallowed and the petition was dismissed; and the plaintiff excepted. It is contended' in the brief of - his counsel that the suit as originally brought was not based upon the statutory remedy given by the code, but was an action good at common law.

1. It is true, as seems to have been recognized by each of the litigants in the court below, that had the plaintiff based his suit upon the shipper’s common-law liability, his right of action would not have been affected by the provisions of the Carmack amend-merit referred to. See Cincinnati, Hamilton & Dayton Ry. Co. v. Quincey, ante, 167 (91 S. E. 220). And while it will he observed that the status of the ease is in fact controlled by the rule announced in the second headnote above, in making such disposition it has been found necessary to determine the question raised by the record and which constituted the sole issue of contention in the court below: Was the action, as brought, based upon the common-law, or the. statutory remedy? Despite the reasoning of counsel for the plaintiff, we think this suit comes clearly within the provisions of § 2752 of the Civil Code, and therefore could not be changed by amendment into a common-law action.

In one of the cases cited by counsel for the plaintiff, Philadelphia & Reading Railway Co. v. Venable, 117 Ga. 142 (43 S. E. 407), it was held, that “In a suit against a railroad company for damages alleged to have been sustained to goods shipped by the plaintiff over its line, where the petition sets forth a good common-law action, the fact that it also alleges that the defendant 'received [the goods] as in good order at . . , a station upon its line, and transported same to’ their destination, does not make the action one brought solely under the terms o"f the Civil Code [of 1895], § 2298” (Civil Code of 1910, § 2752); but it will be observed that, the plaintiff in that case set up a good and complete common-law right of action, the declaration distinctly alleging that the damage to the goods was caused by the negligence of the defendant to that suit. In Southern Railway Co. v. Gardner, 127 Ga. 320 (56 S. E. 454), it was held that in the original- pleadings neither the common-law nor the statutory liability was set forth. In that ease the petition alleged “that the goods of the-plaintiff had been delivered to another carrier, who, in turn, delivered them to defendant, and that the time consumed in the transportation from the initial point to destination was so unreasonable that the goods were damaged in consequence of the delay,” and “in effect alleged that the defendant company was the last of a line of connecting carriers, but did not allege that the delay occurred upon the line of the defendant, or that the goods were received by it in good order.” The plaintiff was there permitted, however, to amend his suit by alleging that the defendant was the last of a line of connecting carriers, and the petition when so amended was held to set out a good statutory liability. In the jjresent case the allegations are substantially those of the petition in that case, as amended. In this case, as in that, there is no allegation that the delay was occasioned by the negligence of the defendant; and therefore the petition fails here, as it failed there, to show liability under the rule of the common law; but in this case it is alleged that the goods were received by the terminal carrier in good order, and therefore a good statutory action is set out; and this being the case, the court did not err in refusing to allow such an amendment as would set up a cause of action at common law, as the effect of such an amendment would have been to add a new and distinct cause of action. Exposition Cotton Mills v. Western & Atlantic Railroad Co., 83 Ga. 441 (10 S. E. 113); Hartwell Railway Co. v. Kidd, 10 Ga. App. 771 (74 S. E. 310).

2. Since the filing of the original briefs in this case this court, in the case of Central of Georgia Railway Co. v. Waxelbaum Produce Co., 18 Ga. App. 489 (89 S. E. 635), reverted to the rule set forth in the second headnote above, thereby overruling the decision in Southern Railway Co. v. Bennett, 17 Ga. App. 162 (86 S. E. 418), and counsel for the defendant ask that the ruling in the Waxelbaum, Produce Co. case, supra, be now reviewed. It is not deemed profitable by us to again enter into a full discussion of the reason for the rule announced in the Waxelbaum Produce Co. case, as in the original pronouncement of this court upon this subject, in the case of Atlantic Coast Line R. Co. v. Thomasville Live Stock Co., 13 Ga. App. 102 (78 S. E. 1019), the question was ably and exhaustively discussed. We will merely add that, since the rendition of the decision in the Bennett case, supra, the Supreme Court of the United States, in the case of Ga., Fla. & Ala. Ry. Co. v. Blish Milling Co., 241 U. S. 190 (36 Sup. Ct. 541, 60 L. ed. 948), has announced an opinion which appears to fortify the correctness of the rule now followed by this court, and to strengthen the reasoning set forth in the Thomasville Live Stock Co. case, supra. Upon review, the ruling in the ease of Central of Georgia Railway Co. v. Waxelbaum Produce Co., supra, is therefore adhered to; and, under that ruling, the dismissal of this suit was erroneous.

Judgment reversed.

Broyles, P. J., and Bloodworih, J., concur


text:
    7462.
    Central of Georgia Railway Company v. Garmon.
    Decided February 1, 1917.
    Action for damages; from city court of Polk county—Judge John K. Davis. April 8, 1916.

      J. Branham, Maddox & Boyal, Fielder & Fielder, for plaintiff in error. W. TF. Mundy, contra.
   Bloodworth, J.

1. There is evidence to support the verdict.

2. The alleged newly discovered evidence of a civil engineer, who states that, about the year 1907, he made a survey of the land in question, and that he “at the instance of defendant in the above case has since said trial made another survey of said tract of land,” is cumulative. Ordinary diligence would require that this last survey should have been made before the trial. Civil Code, § 6086. “A judgment of the trial court refusing a motion for new trial on the ground of newly discovered evidence will not be disturbed when the motion fails to show, ‘by affidavit of the movant and each of his counsel, that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence.’ ” Pharr v. Davis, 133 Ga. 759 (66 S. E. 917).

Judgment affirmed.

Broyles, P. J., anil Jenkins, J., concur.


text:
    7566.
    Bailey v. Ware & Harper.
    Decided February 1, 1917.
    Certiorari; from Fulton superior court—Judge Bell. April 1, 1916.

      Nalley & Scott, Albert Kemper, for plaintiff in error.

      Moore & Pomeroy, contra.
   Bloodworth, J.

When this case was here before (17 Ga. App. 492, 87 S. E. 712), the court decided that the judge “erred in allowing exceptions to the answer to be filed after the hearing was begun, and in sustaining them; ” and also erred in allowing “ an additional answer of the trial judge to become a part of the record in the case.” For these special reasons the judgment of the court below was reversed, without considering the other assignments of error in the petition for certiorari, except to decide that the trial court properly overruled the demurrer to the original petition. Held: (1) The effect of the said decision was to send the case back to the superior court to be heard on the original petition and the answer, except that the said court would not consider assignments of error as to the overruling of the demurrer. (2) The certiorari was properly overruled, thus precluding the possibility of another trial under this proceeding. The plaintiff in error had given a certiorari bond .upon which judgment was to be entered as in cases of appeal, and the judge did not err in making a final disposition of the case. Civil Code, §§ 5205, 5937.

Judgment affirmed.

Broyles, P. J., and Jenkins, J., eoneur.


author: Broyles, P. J.

text:
    7693.
    FINCH v. COX COMPANY.
    1 A payment made on an unfounded demand can be recovered back when made under an urgent and immediate necessity or to release property from detention. Civil Code (1910), § 4317. This code-section should be construed together with section 4116, which is as follows: “Duress consists in any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of the other, and actually inducing him to do an act contrary to his free will.” Fenwick Shipping Co. v. Clark, 133 Ga. 43, 44 (65 S. E. 140).
    2. As shoivn by the record, the payment made by the plaintiff was not a voluntary payment, but was made under an urgent and immediate necessity therefor, and to secure the release of her personal property from detention; and, under the particular facts of the case, the defendant could not in equity and good conscience retain it.
    S. The verdict for the defendant was contrary to law and the evidence, and the court erred in refusing to grant a new trial.
    Decided February 1, 1917.
    Complaint; from city court of Waycross—Judge McDonald. June 2, 1916.

      Paries & Reed, E. W. Wilson, J. E. English, for plaintiff.

      J. L. Sweat, O. L. Redding, for defendant.
   Broyles, P. J.

Under the evidence adduced in this case, the following findings of fact were demanded: G. S. Finch, the husband of the plaintiff, was a retail grocer in Waycross, Georgia, and owed the defendant (a wholesale grocery company in the same city) $1,408.57. - Mrs. ■ Finch, the plaintiff, was not indebted to the defendant in any amount. On January 11, 1913, Finch made a general assignment for the benefit of his creditors, and on the same day he left, with his wife and children, for Atlanta, and on the same date shipped to his wife, to Atlanta, a car containing household goods, clothing, and some canned groceries. On January 15, 1913, Cox, the president of the defendant company, sued out an attachment before a justice of the peace at Waycross, alleging that Finch owed the defendant $1,408.57 and had absconded. Cox and a deputy-sheriff of Ware county went to Atlanta, located the car consigned to Mrs. Finch, in the railroad yards, and the deputy levied the attachment upon it. All the property in the car belonged to Mrs. Finch, and her husband had no title thereto. Among the property in this car was clothing for herself and her minor children. Mrs. Finch, with her children and husband, was stopping at a hotel, and their intention was to rent a house and make Atlanta their permanent home. On learning of the attachment Mrs. Finch employed a lawyer, who endeavored to have Cox release the property. Cox refused to do so unless the full amount of Finch’s debt was paid to him, stating that otherwise he was going to return the car to Waycross; and he had the deputy secure a bill of lading for the car to that destination. Cox finally agreed to release the car on the payment to him of $800 in cash. The plaintiff in error was unable to make the statutory bond required to release her property, and her lawyer paid to Cox $800, and Cox released the property and gave to the lawyer the following receipt: “Received from Mrs. G. S.'Finch the sum of $800, v.diich is paid to me in consideration of the release of levy on car No. 20671, marked A., B. & A., and contents, now attached in yards of A., B. & A. R. R. at Atlanta, Ga. J. M. Cox Co., by J. M. Cox, President.” Mr. Cox returned to Way-cross with the $800, and credited the amount on his books to “merchandise account.” Shortly thereafter involuntary bankruptcy proceedings were filed against- Finch, and he effected a compromise of fifty per cent. The claim of Cox’s Company was proved in the bankruptcy proceedings, for the full amount of the debt, to wit, $1,408.57, and fifty per cent, of that amount was paid on it. This sum and the $800 which the defendant company had secured from Mrs. Finch amounted to $1,504; Cox himself admitting, on cross-examination: “If you put it so, directly and indirectly, I got $1,504 out of our claim of $1,400, or $100 more than the claim.” Mrs. Finch brought suit to recover the $800 which she had paid to secure the release of her property, alleging, that it was paid under an urgent and immediate necessity therefor, and to secure the release from detention of her property which had been wrongfully levied upon under the attachment, and that, whether it was collected on her husband’s debt or not, it was. paid under duress and without consideration, and that the defendant was not entitled to retain it. Two mistrials of the case resulted, and the third trial resulted in a verdict for the defendant; and the plaintiff excepted.

A payment made to prevent a levy is not under duress where the party had an immediate and adequate remedy at law. Hoke v. Atlanta, 107 Ga. 416 (33 S. E. 412); Strange v. Franklin, 126 Ga. 715 (55 S. E. 943). In both of the cases here cited the party making the payment had a complete and easily available legal remedy to prevent the levy, and, in addition, the payment was made to one who in good conscience could retain it. In the instant case Mrs. Finch was at a hotel in a strange city, to which she had just removed from a distant part of the State. Among her property which was levied on was her household .furniture.and the wearing apparel of herself and her little children. She was unable to make the statutory bond necessary to secure the release of the attachment. If she had filed a claim to the property and made a “pauper’s affidavit” in lieu of bond, her property would not have been released but would have been taken back to Waycross, Georgia, and she would have been obliged to return and there fight out her claim in the courts; The defendant company had no claim against her, its claim being against her husband only. It is unmistakable from the evidence that the $800 which the defendant company received from Mrs. Finch was in fact received as a credit on her husband’s debt, notwithstanding the testimony of Cox that he had credited this payment on the books of his company to “merchandise account,” and although the defendant company, in the bankruptcy proceedings against Finch, proved its claim for the entire amount originally owed by him, to wit, $1,408.57. If the $800 was not received as a payment on Finch’s account, then its retention by the defendant company would be unconscionable, as it otherwise had no claim whatever on the property levied upon, or upon the $800 given to secure the release of that property. “Whenever the plaintiff could recover in a court of equity he can recover in an action for money had and received. Chitty on Con. 474 ; 2 T. R. 153; 1 Cowper R. 372; 6 Peters, 68.” Phillips v. Crews, 65 Ga. 275, 277; Culbreath v. Culbreath, 7 Ga. 64, 68, 69 (50 Am. D. 375).

Under the facts shown by the record it is clear to us that the payment by Mrs. Finch to the defendant was made under an urgent and immediate necessity therefor, and to secure the release of her personal property which had been wrongfully levied upon under an attachment sued out by the defendant; that sections 4317 and 4116 of the Civil Code of 1910 are applicable to her suit, and that the defendant can not in equity and good conscience retain the money so paid to it. Mrs. Finch is entitled to recover back her money.

Under the foregoing rulings it is unnecessary to pass specifically upon the various grounds of the amendment to the motion for a new trial. As complained of therein, there were errors in the admission and the repelling of evidence, and in the charge of the court. These errors, however, in the light of this decision, will doubtless be eliminated upon the next trial of the case.

Judgment reversed.

Jenkins and Bloodworfh, JJ., concur.


text:
    7701.
    Levy v. Nathan.
    Decided February 1, 1917.
    Complaint; from city court of Tifton—Judge Eve. June 5, 1916.

      Ira 8. Clary, Hendricks, Mills & Hendricks, for plaintiff.

      B. 8. Foy, for defendant.
   Broyles, P. J.

1. There was no error in sustaining the plaintiff’s demurrer to the 9th, 13th, 14th, 15th, and 16th paragraphs of the defendant’s cross-petition as embodied in his answer, and in striking them from the answer.

2. Under the facts of the ease the trial judge did not err in directing a verdict in favor of the plaintiff for $101.41 principal and $21.90 interest.

3. The court did not err in refusing to grant a new trial.

Judgment affirmed.

Jenkins and Bloodworfh, JJ., concur.


text:
    8010.
    COVIN v. WILLIE, judge.
    1. When a bill of exceptions complies with the law, conforms to the truth, contains (or specifies) all of the evidence, and specifies all of the record material to a clear understanding of the errors complained of, and is presented to the presiding judge within the time prescribed by tlie statute, it is the duty of the judge to sign and certify it.
    2. When a bill of exceptions is presented to a judge and he refuses to certify it because it does not contain “relevant matters transpiring before him on the hearing which may legitimately serve to explain the ruling made .or the facts transpiring in connection therewith which will throw light upon it,” and he returns the bill of exceptions to counsel with his objection to it in writing, it is the duty of counsel to correct the bill of exceptions, and when counsel refuses to do this, the judge will not be required by mandamus to sign and certify the bill of exceptions.
    Decided February 1, 1917.
    Application for mandamus.

      P. C. Andrews, 8. P. Cain, for plaintiff.
   Bloodworth, J.

L. B.'Covin brought suit against Cairo Banking Company and against O. T. Davis and J. W. Nicholson. All of these defendants appeared and filed demurrers and answers. The court sustained the demurrers to the extent of striking all allegations of tort from the plaintiff’s petition and requiring him to proceed ex contractu. After this time J. W. Nicholson filed a demurrer, on the ground that there was a misjoinder of parties, and this demurrer was sustained and an order entered striking J. W. Nicholson as a party defendant. Afterwards on the same day the trial judge sustained a general demurrer to the petition and dismissed it. On the 15th of November, and within thirty days from the judgment of dismissal, counsel for L. B. Covin tendered to the trial judge, Hon. W. J. Willie, a bill of exceptions, and asked that it be signed and certified. The presiding judge refused to sign and certify the bill of exceptions, for the following reasons, as stated by ltim and endorsed on the bill of exceptions: “After argument by counsel for defendant in error on the demurrer striking J. W. Nicholson from the suit, and before judgment was entered on same, counsel for plaintiff in error was asked by the court what, if anything, he had to say regarding the demurrer, ,and replied that they had contemplated striking J. W. Nicholson from the suit. I think this should be incorporated in the bill of exceptions, and if done, I will certify the same to be true.” On refusal of counsel to insert the above in the bill of exceptions the presiding judge refused to sign and certify the bill of exceptions, and an application for mandamus was presented to this court.

Under the above statement of facts as shown by the petition for mandamus, should the judge be required to sign and certify the bill of exceptions as tendered? “The rule now seems to be well settled in this State that after final judgment the losing party— other than the State in a criminal case—is entitled to one bill of exceptions as a matter of right; and if the judge refuses to sign and certify the bill of exceptions when presented to him, if it truly states the facts, an application for mandamus will be granted . . compelling the judge to sign and certify the bill of exceptions, irrespective of the merit of the exceptions taken.” Seaboard Air-Line Ry. v. Reid, 6 Ga. App. 18, 20 (63 S. E. 1130). The final test is: Does the bill of exceptions “truly state the facts?” In the instant case a bill of exceptions was tendered in due time to the judge, and he refused to sign and certify, and endorsed on it his reason therefor as stated above. When the judge returned the bill of exceptions counsel refused to change it to conform to the suggestion of the judge, and applied for mandamus. Did the judge err in refusing to sign and certify the bill of exceptions as presented? The law requires the judge to inspect the bill of exceptions, and the burden of determining whether it speaks the truth is upon him. “The judge to whom such bill of exceptions is tendered shall, if needful, change the same so as to conform to the truth and make it contain all the evidence, and refer to all of the record, necessary to a clear understanding of the errors complained of.” Civil Code, § 6140 (3). “If the judge shall determine that the bill of exceptions is not true, or does not contain all the necessary facts, he shall return the same, within ten days, to the party or his attorney, with his objections to the same in writing. If those objections are met and removed, the judge may then certify, specifying in his certificate the cause of the delay. If the judge sees proper, he may order notice to the opposite party of the fact and time of tendering the exceptions, and may hear evidence as to the truth thereof.” Civil Code, § 6158.

“It is competent for the judge to certify as to relevant matters transpiring before him on the hearing, which may legitimately serve to explain the ruling made or the facts transpiring in connection therewith which will throw light upon it.” Petty v. Patterson, 144 Ga. 339, 340 (87 S. E. 19). Was the above statement of counsel, which the judge suggested should be in the bill of exceptions, material? Copies of the pleadings in the original case are not attached, and the petition for mandamus is not full enough for this court to pass upon this issue. Although the contrary is insisted on in brief of counsel for the plaintiff in error, yet if the statement amounted to a consent of counsel to sustaining the demurrer and striking the name of J. W. Nicholson from the petition, it would be material in explaining the ruling and throwing light upon it. Under this view of the case “consensus tollit errorem” would apply. But apart from this, in the case of Brinson v. Callaway, 112 Ga. 162, 163 (37 S. E. 177), Justice Cobb says: “This court can not undertake to determine an issue between the judge and counsel as to what parts of the record are material to a proper consideration of the ease. The judge who tried the case must decide this question, the law requiring him to certify that the bill of exceptions ‘specifies all of the record material to a clear understanding of the errors complained of.’ Civil Code [of 1895], §§ 5532, 5528 (4). The decision of the judge in this matter is conclusive on counsel tendering the bill of exceptions. It is the duty of counsel tendering a bill of exceptions to specify such portions of the record as are material to a clear understanding of the errors complained of. Civil Code [of 1895], §§ 5528, 5530 [Code of 1910, §§ 6140, 6142]. While the judge to whom a bill of ex7 ceptions is tendered is authorized to change the same so as to make it refer to all the record necessary, he is certainly not required to do this in a case where counsel tendering” the bill of exceptions not only does not request him so to do, but expressly refuses to have incorporated in the bill of exceptions parts of the record which the judge claims are material, and makes a direct issue with the judge as to the materiality of the same and the right of the judge to require the parts of the record claimed by him to be material to be transmitted to this court.” In the case of Campbell v. Foute, 6 Ga. App. 113 (64 S. E. 292), the court said: “The determination of what is true and what is not true as to matters occurring on the trial of a case, when it is sought to review the trial by a bill of exceptions, addresses itself exclusively to the presiding judge; and this court is compelled by law to take his statement as true. If the judge says that certain corrections are necessary to make the bill of exceptions speak the truth, we have no power to allow counsel to take issue with him, nor can we take issue with him ourselves. It is the duty of counsel to-make these corrections and tender to the trial judge the bill of exceptions as corrected.” In the case of Pelham Manufacturing Co. v. Scaife, 7 Ga. App. 446, 448 (67 S. E. 111), in stating the reason which will justify the trial judge in declining to certify a bill of exceptions, Judge Eussell said: “It must be either because the bill of exceptions is presented too late, or because- the statements of fact relating to the proceeding it is sought to review are untrue, or because the counsel has declined to correct the bill of exceptions in. accordance with the direction of the court, or some such similar matter, which does not in any wise relate to the sufficiency or merit of the exceptions which the application for the writ of error seeks to present to the higher court.” Counsel did not deny that the statement which the judge wished incorporated in the bill of exceptions was true, and the judge thought it material and offered to sign the bill of exceptions if the statement of counsel were written into it, but counsel refused. The judge having said that the above statement should be incorporated in the bill of exceptions in order to make it speak the truth, “we have nó power to allow counsel to take issue with him, nor can we' take issue with him ourselves.” Counsel having declined to correct the bill of exceptions as directed, the judge properly refused to sign and certify the same.

Mandamus refused.

Broyles, P. J., and Jenkins, J., concur.


text:
    8181.
    Williams v. Davis.
    Decided February 1, 1917.
    Action for false arrest; from Dooly superior court—Judge George. October 30, 1915.

      Powell & Lumsden, J. T. Hill, for pláintiíf in error.

      Jule Felton, contra.
   Broyles, P. J.

1. The verdict was authorized by the evidence.

2. The grounds of the amendment to the motion for a new trial, not being referred to in the brief of counsel for the plaintiff in error, are treated as abandoned.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


text:
    8241.
    Price-Evans Foundry Company v. Southern Bell Telephone and Telegraph Company.
    Decided February 1, 1917.
    Complaint; from Fulton superior court—Judge Ellis. October 9, 1915.

      Dodd & Dodd, for plaintiff. McDaniel & Black, for defendant.
   Broyles, P. J.

1. A tliird person dealing with an agent of an undisclosed principal can not hold the principal liable under the contract, where the principal has previously accounted and settled with the agent. Civil Code (1910), § 3596. **“"*300

2. Under the agreed statement of facts, section 3601 of the Civil Code, cited by counsel for the plaintiff in error, is not applicable.

3. The court did not err in directing a verdict for the defendant.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


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

text:
    8244.
    NEWSOME v. TRAVELERS INSURANCE COMPANY.
    1. In an action upon an accident-insurance policy, where it is apparent from the evidence introduced that the death of the insured was the result of external and violent means, and the issue is as to whether it was due to an accident, within the meaning of the policy, or to some cause excepted by the policy, the presumption is in favor of accident, and against the facts bringing the case within any of the exceptions of the policy, such as insanity of the insured, intentional injury inflicted by a third person, lack of due care and diligence, self-inflicted injuries. and suicide. 1 Corpus Juris, 495, § 278; Travelers Insurance Co. v. McConkey, 127 U. S. 661 (8 S. Ct. 1360, 32 L. ed. 308); Butero v. Travelers Insurance Co., 96 Wis. 536 (71 N. W. 811, 65 Am. St. R. 61); Travelers Insurance Go. v. Wyness, 107 Qa. 584, 589, 590 (34 S. E. 113); Newsome v. Travelers Insurance Go., 143 G-a. 785 (85 S. E. 1035); Allen v. Travelers Protective Asso., 163 Iowa, 217 (143 3ST. W. 574, 48 L. R.'A. (N. S.) 600).
    2. The evidence introduced by the plaintiff, showing that the death of the insured was caused by external and violent means, raised the presumption that the death was also accidental, and, together with the admissions in the answer, was sufficient'to carry the case to the jury; and the court erred in awarding a nonsuit.
    3. The court did not err in excluding evidence, as complained of in the bill . of exceptions.
    Decided February 1, 1917.
    Rehearing denied February 16, 1917.
    Action on insurance policy; from Fulton superior court—Judge Pendleton. October 8, 1915.

      J. F. Golightly, Gus Russell, J. O. Newsome, for plaintiff.

      Smith, Hammond & Smith, for defendant.
   Broyles, P. J.

The plaintiff’s evidence showed that the death of the insured was caused by a visible and external wound in his chest, which had been inflicted by some sharp instrument. No other fact or circumstance as to how the wound was caused was shown, except the statement (contained in a letter written by the plaintiff and addressed to the defendant, notifying it of the death of the insured) that the insured “died . from being stabbed by a negro on the streets.” This statement by the plaintiff must be taken as being prima facie true, as against her interests. Fair v. Metropolitan Life Insurance Co., 5 Ga. App. 708 (63 S. E. 812); Hill v. Ætna Life Insurance Co., 150 N. C. 1 (63 S. E. 124). It is clear that, in the absence of the statement just quoted, the plaintiff’s proof, 'together with the presumption of accident arising therefrom, and the admissions in the defendant’s answer as to the proof of death, etc., was sufficient to carry the case to the jury, nothing having been shown except that the death of the insured was caused by violent and external means. The case then narrows to this question: Did the additional proof, that the death of the insured resulted from his “being stabbed by a negro on the streets,” overcome and destroy the presumption of law that the wound causing his death was accidentally, and not intentionally, inflicted? A little reflection will, in our opinion, show that the question must be answered in the negative. It is entirely possible that the negro stabbed the insured without intending to do so. He may have been standing or walking upon the street, with an open knife in his hand, and have accidentally fallen, or been shoved, aganist the insured, or he may have stabbed the insured, without any provocation on the part of the latter, mistaking him for some one else. In either of such' events the stabbing would have been an accident within the meaning of the provisions of the insurance policy. Newsome v. Travelers Insurance Co., supra; Travelers Insurance Co. v. Wyness, supra; Gaynor v. Travelers Ins. Co., 12 Ga. App. 601 (4) (77 S. E. 1072).

The fact that the petition contained averments that a negro stabbed the insured, mistaking him for another person, and intending to injure that person and not the insured, and that the insured had done nothing to provoke the negro’s act, did not obligate the plaintiff to sustain these averments by proof, as they were not necessary to set out a cause of action. It is true that • the Supreme Court, when this case was before it (143 Ga. 785), on exceptions to the judgment sustaining a general demurrer to the petition, ruled that the petition (which contained such averments) was not subject to general demurrer, but it did not hold that the petition, without these allegations, would have been so subject. In such a case a cause of action is set out when the plaintiff shows that the death of the insured was caused by external and violent means; such proof, together with the presumption of accident arising therefrom, and the further presumption that the accident occurred in the manner stated in the declaration, is sufficient to carry the case to the jury, and it is not necessary to prove the facts and circumstances surrounding the injury or death of the insured, even though such facts and circumstances are set forth in the petition. The burden is then upon the defendant to show that the injury was intentionally inflicted. 1 Corpus Juris, 489, 490, 491, 493, 495, 497, 498. See also the other authorities previously cited. In other words, the legal presumption of accident that arose when the plaintiff showed that the death of the insured was caused by external and violent means was not neutralized or overcome by proof of the mere additional fact that death resulted from his being stabbed by a negro, on the streets, as no legal presumption then arose that the stabbing was intentional.

In our judgment the court erred in awarding a nonsuit.

Judgment reversed.

JenJcins and Bloodworth, JJ., concur.

ON MOTION ROE REHEARING.

Broyles, P. J.

No principle of law is better known than that the plaintiff must recover, if at all, upon the case as made by his pleadings. And ordinarily, to recover, he must prove all the material allegations made in his petition; and though he may have gone into unnecessary details in stating his case, he must nevertheless, as a general rule, prove the details set out in the petition. These last rules, however, do not apply to that class of cases where a presumption of law arises in favor of the plaintiff on proof of certain facts. In such cases, when these facts are proved, the plaintiff need not prove the other material allegations in his petition, for the facts already shown by him have raised a presumption of law in his favor against the defendant, and this presumption, together with the facts proved, make out a prima facie case for the plaintiff, and the burden is then shifted to the defendant to rebut this presumption and to disprove the case. In this class of cases the presumption raised-by law is intended to assist the plaintiff in making out his case, by presumptively supplying evidence which otherwise it would be incumbent upon him to adduce. For -instance, in a suit for personal injuries against a railway company, w'hen the .plaintiff shows that the injuries sued for were caused by the running of one of the defendant’s cars, the law immediately raises a presumption that the defendant was negligent, and further that it was negligent as charged in the plaintiff’s petition; and this is true even where it is alleged, in different counts, that the railroad was negligent in several different ways; the presumption then being that the defendant was negligent in some one of the ways alleged in the petition. Likewise^ in a suit upon an accident-insurance policy, like the case at bar, although the plaintiff can not recover unless it is shown that the death of the insured was due to “external, violent, and accidental means,” yet when the plaintiff proves that the death was caused by external and violent means, the law instantly raises the presumption that it was also accidental, and further, that the accident occurred in the manner set forth in the plaintiff’s petition; and thus the plaintiff in this case is relieved by the law itself from the burden of proving her allegation that the death of the insured was “accidental,” and that the accident occurred in the particular manner set out in her declaration. When she proved that the death of the insured was caused by a visible and external wound, this proof, together with the presumptions arising therefrom, was sufficient to carry the case to the jury; and the court erred in awarding a nonsuit. ‘ Motion denied.


text:
    8245.
    Dunaway v. Stocks et al.

   Jenkins, J.

1. An action for deceit was brought against a corporation and its directors, wherein the plaintiff elected to rescind his purchase of certain stock of the corporation and asked for judgment against the defendants for the face value thereof, alleging in his petition that, in consideration of the .conveyance by him of certain land, he became the purchaser, through a named individual, of certain stock in the corporation, and that the defendants had made certain false and "fraudulent representations regarding the condition of said company, by means of circulars issued and circulated prior to his purchase of the stock. It was not proved that the representations, when made, were untrue, nor that the defendants had knowledge of or had signed or authorized them; and the answer of the defendants offered to rescind the contract of purchase, so that the stock shown to be worthless would be can-celled and the land reconveyed to the plaintiff. Held, that no error was committed by the trial judge in granting a nonsuit as to the defendant officials of the corporation, nor in directing a verdict and entering a decree thereon requiring cancellation of the said stock and a re-conveyance of the land to the plaintiff.

Decided February 1, 1917.

Complaint; from Fulton superior court—Judge Bell. December 10, 1915.

Gober & Jaclcson, W. I. Heyward, for plaintiff.

Dillon & Burr ess, P. 0. McDuffie, for defendants.

2. The brief of counsel for the plaintiff in error states that the case at bar is simply one of deceit, brought against Stocks and others, on account of the sending forth of circulars containing false information; and as the contention set forth in the petition as to the illegal issuance and sale of the stock is not argued in the brief, this ground of his-complaint is treated as abandoned.

Judgment affirmed.

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


text:
    8248.
    Johnson v. Buckeye Cotton Oil Company.
    Decided February 1, 1917.
    Action for damages; from Fulton superior court—Judge Ellis. September 6, 1915.

      Charles M. Moon, Patti S. Etheridge, Charles B. Shelton, for plaintiff. E. V. Carter, for defendant.
   Broyles, P. J.

This was a suit for negligent homicide of the plaintiff’s son. The evidence adduced by the plaintiff; together with the admissions in the defendant’s answer, .failed to show that the homicide was caused by the defendant’s negligence; and a nonsuit was properly awarded by the court.

Judgment affirmed.

Jenlcins and Bloodworth, JJ., concur.


text:
    8274.
    Dickerson v. Dickerson.
    Decided February 1, 1917.
    Complaint; from DeKalb superior court—Judge Smith. September 6, 1915.

      A. M. Brand, for plaintiff. Alonzo Field, for defendant.
   Jenkins, J.

1. It is well settled that the law favors compromises, when made in good faith, whereby disputed claims are settled, and especially is this true when related to family controversies; and a promise, when thus made, in extinguishment of a doubtful claim, furnishes sufficient consideration to support a valid contract. While it is not necessary that the contention which forms the basis of such a compromise shall be meritorious in order to support the promise, yet it is essential, in order to furnish a consideration therefor, that the contention be made in good faith and be honestly believed in.

2. «The contention of the plaintiff that his deceased wife was indebted to him for services rendered does not support a promise on the part of his son to pay a stated sum of money in order to prevent action against the decedent’s estate, it appearing, from' the plaintiff’s own testimony, that the deceased wife had only a life-estate in certain realty, and owned no other property whatever. Bass v. Bass, 73 Ga. 134 (c); Belt v. Lazenby, 126 Ga. 767 (56 S. E. 81). .

3. While ordinarily the question of good faith in such a transaction is a question for the jury, the trial judge in this case did not err in granting a nonsuit.

Judgment affirmed.

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


text:
    8276.
    Stone Mountain Granite Corporation v. Patrick.
   Broyles, P. J.

1. The statute of frauds does not apply to a contract which is not to be performed within one .year from the making thereof, where there has been such part performance of the contract as would render it a fraud of the party refusing to comply, if the court did not compel a performance. Civil Code (1910), § 3223 (3). Under this ruling the contract in this case was not within the statute of frauds.

2. The court did not err in refusing to require the plaintiff, while being examined as a witness, to state how much salary he had been paid by a former employer. Such evidence was not material to the issues in this case.

3. The contentions of the two parties were substantially given in the charge of the court, and the statements as to them were fully as favorable to the defendant as to the plaintiff.

4. Under the facts of the case the agreement entered into between the parties, after the defendant had notified the plaintiff of the latter’s discharge from his employment, that the plaintiff would be given thirty-days notice and allowed to work another month before discharge, did not amount to a novation of the original contract, but was in the nature of a compromise; and where (as is shown by the-plaintiff’s evidence) the defendant afterwards refused, without good and sufficient cause, to carry out this agreement, and wrongfully discharged the plaintiff before the expiration of the thirty days, and without paying him his salai-y for that month, the plaintiff was entitled to hold the defendant to his original contract, and, the contract being for one year, to recover his whole year’s salary, less whatever amount had been paid him by the defendant, and whatever amount he had been able to earn after his discharge, exercising ordinary diligence to find employment. And the court did not err in so instructing th,e jury.

Decided February 1, 1917.

Action on contract; from DeKalb superior court—Judge Smith. November 2, 1915.

Alonzo Field, for plaintiff in error. A. M. Brand, contra.

5. None of the other instructions excepted to, when considered in connection with the evidence and the charge as a whole, contain matej-ial error.

6. The defendant’s plea, supported by some proof, was that he discharged the plaintiff because the latter was incompetent and failed to perform his duties under the contract. On the other hand, the plaintiff’s evidence tended to show that he was competent to perform the duties for which he was hired, and that he did perform such duties satisfactorily and to the best of his ability. This issue of fact was finally settled by the jury.

7. There was ample evidence to support the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins and Bloodworth, J.J., concur.


text:
    8277.
    Parker v. Roberts.
    Decided February 1, 1917.
   Jenkins, J.

1. Where land is bargained by the tract, a deficiency in the acreage can not be apportioned unless the purchaser can show that actual fraud was perpetrated by the vendor. Kendall v. Wells, 126 Ga. 343 (55 S. E. 41); Goette v. Sutton, 128 Ga. 179 (57 S. E. 308); King Lumber Co. v. Cowart, 136 Ga. 739 (72 S. E. 37); Montgomery v. Robertson, 134 Ga. 66 (67 S. E. 431).

2. Where, in a suit on a note for the purchase-money of land so conveyed, the maker of the note undertakes to have an alleged deficiency in acreage apportioned in the amount of the recovery, but does not allege and prove actual fraud on the part of the vendor, the plaintiff is entitled to a judgment in the whole amount of. the note sued on, and the fact that the jury may have rendered a verdict allowing a portion of the shortage as shown by his evidence does not give the defendant the right to complain. Pullman Co. v. Schaffner, 126 Ga. 609 (4), 615 (55 S. E. 933, 9 L. R. A. (N. S.) 407).

Judgment affirmed.

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

Complaint; from Campbell superior court—Judge Smith. August 10, 1915.

J. J. Barge, for plaintiff in error. J. F. Golightly, contra.


text:
    8301.
    Toomey Brothers v. Citizens and Southern Bank.
    Decided February 1, 1917.
    Complaint; from Richmond superior court—Judge Hammond. October 21, 1915.

      Salem Butcher, for plaintiff in error.

      Alexander & Lee, Wright & Wright, contra.
   Jenkins, J.

On December 2, 1913, a bank borrowed a sum of money from the plaintiff bank, payable thirty days after date, and gave to the lending bank, as collateral security, customers’ notes, in which was included a note made by the defendant in this case. The borrowing bank was closed as insolvent on the following 13th day of December. In the facts and circumstances in the record there is nothing that would impute to the lending bank knowledge that such a transaction was had pending or in contemplation of insolvency. The positive testimony of the acting officials of the lending bank shows that it had no intimation of such condition. The provisions of the Civil Code of 1910, § 2360, which prohibits all conveyances and assignments by a bank in contemplation of insolvency or after insolvency, except for the benefit of all creditors and stockholders, is intended to prevent preferences for an antecedent debt, and has no application against an innocent assignee for value, without knowledge of such condition of the bank. Booth v. Atlanta Clearing House, 132 Ga. 100 (63 S. E. 907); Hightower v. • Mustian, 8 Ga. 506; Clarice v. Ingram, 107 Ga. 565, 576 (33 S. E. 802).

Judgment affirmed.

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


author: George, J. Luke, J.,

text:
    7752.
    INNES v. THE STATE.
    1. A general verdict of guilty upon an indictment containing several counts, charging kindred but distinct offenses under different sections of the code, can not be upheld, unless it appears, from the evidence, that the accused is guilty on all the counts in .the indictment.
    2. Where a person fraudulently converts to his own use property intrusted to him, he is indictable under the first clause of section 189 of the Penal Code of 1910. Where he otherwise than by a conversion to his own use disposes of the property intrusted to him, without the consent of the owner or bailor, to his injury, and without paying to the owner' or bailor on demand the full market value or price thereof, he is indictable under the second clause of that section. Section 192 of the Penal Code defines a distinct offense; and the offenses defined in sections 189 and 192 are kindred offenses, and may be charged in separate counts of the same indictment.
    3. The venue of the alleged crime was established under the law, and the trial court had jurisdiction.
    4. The exceptions to the admission of evidence and to the charge of the court are without merit. ®
    5. The fourth count in the indictment, as properly construed by the trial court, is based upon the first clause of section 189 of the Penal Code. Under this clause it was not necessary to allege and prove a demand for payment. No demand having been shown, although alleged, and the court having construed the fourth count in this indictment to charge only the offense defined in the first clause of the section, the general verdict of guilty is not contrary to law. The motion for a new trial was properly denied.
    Decided February 2, 1917.
    Indictment for larceny after trust; from Fulton superior court •—-Judge B. H. Hill. July 29, 1916.
    Victor E. Innes was tried and convicted on an indictment charging, in four separate counts, the offense of larceny after trust. The first count charged, in substance, that he and his wife were intrusted by Lois Nelms Dennis with $3,74-5.20, for the purpose of applying this sum of money for the use and benefit of the owner, and that, after being so intrusted, the defendants did unlawfully and fraudulently convert the money to their own use. The second count is but a repetition of the first, with the added allegation that the sum of money intrusted to the defendants was made up of several amounts and delivered over to them on separate dates. The third count charged that the defendants, after having been intrusted by the same bailor with the identical sum of money named in the first and second counts, for the purpose of investing it in certain lands and real estate in Montana and in Sonora county, in Mexico, in the name of the bailor, did wrongfully and fraudulently convert said money to their own use. The fourth count charges the same trust, for the same purpose, and by the same bailor, and concludes in this language: “did wrongfully and fraudulently dispose of said $3,745.20 otherwise than by applying it to the use and for the purpose for which it was intrusted by said bailor, without .her consent and to her injury, and without said bailees, to wit, Victor E. Innes and Ida May Innes, having paid to said bailor the full value and market price thereof, and •without having paid to Mrs. Lillie L. Nelms, administratrix on the estate of said Lois Nelms Dennis, on demand made, the full value and market price thereof,” etc. There was a general verdict of guilty, and, on the overruling of the defendant’s motion for a new trial, exceptions were taken.

      .John 8. Handler, G. L. Pettigrew, James H. Hines, for plaintiff in error. Pb. T. Williams, solicitor-general, Hugh M. Horsey, P. A. Stephens, R. R. Arnold, contra.
   George, J.

(After stating the foregoing facts.) It is well settled that an indictment may in several counts charge a violation of one statute in-different ways;' in which event a general verdict of guilty is good, if the evidence sustains either count. On the other hand., an indictment may charge in different counts the commission of distinct offenses of similar nature; in which event a general verdict of guilty is not good, unless the evidence Sustains each count. Undoubtedly section 192 of the Penal Code defines a distinct offense, and none of the class of cases contemplated by this section were intended to be embraced also in section 189. The latter section (§ 189) defines two separate and distinct offenses. The offenses defined in sections 189 and' 192 are kindred offenses, according to our codé, and may be properly charged in separate counts of the same indictment. The venue of the offense in the case at bar was properly shown to be in Fulton county, and the evidence warranted the verdict finding the defendant guilty as charged. Walker v. State, 117 Ga. 260 (43 S. E. 701) ; Martin v. State, 123 Ga. 478 (51 S. E. 334); Dunn v. State, 82 Ga. 27 (8 S. E. 806, 3 L. R. A. 199); Mangham v. State, 11 Ga. App. 427 (75 S. E. 512); Carter v. State, 143 Ga. 632 (3), 639 (85 S. E. 884).

In the indictment in the case at bar the fourth count, as construed by the trial judge, was not based on the second clause of section 189 of the Penal Code; nor is it in its language necessarily based thereon. No demurrer was filed, and we are not.concerned with the intention of the pleader in this case, for reasons hereinafter stated; nor do we wish to be understood as saying that the fourth count can not properly be considered as based upon the second clause of section 189. We think the pleader undoubtedly meant to charge in the fourth count a, violation of the second clause of this section; and -we are equally sure that this count might have been so construed, at least in the absence of any demurrer. The charge in the fourth count is not inconsistent with the charges contained in the first, second, and third counts, to the effect that the defendant committed the offense of larceny after trust delegated by directly converting the money to his own use. The conversion charged in the fourth count is consistent with the charge of direct conversion by the defendant; and, although not inconsistent with some other wrongful and fraudulent application of the money intrusted to him, the trial court construed the indictment to charge one offense,—a direct conversion by the defendant to his own use; and the construction given the indictment by the judge, in the trial of -the case and in his charge to ihe' jury, is controlling upon the court, and fixes the law of the case until corrected as provided by law.

Let us examine section 189. This section provides for the punishment of any factor, commission merchant, etc., or any other bailee .with whom any money or any other thing of value may he intrusted or deposited, who shall fraudulently convert the same or any part thereof to his own use, or otherwise dispose of the same or any part thereof without the consent of the owner or bailor, to his injury, and without paying the owner or bailor on demand the value or market price of same. The meaning of the section is to be found in the opinions of the Supreme Court of this State construing the same. ’ In Cody’s case, 100 Ga. 105, Justice Little said that this section “provides for two distinct offenses: (1) If any of the bailees named, with whom any money or other valuable thing shall be intrusted or deposited, shall fraudulently convert the same or any part 'thereof to" his own use, the statute is broken. (2) If any of such bailees with whom the property shall be intrusted or deposited shall dispose of the same to the injury of the bailor (otherwise than to fraudulently convert it to his own use) without the consent of the bailor, and without paying to the owner or bailor, on demand, the full value or market price, he has committed an offense against which the statute provides.” In order to sustain a conviction under the second clause of this section, it is necessary both to aver and prove a demand of the bailee and a refusal by him to pay. It is apparent that the statute is broken when the bailee converts the money to his own use or when he otherwise disposes of it. • To dispose of it “otherwise” is by Justice Little declared to be’a disposition of it fraudulently made otherwise, than by converting it to the bailee’s own use.

Let us consider the fourth count of the indictment in this case, in connection with the code section referred to, as construed by the Supreme Court. .The defendant, Innes, is charged with having received a certain sum of money, for a certain specific purpose, from the bailor, Lois Nelms Dennis, and it is charged that after having so received it he “did wrongfully and fraudulently dispose of said [money] otherwise than by' applying it to the use and Tor the purpose for which it was intrusted by said bailor, without her consent,” etc. On close examination it is apparent that this count does not charge that the bailee, Innes, did otherwise than by converting the money to his own use dispose of it. In order to bring this count under the second clause of section 189 this allegation is absolutely necessary. The charge in the indictment is -that he did dispose of the money otherwise than by applying it to the use and for the purpose for which it was intrusted by the said bailor, Lois Nelms Dennis. He did not, according to this charge, dispose of the money otherwise than by applying it to his own use. The peculiar wording of the fourth count is perfectly consistent with the charge that Innes directly converted to his own use the money with which he was intrusted; and while it may not be inconsistent with a charge that he did otherwise than by converting it directly to his own use dispose of it, this count does not require that construction. Under this count the State might have proved that Innes directly converted the money to his own use; and this proof would not be at variance with the allegation that he did wrongfully and fraudulently dispose of the money “otherwise than by applying it to the use and for the purpose for which it was intrusted by said bailor, Lois Nelms Dennis.” It is true, we think, that the State might have proved that Innes disposed of this money by investing it in bank stock, or by depositing it in a bank, contrary to the trust; but the State did not offer such proof, and the trial judge construed the indictment as a whole to charge the offense of larceny after trust delegated by converting it to the defendant’s own use, and confined the State to proof of direct conversion by the defendant of the money intrusted to him. This, in our opinion, is the conclusion of the whole matter.

Let us examine the charge of the court: “Now this indictment is in four counts. Each count charges ‘the offense of larceny after trust. As a matter of fact, in the opinion of the court, there is very little substantial difference in the counts, and all the counts charge simply the crime of larceny after trust.” Further on the court said: “Now -this indictment charges in general terms that this defendant was intrusted by Mrs. Lois Nelms Dennis with a certain amount of money, thirty-four or thirty-five hundred dollars—-the amount is not material—for a certain purpose, the purpose stated in the indictment, and that the money was to be applied by Innes to the use and benefit of Mrs. Dennis, who was the owner of the property—the money—and the party who intrusted it to.him.. And the indictment further charges that, after having, been so intrusted with this money for the purpose aforesaid, he converted it to his own use fraudulently,—that is, he appropriated it to his own use with intent to steal it.” Further on in the charge the judge used the following language: “While the indictment sets forth the offense in different counts, it merely charges substantially one offense against this defendant and the other defendant. And if you believe beyond a reasonable doubt, from this evidence, that all the counts are violated, not only the general count but the specific count (one of the counts'being specific, giving the amounts and dates her money is alleged to have been obtained, and the fourth count alleging demand and refusal to pay), you could find a general verdict of guilty. I charge you that demand in this case is unnecessary, under the law and evidence applicable thereto.” Looking to the whole charge, nowhere is the jury informed that the defendant could be convicted upon proof of any disposition other than a direct conversion by him to his own use of the money intrusted to him. It is true that the judge did not expressly take away from the jury the fourth count in the indictment, but he construed the fourth count in the indictment to fall under the first clause of section 189; and if his construction was permissible (and of that the wi’iter has no moral doubt), then the added allegations of demand and refusal to pay were by the court properly treated as mere surplusage, as was done in Keys’ case, 112 Ga. 392 (1), 394 (37 S. E. 762, 81 Am. St. R. 63).

The general verdict of guilty on an indictment containing more than one count is good where the effect of the ruling of the trial judge'is to limit the jury to a consideration of certain counts supported by the evidence. Let us examine one case. In Waver v. State, 108 Ga. 775 (33 S. E. 423), it was said: “When on the trial of an indictment containing three counts the court instructed the jury in these words: ‘You will not allow the charges in the first and second counts of that indictment to disturb your deliberations; with those two counts you have no'concern; you will look to the third count in the bill, and, applying the law as already given you in .charge to the facts, make your verdict/ and there was a general verdict of guilty, such verdict was properly treated as having been based on the third count in the indictment.” It is true that in the case at bar the trial judge did not expressly eliminate the fourth count, nor was .it necessary for him to eliminate the same. This charge, that Innes disposed of the money intrusted to him by Lois Nelms Dennis by applying.it otherwise than to the purposes intended by her, and for which she intrusted it to him, is clearly susceptible of the construction placed upon it by the trial court, to wit, that Innes converted the money to his own use, with intent to steal the same. Indeed, the trial court should have so construed this indictment, because it would have been manifestly unfair to the accused to allow the State to prove a conversion other than a direct use of the money by the defendant himself, under the indefinite, redundant statement in the indictment. When, therefore, the court instructed the jury that “demand in this case is unnecessary, under the law and evidence applicable thereto,” he as effectively took away from the jury any right to consider a conversion of the money, or of any part thereof, intrusted to Innes by the bailor, Lois Nelms Dennis, by applying it to any other than his own use, as if he had expressly stated to the jury that they should not consider any other charge against the defendant than that of direct conversion of the bailor’s money by him to his own use, with the intent to steal the same. Indeed, the court did expressly instruct the jury that they would be authorized to convict the defendant only in the event they believed from the evidence, beyond a reasonable doubt, that he did convert the money intrusted to him to his own use. It is to be noted that the judge, in his construction of the indictment, treated the ease against Innes as based upon the first clause of section 189, a construction not only permissible, but entirely consistent with the rights of the defendant; and in his sentence he treated the indictment as charging one offense, and imposed only the penalty provided under the first clause of section 189.

There is no necessity for a retrial of this case. The facts in the record abundantly support the verdict, and both the language in the fourth count of this indictment and the construction placed thereon by the trial court, which must be taken as the law of this . ease so far as the State is concerned, placed the case under the first clause of section 189 of the Penal Code.

' Judgment affirmed.

Wade, O. J., concurs. Lulce, J., dissents.

Luke, J.,

dissenting. I can not agree to the judgment of af-' firmance in this case. It is admitted in the majority opinion that the defendant is not charged with the same offense in different ways under one section of the Penal Code, but is charged with kindred crimes under different sections of the Penal Code, to wit, § 189 and § 192. There are four counts in the indictment. The fourth count charges as follows: “for that the said Victor E. Innes and Ida May Innes, in the county aforesaid, on the 29th day of May, . . 1914, with force and arms, having been then and there intrusted by Lois Nelms Dennis - with the sum of three thousand seven hundred forty-five and 20/100 dollars in money, of the value of three thousand seven hundred forty-five and 20/100 dollars, and the property of said Lois Nelms Dennis, for the purpose of investing said sum of money in lands and real estate in Montana and within a radius of forty-six miles of Lewiston in Montana, and in certain lands and real estate in Sonora county in Mexico, and after having been so intrusted by said bailor, Lois Nelms Dennis, for the purposes herein set forth, did wrongfully and fraudulently dispose of said three thousand seven hundred forty-five and 20/100 dollars otherwise than by applying it to the use and for the purposes for which it was intended by said bailor, without her consent and to her injury, and without said bailees, to wit, Victor E. Innes and Ida May Innes, having paid to said bailor the full value and market price thereof, and without having paid to Mrs. Lillie L. Nelms, administratrix on the estate of said Lois Nelms Dennis, on demand m'ade, the full value and market price thereof, contrary to the laws of said State, the good order, peace, and dignity thereof.”

The trial court construed the fourth count to be under the first clause oí section 189 of the Penal Code, and the majority of this court hold that “the construction given the indictment by the judge, in the trial of the case and in his charge to the jury, is controlling upon the court, and fixes the law of the case until corrected -as provided by law.” I can not assent to this proposition. If the trial court erroneously construed this count in the indictment, this court is not bound by it. The writer grants that the trial court could have eliminated the count by expressly doing so in the charge-to the jury, but, the defendant having been put in jeopardy-upon this indictment, he was entitled to a verdict of not guilty upon any count that the State failed to make good by proof. Different counts in an indictment under kindred statutes stand as if they were two indictments; and the right to impose sentence, where the verdict is general in such a case, is the right to sentence as for two separate and distinct offenses. Can there be any doubt that the fourth count was drawn under the second clause of section 189 of the Penal Code? To read that section of the code and read the indictment is to answer the question. Does section 189 make two kinds of acts criminal? If so, the State failed to show the one alleged in the fourth count. Is the defendant en- * titled to a verdict of not guilty on that count, or shall a verdict of ' guilty under that count stand, simply because the trial court construed the fourth count to have been drawn under the first clause of section 189 ? In McCoy v. State, 15 Ga. 205, 208, Judge Benning, for the court, in construing the language of this section, said: “These words make two kinds of acts criminal—First, that in which the party fraudulently converts the article to his own use. Second, that in which he otherwise disposes of the article, but to the injury of the owner, and without his consent, and without paying him the full value or market price of the article.. In the first kind, the crime is complete as soon as the party fraudulently converts the article to his own use. Nothing more need happen. It is not necessary that he should also fail to pay the owner full value or market price of the article. In the second class, in which the article is disposed of otherwise than to the use of the party himself, the crime is not made complete by the mere disposing of the article. To make it complete, three other things must also exist—an injury to the owner, the non-consent of the owner, a failure to pay the owner the full value or market price of the thing disposed of.”

In the ease of Alderman v. State, 57 Ga. 367, it was held that “An indictment for larceny after trust, under section 4422 [now § 189] or section 4424 [now § 192] of the Code, which charged that defendant did fraudulently convert the goods intrusted to him to his own use, need not charge that the same was done without the consent of the owner or bailor, and to his injury, and without paying him on demand'the full value thereof; these clauses of the sections, or either of them, apply to other disposition of the goods than to the bailee’s fraudulent conversion to his own use, and need only be charged and proven in such cases.” Justice Hall, in Soule v. State, 71 Ga. 267, 270, said: “In the case of McCoy v. State, 15 Ga. 205, 208, which seems to have been well considered, Benning, J., speaking of this statute, and applying it to the case then before the court, and which in its main features is much like the present, said: ‘These words make two kinds of acts criminal: First, that in which the party fraudulently converts the article to his own use. Second, that in which he otherwise disposes of the article, but to the injury of the owner and without his consent, and without paying him the full value or market price of the article. In the first kind, the crime is complete as soon as the party fraudulently converts the article to his own use. Nothing more need happen. It is not necessary that he should also refuse to pay the owner the full value or market price of the article. In the second class, . . to make the crime complete, three other things must also exist—an injury to the owner, the non-consent of the owner, a failure to pay the owner the full value or market price of the thing disposed of,’ and, as we think, upon demand for the same.” The indictment in the case of Cody v. State, 100 Ga. 105 (28 S. E. 106), charged as follows: “For that the said Pearce Cody, on the 21st day of September, in the year 1896, in the county aforesaid, did then and there unlawfully, after having been intrusted by Bob Cherry, the owner thereof, with ninety dollars in paper money of the value- of ninety dollars, and two dollars in silver money, of the value of two dollars, for the purpose of holding and keeping said money for said Bob Cherry, he, the said Pearce Cody, did fraudulently convert the said money to his own use and did otherwise dispose of said money without the consent of said Bob Cherry, the owner thereof, and to the injury of him the said Bob Cherry, and without paying the said Bob Cherry the said money or the full market value thereof, on demand, which demand was made.” To this indictment -the defendant, Cody, demurred, and the Supreme Court, in passing upon the question raised, said: “The first ground of demurrer raises the question, whether one who is charged with having been intrusted with money by the owner to hold and keep for him, and who fraudulently converts the same to his own use, is guilty of any violation of the laws of the State. It is true that the bill goes further and charges that the bailee did otherwise dispose of the money without the consent of the bailor- and to his injury and without paying to the bailor on demand said money, or its full market value; but we regard the latter part of the charge as surplusage and as adding no strength to the preceding charge contained in the bill of indictment. Section 191 of the Penal Code' . . [now section 189] provides for the punishment of any factor, commission merchant, warehouse-keeper, wharfinger, wagoner, stage-driver, or common carrier on land or water, or any other bailee with whom any money or any other thing of value may be intrusted or deposited, who shall fraudulently convert the same or any part thereof to his own use, or shall otherwise dispose of the same or any part thereof without the consent of the owner or bailor, to his injury, and without pay-. ing the owner or bailor, on demand, the value or market price of the same. It is manifest from a careful reading of the section above referred to that it provides for two distinct offenses: (1) If any of the bailees named, with whom any money or any other valuable thing” shall be intrusted or deposited, shall fraudulently convert the same or any part thereof to his own use, the statute is broken. (2) If any of such bailees with whom the property shall be intrusted or deposited shall dispose of the same to the injury of the bailor (otherwise than to fraudulently convert it to his own use) without the consent of the bailor, and without paying to the owner or bailor, on demand, the full value or market price, he has committed an offense against which' the statute provides. Each of these acts is made a distinct offense, punishable as provided in the section. McCoy v. State, 15 Ga. 205; Soule v. State, 71 Ga. 270.”

While the learned trial judge was a member of this court, the court, in the case of Raiden v. State, 1 Ga. App. 532 (57 S. E. 989), said: “The Penal Code, § 191 [now § 189], makes two kinds of acts criminal: (1) that in which the party fraudulently converts to his own use the money or article intrusted; (2) that in which he otherwise disposes of the same without the consent of the owner 'or bailor, and to his injury, and without paying to such owner or bailor on demand the full value or market price thereof. In the first kind the crime is complete as soon as the party -fraudulently converts the article to his own use. McCoy v. State, 15 Ga. 211. In the second kind the crime is complete (the other elements being present) when demand is made and the full market value or price is not thereupon paid. Yenue for the criminal prosecution lies only in the county where the crime becomes completed in one of the methods above stated.”

I do not think that Sanders v. State, 86 Ga. 717 (12 S. E. 1058), or Keys v. State, 112 Ga. 392 (37 S. E. 762, 81 Am. St. E. 63), is authority to the contrary. In the Sanders case the indictment charged the defendant with fraudulently converting to his own use certain property or otherwise disposing of the same. The indictment in that case was bad because he was not charged positively with any offense. In the Keys case the indictment was framed under section 192 (then section 194), and charged the defendant with having been intrusted with money for the use and benefit of a named person, and with fraudulently having converted the same to his own use to the injury of and without the consent of the bailor. The court held that the allegation, “without the consent of the owner,” was surplusage. There is only one count in the Sanders case, and only one count in the Cody case, and only one count in the Keys case. Fraudulent conversion was alleged in each of these cases. Now, in the Innes case we find not one count, bu.t four counts, based on kindred statutes. We find in effect four separate indictments. The crime charged in one of. the counts, or . one of the indictments, admittedly is not proved, yet a verdict of guilty is allowed to stand, upon the ground that the fourth count in this indictment is mere surplusage. It is my opinion that the charge of the trial court, that “demand in this case is unnecessary under the law and evidence applicable thereto,” not only did not-serve to eliminate the fourth count in this- indictment, but was erroneous for three reasons: (1) Because, before a conviction could be had on the fourth count, proof of demand was necessary. ' (2) Because,' under the majority opinion in this case, it would amount to an expression of an opinion that fraudulent conversion had been shown; especially as the court had just charged the jury that they could convict on either or all the counts in the indictment. (3) Because the court had already charged the jury, “If you find this defendant guilty on either one of these counts, you would express in your verdict the count upon which you find a verdict of guilty. For instance, if you find him guilty on the first count, say, ‘We, the jury, find the defendant guilty on the first count;’ and so with the other counts, if you should find him guilty on any one of the other counts, and not guilty on others. But I charge you that while the indictment sets forth the offense in different counts, it merely charges substantially one offense against this defendant and the other defendant. And if you believe beyond a reasonable doubt, from this evidence, that all the counts were violated, not only the general count but the specific count (one of the counts being specific, giving the amounts and dates when the money is alleged to have been obtained, and the fourth count alleging demand and refual to pay), you could find a general verdict of guilty.”/ An instruction that a verdict of guilty could be found on the fourth count without proof of demand, under the facts of this particular case, in effect said to the jury: Fraudulent conversion to the defendant’s own use has been proved; therefore demand is unnecessary. Did the charge of the court eliminate the fourth count? I can not agree that it did.

2. There are other exceptions to the charge of the court which are not without merit.

3. In the opinion of the writer the bailment as alleged in the four counts of the indictment is not proved; neither is the fraudulent conversion shown as alleged; and neither is the venue proved.

In my judgment the general verdict of guilty under the evidence is not authorized. Judex damnatur cum nocens absolvitur; but the guilty must be convicted according to law.