author: Bloodworth, J. Per Curiam.

text:
    9041.
    CALDWELL LUMBER COMPANY et al. v. WRIGHT.
    Where a petition for injunction is filed and the prayer therein for an interlocutory injunction is denied, and the judge passes an order authorizing the plaintiff, on filing a bill of exceptions, to give a supersedeas bond to the defendant, conditioned to pay the defendant a certain sum of money “in the event said judgment is not reversed,” and such a bond is given, the bond is breached when the appellate court, in its judgment on the writ of error, does riot reverse the judgment of the lower court.
    Decided May 16, 1918.
    On rehearing August 2, 1918.
    Action on bond; from city court of Thomasville—Judge W. H. Hammond. June 28, 1917.
    The petition alleges: (1) The defendant, Bryant H. Wright, is indebted to petitioners in the principal sum of $5,316.66, with interest thereon, upon a certain supersedeas bond. (2) On May 10, 1916, there came on for hearing before Hon. E. E. Cox, judge of the superior courts, the case of' S. E. Hutchinson against the persons named as plaintiffs herein, the same being a petition to the superior court of Grady county to enjoin certain condemnation proceedings then being prosecuted by Caldwell Lumber Company (plaintiffs herein) in an effort to extend a tram-road across the land of said Hutchinson. (3) On said hearing the temporary restraining order theretofore granted was dissolved and an interlocutory injunction was denied. (4) Hutchinson thereupon requested Judge Cox to pass an order allowing him to give a supersedeas bond in said case, preserving the status pending a re'view by the Supreme Court of the judgment denying the interlocutory injunction. (5) A bill of exceptions having been sued out by Hutchinson, Judge Cox, on May 18, 1916, passed an order as shown by exhibit A, attached hereto. (6) On filing the said bill of exceptions, Hutchinson filed his bond, with said B. H. Wright as security, as shown by exhibit B, attached hereto; which bond was duly approved by the clerk of the court, as shown by Ms entry thereon; the bond so filed being intended as a compliance with the said order of May 18, 1916, and to operate as a supersedeas of the said judgment denying the injunction sought by Hutchinson. (7) Because of said bond being filed and approved as aforesaid, the said status has been preserved, and said bond has accomplished the purpose for which it was intended. (This paragraph was amended by adding: “the condemnation proceedings having been delayed by the-making and filing of said bond and as contemplated by the said order under which the bond was made.”) (8) The Supreme Court of Georgia has decided the case made by the said bill of exceptions, and has affirmed the judgment therein complained of,'and has refused to reverse the same. (9) Exhibit C attached hereto is a correct copy of the 'remittitur from the Supreme Court, with the order -of the superior court making the remittitur the judgment of the superior court in said case. (10) In view of all the said exhibits, particularly said order of May 18, 1916 (exhibit A), defendant is indebted to plaintiff in- the sum of $500 per month from the date of said judgment to the date the remittitur was made the judgment of the trial court,—that is to say, from May 10, 1916, to April 7, 1917, or the sum set forth in paragraph 1 of this petition, the sole condition of said bond being the failure of said Hutchinson to obtain a reversal of said judgment of May 10, 1916. (11) The said Hutchinson is a nonresident of this State, and can not be served with process of- this court; and both he and said Wright fail and refuse to pay the said sum now due on said bond, or any. part thereof. Wherefore peti-' tioners pray process, etc.
    Exhibit A, the order of Judge Cox, recites, that, whereas the restraining order was dissolved and any further interlocutory injunction denied 'in the case stated therein, and the plaintiff has sued out a "writ of error to review said ruling, and desires a super-' sedeas of said judgment pending a decision by the Supreme Court, “and whereas the damage to said Caldwell Lumber Company, approximately $500.00 per month, that will be caused by any further delay of their condemnation proceedings are impossible to [of?] exact computation, it is therefore ordered,” etc. The remainder of the order, so far as material, and the material part of the bond are set out in the following opinion. The judgment of the Supreme Court, as shown by exhibit C, was “that’the judgment of the court below be affirmed with- direction that further proceedings in the condemnation ease be stayed to await the final determination of the issues as to whether or not the Caldwell Lumber Company is entitled to condemn the land of Hutchinson involved in the equity cause pending in Thomas superior court between Hutchinson' and the Caldwell Lumber Company.”
    The demurrer was on the following grounds: (1) No cause of action is set forth. (2) It is- not alleged that the condition of the bond was violated, in that it is not alleged that the condemnation proceedings were delayed. , (3) It is not alleged that the condemnation proceedings were legal or that the plaintiffs in this cause had á right to condemn the lands of Hutchinson. (4) The petition does not show that the damages covered by the order of the court, to wit, “that will be caused by any further delay of their condemnation proceedings,” have been suffered by the plaintiffs. (5) “The remittitur from the Supreme Court attached to the petition showing that the judgment in the case of Hutchinson vs. Copeland et al. was affirmed with direction that further proceedings be stayed to await the final determination of the issue as to whether or not the Caldwell Lumber Company is entitled to condemn the land, the petition does not show the final determination of the issues as to whether or not Caldwell Lumber Company is entitled to condemn the land of Hutchinson, nor does it allege that said issues have been terminated, or, if terminated, in what manner.” (6) N° C0Py °f the petition in the case of Hutchinson vs. Copeland et al., or of the proceedings between Hutchinson and Caldwell Lumber Company, pending in Thomas superior court,, referred to in the remittitur, is attached to the petition. (7) The petition does not show that the conditions of the bond have been violated, in that it does not allege that the condemnation proceedings were delayed.
    The judgment on the demurrer is: that, “the plaintiff failing to amend to meet the 5th paragraph of the demurrer, said paragraph is sustained; and the first paragraph'is likewise sustained; and, the plaintiff having amended, it is ordered that grounds numbered 2, 3, 4, 6, and 7 of the demurrer are overruled;” and that the petition be dismissed.
    In the argument and in the motion for a rehearing it was contended that in a. suit on a bond it is necessary to allege damage specifically; that under the Civil Code (1910), ,§ 5940, the judgment should be “for the amount of damnification found by the verdict of the jury, and not for the penalty” named in the bond; that under § 4391, even though the penalty' in a bond be called liquidated damages, yet if it appears unreasonable, the law will give only actual damages, and, where the damage is capable of computation and not uncertain, such stipulations will be declared to be penalties; that where there.is no damage, there can not be liquidated damages; that demurrer is adequate to raise the defense of non-existence of legal damage, and it is not necessary to plead it affirmatively; .and that the judgment of the Súpreme Court, referred to, while technically an affirmance, was in substance a judgment of reversal, on account of the direction given in it. Cited in the motion for rehearing, in addition to the code-sections cited.above: Hutchinson v. Caldwell Lumber Co., 146 Ga. 356; Sanders v. Carter, 91 Ga. 450; Lacey v. Hutchinson, 5 Ga. App. 865, 868; 9 Corpus Juris, 129; 14 Ruling Case Law, 474, § 175; note to Shackleford v. Bennet, 15 Am. & Eng. Cases, 721; Vicksburg Waterworks Co. v. Vicksburg, 33 L. R. A. (N. S.) 844; Jewel Tea Co. v. Stewart, 142 Iowa, 353 (120 N. W. 962).

      M. L. Ledford, G. B. Hay, for plaintiffs.

      T. S. Hawes, LiitlPowell, Smith & Goldstein, for defendant.
   Bloodworth, J.

Certain parties, “suing for the use of the Caldwell Lumber Company,” brought an action against Bryant H. Wright on a supersedeas bond, given in the case of Hutchinson v. Caldwell Lumber Company, which was a' petition for injunction against certain condemnation proceedings. The order authorizing the giving of the bond contained the following: “If the plaintiff will maleé and file with the clerk of Grady superior court, at the time of filing his bill of exceptions, a bond with security approved by said clerk, jointly and severally obligating that in the event said judgment is not reversed,-then said obligors will pay to said Caldwell Lumber Company the sum of $500.00 per month from the date of said judgment to the date the remittitur from the Supreme Court may be made the judgment of the trial court, then, upon the filing and -approval of such bond, the matters in controversy in plaintiff’s petition shall remain unchanged and the present status shall be preserved until said -writ of error is finally disposed of. Should said bond be given and the judgment complained of he reversed, then no recovery upon said bond shall be had; but if said judgment is not reversed, said sum of $500.00 per month shall become collectible as liquidated damages. , If -the plaintiff fails to make and file such bond, then the Caldwell Lumber Company may make and file a bond with security approved by the clerk, jointly and peveijally obligating that, in, the event said judgment is reversed, they will pay to said S. E. Hutchinson all damages he may have sustained on account of their having carried on their condemnation proceedings during the pendency of said cause in the Supreme Court; and, upon the filing and approval of such bond, the defendants shall proceed as if said suit had not been filed.” After reciting the provisions of this order, the bond proceeds as follows: “Now, therefore, we, S. E. Hutchinson, principal, and B. H. Wright, security, do acknowledge ourselves jointly and,severally held and bound unto [the defendants in the injunction suit], their heirs and assigns, in the sum of $500.00 per month, conditioned to pay such sum to the defendants each and every month that the condemnation ’proceedings are delayed by virtue of said cause being carried to the Supreme Court, in the event plaintiff fails in reversing said cause.” The Supreme Court did not reverse the judgment complained of, the remittitur from the Supreme Court was made the judgment of the trial court, and suit was brought on the bond against the surety only, as the principal was a non-resident. A demurrer to the petition 'was filed, certain grounds of which were sustained, and the petition was dismissed. This ruling is assigned as error.

In the order of the judge in the case of Hutchinson ,v. Caldwell Lumber Company, as shown above, the plaintiff was not directed to give a bond, but was fallowed the privilege of giving one, the order reciting, “Iff plaintiff will make and file with the clerk of Grady superior court, at the time of filing his bill of exceptions, a bond with security approved by said clerk, jointly and severally obligating that in the event said judgment is not reversed, then said obligors will pay to said Caldwell Lumber Company the sum of $500.00 per month from the date of said judgment to the date the remittitur from the Supreme Court may be made the judgment of the trial court. . . Should said bond be given and the judgment complained of be reversed, then no recovery upon said bond shall be had; but if said judgment is not reversed, said sum of $500.00 per month shall become collectible as liquidated damages.” (Italics ours.) The plaintiff in that case availed himself of the permission granted him by the court, 'and, with the defendant in error in the instant case, as his surety, voluntarily gave a bond to the' defendants in the former case (the plaintiffs in error in the instant case), “conditioned to pay such sum to the defendants each and every month that the condemnation proceedings are delayed by virtue of said cause being carried, to the Supreme Court, in the event plaintiff fails in reversing said cause.” (Italics ours.) .The trial court had the right to fix the terms upon which the bond was given. Civil Code (1910), § 5502; Prater v. Barge, 139 Ga. 801 (78 S. E. 119); Mills v. Boyd, 146 Ga. 60 (90 S. E. 378). Such a bond as above referred to would be a good voluntary bond. Thompson v. Hall, 67 Ga. 627 (2 a). Hutchinson; as principal, gave the bond sued on, and ¿by reason thereof and under the terms of the order obtáined a supersedeas. The principle stated in the, 2d headnote of the decision in the case of Waycross Air-Line R. Co. v. Southern Pine Co., 111 Ga. 233 (36 S. E. 641), is applicable in the instant case. In the opinion in that case (p. 238) ,we find the following: “It could not exercise the right conferred upon it by the order of the court, without submitting tq the terms imposed upon it by that order. Submission "to, these terms was a condition precedent to the.exercise of the right. It is too late, after exercising the right conferred upon it by the order, to question the terms under which it was exercised, or the power of the court to enforce them.” The order of the court in the instant case provides that “in the event said judgment is not reversed, then said, obligors will pay to said Caldwell Lumber Co. the sum of $500.00 per month from the date of said judgment to the date the remittitur from the Supreme Court may be made the judgment of the trial court.” Construing the order and the bond together, as they must be construed, it is clear that the bond was breached when the Supreme Court failed to reverse the judgment of the lower'court, and that' the obligee in the bond would have the right to bring suit when the remittitur from the Supreme Court was made the judgment of the trial court. The' judgment in the instant case, sustaining certain grounds of the demurrer and dismissing the petition, deprived the plaintiffs of this right, and must be

Reversed.

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

ON REHEARING.

Per Curiam.

Jn its decision in this case the court passed upon such questions only as were raised by the demurrer and the exceptions to the ruling thereon. The decision went only to the extent that the petition set out a cause of action. The other questions raised by the motion for rehearing were' not passed upon, and are for determination in the future progress of the case.

Judgment adhered to.


source: Caselaw Access Project

author: Luke, J. Jenkins, J.,

license: Public Domain

text:
    9075, 9093.
    RHENEY v. ANDERSON; and vice versa.

   Luke, J.

1. Where a negotiable promissory note purports to have been given -“for value received,” and suit is brought thereon by the payee, the maker may plead, and prove by parol, that the note was executeá without consideration as between the parties, and for the sole purpose of enabling the payee to indorse 'it to a third person as collateral security for a debt which the payee desired to contract and which he promised to pay without assistance from the maker of the note. Such a note is a mere accommodation paper, and, while in the hands of the person to be accommodated, is without consideration and binds nobody. Civil Code (1910), § 3541; Hall v. Bank, 71 Ga. 715; Farrar v. Bank, 90 Ga. 331 (17 S. E. 87); Smith v. Downing Co., 21 Ga. App. 742 (95 S. E. 19); Brown v. Smedley, 136 Mich. 65 (98 N. W. 856); Chicago Title & Trust Co. v. Boody, 165 Mo. 197 (65 S. W. 303). It would he otherwise if the note were in the hands of an indorsee who received it for value.

Decided June 12, 1918.

Complaint; from Richmond superior court—Judge H. C. Hammond. July 14, 1917.

William H. Fleming, for Rheney.

Rogers & Knox, Samuel E. Myers, for Anderson.

2. The court did not err in overruling the demurrer to the plea setting up such a defense.

3. Under the conflicting evidence, it was for the jury to say whether or not the defendant had established her plea; and therefore the court * erred in directing a verdict for the plaintiff.

•Judgment reversed on the main hill of exceptions, and affirmed on the cross-hill.

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

Jenkins, J.,

'concurring specially. Being originally doubtful as to the. correctness of the rule announced in the first of the foregoing headnotes, and having held back a decision of the case in order that I might give a more careful consideration to the question involved I desire to state wherein, as I saw it, the difficulty of the proposition lay, and why I have finally reached the same' conclusion arrived at by the other members of the court. It is a well-recognized principle of law that, as between the original parties, the consideration of a contract is .ordinarily open to inquiry for the purpose of showing either that the consideration was originally illegal and the resultant promise therefore void, or that the consideration has subsequently failed in whole or in part, so as no longer- to support the promise as made. Not only does this rule apply where the consideration of the instrument is ambiguous upon its face, but, even though the consideration should be set forth in the writing, it is still permissible as a matter of defense to plead by way of failure of consideration a breach of a contemporaneous oral warranty, provided the instrument does not purport to integrate within itself the terms of the agreement. Pryor v. Ludden & Bates, 134 Ga. 288 (67 S. E. 654, 28 L. R. A. (N. S.) 267); Bond v. Perrin, 145 Ga. 200 (88 S. E. 954), s. c. 18 Ga. App. 179 (89 S. E. 79). It has also been uniformly held that one is not precluded from showing by parol that the real consideration of a contract is in fact different from the one actually recited in the instrument, for the purpose of proving that what is thus shown to be the true consideration has failed. Anderson v. Brown, 72 Ga. 713; Burk v. Napier, 106 Ga. 327 (32 S. E. 134); Camp v. Matthews, 143 Ga. 393 (85 S. E. 196); Simmons v. International Harvester Co., 22 Ga. App. 358 (96 S. E. 9). The rule just stated is, however, applicable only to contracts in which the consideration is thus stated by way of mere recital; for if it be so expressed as to constitute it one of the terms and conditions of the agreement, it is not permissible to set up another and different consideration for the purpose of showing a failure of the latter (Atkinson v. Lanier, 69 Ga. 460 (2); Wellmaker v. Wheatley, 123 Ga. 201, 51 S. E. 436; Goette v. Sutton, 128 Ga. 179 (3), 180, 57 S. E. 308; Coldwell Co. v. Cowart, 138 Ga. 233, 236, 75 S. E. 425; Thrower v. Baker, 144 Ga. 372, 87 S. E. 301); but even then it is still competent to show that the true basis of the contract was without actual consideration of any sort whatever, and that the resultant promise is for that reason wholly void. Hawkins v. Collier, 101 Ga. 145 (28 S. E. 632).

But while all this is true,, and although great latitude is thus allowed in attacking the legality of a promise by proving it to be unsupported by any valid and legal consideration, it is never allowable, under the guise of inquiring into the consideration, to vary or contradict by parol the written terms of the promise itself. Brewer v. Grogan, 116 Ga. 60 (42 S. E. 525); Byrd v. Marietta Fertilizer Co., 127 Ga. 30 (56 S. E. 86). Thus, while the validity of an unconditional promise in writing may be attacked on the ground that it is not supported by á valid consideration, such an inquiry into the consideration can not be used as a pretext to alter or in any way to vary the express terms of the promise itself. As was said by Judge McCay in the case of Boynton v. Twitty, 53 Ga. 214, and quoted by Mr. Justice Cobb in Byrd v. Marietta Fertilizer Co., supra, “It is sometimes difficult to say when the parol evidence offered is mere explanation of the consideration, and when it is an attempt to attach a condition to the contract; and it is hard to reconcile all the cases, for this reason. The line of distinction is often so dim that one mind sees the case on one side of it, and another mind sees it on the other. Without doubt, you may always, in the case of a promissory note, show by parol what was the true consideration; that is, what the maker got, or the payee suffered or lost, or what the motive that led to the making of the paper. If this motive was not in law a valid consideration, or has failed, or if the payee on his part has violated some undertaking, expressed or implied by the law, on his part, so that the consideration has failed, or has proved to be no consideration, then the whole facts may be shown by parol. But if the thing proposed to be proven attaches a condition to the note, as that, in a certain event it is not to be paid, or is to. be paid at a different time from the time stated, or not to be paid in money, etc., then parol evidence is-inadmissible.”

In the instant case whát is the purport of the plea? Is it intended simply to deny the binding effect of an admitted unconditional promise in writing, for the reason that the promise is unsupported by any lawful consideration as between the parties; or does it go further, in that it must also necessarily seek to vary the explicit terms of the written instrument by showing that the absolute promise to pay does nót itself speak the truth of the contract, but that the true purpose of the agreement was one which it was never intended should be embraced within the terms of the note as sued on? In the ease of Boynton v. Twitty, supra, it was held that the defendant should be allowed to prove that the note sued on was not for any consideration which passed or which existed at the time it was given, but was executed for the purpose of indemnifying plaintiff against loss in a certain partnership business, and that he had suffered no loss. In that case Judge McCay concludes his opinion by saying that such a - transaction stands on the footing of a note or acceptance placed as collateral to cover future advances, in which cases the note is good only for the amount of the advances. But this holding in the Boynton case is doubted and criticised in the Byrd case. In the latter case the ruling in the headnote is as follows: “To an action against the maker of negotiable promissory notes, a plea that he executed them with the understanding that he was not to be bound and that the notes were simply security for payments of the proceeds of a sale of an article which the plaintiff claimed had been sold to the .defendant and the notes taken for the purchase-price, and the defendant claimed was simply in his possession as the property of the plaintiff to be sold for his account, constituted no defense-to the action,, when there was no denial that the notes were made and delivered, and no allegation that the understanding or purpose for which the notes were given was evidenced by any writing, or that such understanding was omitted from the notes by fraud, accident, or mistake.” In the opinion in'that case the Supreme Court, through Mr. Justice Cobb, speaks as follows: “But it is said that the consideration of a note can always be inquired into, and the consideration is expressed in these notes only by the phrase, ‘for value received/ which is a patent ambiguity, and therefore the actual consideration of the notes can be shown. It is undoubtedly the general' rule that the consideration of a contract can always be inquired into where the controversy is between the original parties. But is this an effort to inquire into the consideration? Where the promise as stated in the writing is admitted, the promisor can show that there was no consideration; or that there was a consideration which had failed wholly or in part, and therefore the promise is no longer supported, and must fail either in whole or in part, according to the facts. But this case does not involve merely the question of what is the consideration for the promise, or whether there was a consideration, or whether, being such a consideration, it has failed in whole or in part. The purpose of the plea is to show that the promises in the writing were not the promises really made. The promise in the writing is not admitted. .The plea denies it. The promise in the writing, is to pay a certain sum of money absolutely and at all events.' The plea alleges an agreement to pay another sum, the amount of which is dependent upon conditions. The consideration of a contract may be always inquired into in order to show that the promise is no longer binding according to its tenor; but in inquiring into the consideration the promisor can not deny that he made the promise evidenced by the writing.”

The same principle was discussed by Chief Justice Bleckley in the case of Hirsch v. Oliver, 91 Ga. 554 (18 S. E. 354), wherein this learned jurist used the following language: “The plea which sought to contradict the notes by setting up an understanding that the maker was not to be bound, that the notes were executed for a purpose other than that of binding him to pay money—a purpose wholly at variance with their plain tenor and effect, contained no suggestion that the understanding and purpose alleged were evidenced by any writing, or that anything was omitted from the notes by fraud, accident, or mistake. It contained no denial of the making of the notes, but simply sought to run over them and crush them by an alleged contemporaneous understanding or agreement in conflict both with their letter and legal effect. This plea presented no valid defense to the action,, and there was no error in striking it.” In the case of Dendy v. Gamble, 59 Ga. 434, a joint suit was entered against the principal and the surety on a note, and the latter undertook to plead that he signed the note only to encourage the principal to pay it, and that it was well understood by the payee and the surety that no liability was to attach to the latter. The ruling in that case was to the effect that since the note was an absolute promise to- pay, without written qualification or modification of its terms, and since no fraud or mistake in reducing the real contract to writing was set up, the plea failed to show a valid defense. In the opinion the court said: “The note, however, is absolute and unconditional. It is an express contract, on the part of both principal and-surety, to pay a sum of money on or before a given day, less than a month after its date. When a man’s real contract is not to pay, what sense or reason is there in signing a written contract that he will pay? To allow such a defense as this to be effective would be to overthrow the most trustworthy monuments of the engagements of men to men. What security would the most solemn writings any longer afford'? In striking the plea, on demurrer, the court made the- only proper disposition of it.” It will be seen that the difficulties referred to by Judge McCay are real ones, and that it is ofttjmes hard indeed to determine whether the parol evidence is offered merely s in explanation of the consideration, or whether it must really be taken as an unauthorized attempt to vary the expressed terms of the contract itself. ' " ' -

It would seem to be the position of counsel for the plaintiff in error that the question -involved in the instant ease can not be stated so narrowly as it is thus sought to do. The underlying principle which, he seeks to invoke is that “If the contract sought to be set up in defense is not one of a kind that the parties intended should be embraced or integrated in the written contract, or that could not properly have been embraced in that contract without defeating its purpose,” then the general rule that parol evidence is inadmissible to vary the terms of a written contract does not apply; and lie cites in support of this position, as applied to the facts here involved, the cases of Pryor v. Ludden & Bates, and Bond v. Perrin, already referred to. It does not appear to the writer, however, that any question was involved in those cases concerning the right of the promisor to vary the express terms of his absolute promise to pay. In each of those cases such a-promise was admitted, and the defense was simply and solely a failure of the consideration under the terms of an oral warranty. The rulings were to the effect that although a purchase-money note might specify the consideration for which it was given, yet if the writing does not purport to express all the terms of the contract, then the terms so omitted may be supplied by parol, but that none of such terms which may be actually embodied in the instrument, either expressly or by implication, can be added to or varied by parol. Here, in this case, suit is brought upon an absolute and unconditional promise to pay. It does not seem that under the guise of inquiring into the consideration of such a plain and unambiguous contract in writing the defendant should be allowed to vary the express terms of the promise itself. But is such the necessary consequence of the plea herein filed? In the three cases from which we have previously quoted, the court held that it was. In the Byrd case, the Dendy case, and the Hirsch ease the effect of the plea was to dispute the terms of the promise itself. In none of them was any attempt made to show that the contract was without such a consideration as could support the promise as made between the parties to the suit, and in each of these eases it was therefore necessary to attack the terms of the promise itself. In the Byrd ease it was pleaded that the defendants were only to pay whatever amounts were realized from the sale of the fertilizer which had been shipped to them, and not the amount’ called for by the note; in the Dendy case that although he became the surety for his principal unto the promisee, yet it was agreed that he was not to be actually liable according to the tenor of his obligation; and in the Hirsch ease it does not appear that as between the parties the promise was without consideration, but appears only that the'defendant sought to establish a contemporaneous understanding in conflict with his promise, to the effect that lie was not to be bound thereby. In the present case, if the plea sought to be established did not show that the note sued on was, as between the parties, without any consideration, and if, in-order to escape liability, it was necessary to go further and attack the terms of the promise itself, then, under the plain authority of these precedents, she would be precluded. If the consideration is good, the promise must be enforced as it is expressed; while, on the other hand, if the contract be without consideration, it matters not how absolute the admitted promise may be; as a irudum. pactum it can not avail. The defense which is claimed in this case is not dependent upon an unauthorized attack upon the terms of an absolute and unambiguous promise; but the purport of the plea is that, while admitting the promise, -it is nevertheless void, since, as between the parties, it is without the support of any valid consideration. See also Mimbs v. Stephens Hardware Co., ante, 88 (95 S. E. 377).


author: Wade, C. J.

text:
    9080.
    Georgia Southern & Florida Railway Co. v. Corry.
   Wade, C. J.

1. “Where sleeping-cars not owned by the railway company are a part of a train, and are attached to it presumably in the interest of the railwáy company, the railway company is still bound by its ordinary obligations and liabilities as a common carrier of passengers to those who make use of the accommodations afforded by the sleeping-cars. In all matters relating to the passenger’s saféty, the conductor, the porter, and other servants of such cars are the servants of the company of whose train the ears are for the time being a part.” Mize v. Southern Ry. Co., 15 Ga. App. 265 (4), 266 (82 S. E. 925), and numerous cases there cited.

2. Where one purchased a ticket entitling him to occupy a berth in a Pullman car whigli constituted a part of the train in which he was a . passenger over the line of the railway company, and the porter in charge of the sleeping-car, upon whom rested the duty of arousing each passenger therein in time for him to prepare to disembark at his destination, though explicitly and repeatedly requested to so awake him and though promising to arouse him at his destination, negligently failed to do so, and he was carried beyond it and was put off, by the conductor in charge of the train, at a small station - 20 miles beyond his destination, where he was compelled to remain for some hours, without sufficient protection from the inclemency of the weather, by reason of which he contracted a severe illness and suffered physical and mental distress, a right of action was set forth against the railway company.

(a) The porter and other servants of the sleeping-car were servants of the carrier for the time being as to all matters relating to the Safety of the passengers therein.

Decided June 12, 1918.

Rehearing denied July 9, 1918.

Action for damages; from city court of Tifton—Judge Price. July 16, 1917.

J. E. Hall, Guyton Parles, G. J. Bloch, B. D. Smith, for plaintiff in error.

J. S. Ridgdill, B. G. Williford, contra.

(b) The injury sued for did not result through an intervening agency “not invoked or brought into play by the defendant,” but flowed directly from, and was the natural or proximate result of, the alleged negligence on the part of the carrier. Western & A. R. Co. v. Jackson, 21 Ga. App. 50 (93 S. E. 547, 551).

3. The court did not err in overruling the general demurrer and the various special demurrers to the petition as finally amended.

Judgment affirmed.

Jenkins and Luke,- JJ., concur.


text:
    9084.
    CENTRAL OF GEORGIA RAILWAY COMPANY v. DEAS.
    1. The duty devolving upon common carriers to exercise extraordinary diligence in receiving, keeping, carrying, and discharging passengers remains applicable where in the course of the transportation the coach in which the passenger is being conveyed is detached from the train and placed for the night upon the railway’s siding; and it was a question for the jury to' determine, under the pleadings and evidence of the case, whether the defendant was guilty of negligence in leaving the lid or drop-door of the vestibule platform open and unguarded, without in any way sufficiently lighting the platform so as to apprise passengers passing out upon it of the danger which would be encountered by reason of the opening thus caused by the removal of the drop-door.
    2. In the absence of a timely request, it is not ordinarily reversible error for the court to omit to charge upon the burden of proof; and in order for such failure to justify setting aside a verdict, the rule is that the complaining party must show resulting injury. Small v. WilUains, 87 Ga. 681 (13 S. E. 589) ; Southern By. Go. v. Wright, 6 Ga. App. 172 (64 S. E. 703.).; Hickman V. Bell, 10 Ga. App. 319 (73 S. E. 596); Brooks V. Griffin, 10 Ga. App. 497 (73 S. E. 752) ; Whittle v. Central of Ga. By. Go., 11 Ga. App. 257 (74 S. B. 1100). Ordinarily the burden of proof lies upon the plaintiff, who, alleging certain facts to exist, claims a right to recover against'the defendant (Civil Code of 1910, § 5746) ; but in a suit for damages against a railway company, when it is shown that the injury complained of was occasioned by the operation of the defendant’s ears, the legal and statutory presumption arises that it was occasioned by the company’s negligence; and in such a case the law as to this presumption, as embraced by section 2780 of the Civil ■Code (1910), must be given in charge to the jury, without any request-to that effect (Killian v. Georgia Railroad Co., 97 Ga. 727, 25 S. E. 384) ; but where-the defense relied on was that the defendant was without fault,and that the injury to the plaintiff was not occasioned by the operation of the defendant’s ears, but was due solely to the negligence of the plaintiff himself, and the judge instructed the jury that their verdict must be determined by the' evidence produced upon the issues made, and correctly charged them upon the rules as to the preponderance of testimony, the defendant can not complain that the judge did not take up the particular points of contest made by the evidence, and charge in regard to the shifting of the burden as to such points.
    3. When the court gives in charge to the jury an erroneous instruction tending to mislead them as to the law on a material issue in the case, the fact that a different and correct instruction as to the same matter is given in another part of the charge will not nullify or cure the error.
    4. There is no merit in the assignments of error other than those dealt with above. ' The court erred in overruling the motion for a new trial.
    Decided June 12, 1918.
    Action for damages: from city court of Milieu—Judge Dekle. July 14, 1917.

      Saffold & Jordan, A. B. Lovett, for plaintiff in error.
    O. H. & R. 8. Cohen, contras
   Luke, J.

Some elaboration • of the principle embodied in the third headnote, as applied to this case, is deemed appropriate. In an action for damages by a passenger against a railway company, when it is established that thé personal injuries complained of were , qccasioned by the operation of the defendant’s locomotives or cars, a presumption of liability arises against the company; which prima facie case, however, is rebutted if from the evidence of the defendant, or from that of the plaintiff himself, it appears that any one of the following defenses is established.: (1) that the injury was done with the consent of the plaintiff, or was caused by his own negligence (Civil Code of 1910, § 2781); (2) that the plaintiff could by ordinary care have avoided the consequences to himself caused by the defendant’s negligence after such negligence had, or in the exercise of ordinary diligence should have, become known (Civil Code of 1910, § 4426); or (3) that the defendant had in fact exercised extraordinary diligence in protecting the person of the plaintiff. Civil Code (1910), §§ 2780, 2714; Douthitt v. L. & N. Railroad Co., 136 Ga. 351 (71 S. E. 470).

The instruction complained of in the seventh ground of-the motion for a new trial is as follows: “Failure to exercise ordinary care upon the part of the plaintiff, after negligence is apparent, or should have been reasonably apparent to him, or apprehended by him, will preclude a recovery in any [italics ours] amount by the plaintiff, if there is no negligence [italics ours] attributable to the defendant.” It is manifest that the.trial judge committed error in this particular portion of his charge. In the first place, the mere failure of the plaintiff to exercise ordináry diligence in avoiding the consequences of the railway company’s negligence after it had or should have been known may or may not preclude a recovery by him, since it is only when by the exercise of such care on his part the consequences of such negligence would have been avoided that his failure in this respect will altogether prevent a recovery. Americus &c. Railroad Co. v. Luckie, 87 Ga. 6, 7 (18 S. E. 105). But the error in the instruction complained of in the motion for a new trial, and which it is insisted injuriously affected the rights of the defendant company, consists in the last qualifying clause of the excerpt, by which the bar to the plaintiff’s right of recovery on account of his failure to exercise such ordinary care is limited to where' there is no negligence attributable to the defendant. To us it is apparent that, despite this error, the trial judge correctly understood, and had in mind, the true principle of law here involved, but the question is, could tlie jury have been confused or misled by the incorrect statement as made, or do the rulings of the court demand a reversal because of this error? It is true that the judge, upon the same subject and in the same connection, continued his charge as follows: “The duty imposed by law upon persons does not arise until the negligence of the other party exists, until an ordinary prudent person under like circumstances would have reason to apprehend if negligence there was. If the railroad company is negligent in the particulars alleged in the petition, and the plaintiff is also negligent, and his negligence along with the negligence of the defendant, both, contributing together, caused the injury, and if it would not have been caused by the negligence of the defendant unless the plaintiff also had been negligent, and his negligence contributed as a direct cause of the injury, that would make a case of contributory negligence where the plaintiff would not be entitled to recover of the defendant.” But in Savannah, Florida & Western Ry. Co. v. Hatcher, 118 Ga. 273 (45 S. E. 239), the Supreme Court said that “The jury must take the whole charge as the law, and it is not for them to select one part to the exclusion of another, nor to decide whether one part cures or qualifies another, without being instructed so to do by the judge.” In Western & Atlantic R. Co. v. Clark, 117 Ga. 548 (44 S. E. 1), it was said: “Where an erroneous rule of law is given to the jury,on a material issue in the case, 'and is of such a nature as is calculated to mislead them, a new trial will be granted notwithstanding the correct rule may have been announced in other portions of the charge.” See also Morris v. Warlick, 118 Ga. 421 (45 S. E. 407); Morrison v. Dickey, 119 Ga. 698 (46 S. E. 863); Bennett v. Atlantic Coast Line R. Co., 126 Ga. 411, 413 (55 S. E. 177); Cress v. State, 126 Ga. 564 (55 S. E. 491); Rowe v. Spencer, 132 Ga. 426 (64 S. E. 468); Pelham Mfg. Co. v. Powell, 6 Ga. App. 308 (64 S. E. 1116). The excerpts from the charge here complained of are in terms contradictory, and fail to furnish the jury with a correct rule or guide. The two excerpts when, taken together were calculated to mislead or confuse the jury. We are of the opinion that the error pointed out could have misled, and 'perhaps did mislead, the jury. Suffice it to say that in our opinion the jury were erroneously instructed, and the erroneous instruction was not cured by any prior or subsequent instruction. Judgment reversed. Wade, C. J., concurs. Jenkins, J., dissents.

Jenkins, J.,

dissenting. About all that is expected and required of the presiding judge in presenting the rules of law governing the issues involved in a pending trial is that the charge shall be fair, clear, accurate, reasonable, definite, and full; but he must not, even by implication, intrench upon the province of the jury, nor touch upon matters not actually warranted by the evidence. Here, with us, even with the books before us, and aided as we'are by the'well-considered briefs and arguments of opposing counsel, it ofttimes is no easy thing precisely to state the law. And-even though the rules as here laid down can thus be formulated with the utmost caution and painstaking care, it nevertheless sometimes happens that a statement proves inexact, and must subsequently be criticised, or the decision itself overruled. But with the trial judge, it is not his function first to ascertain and then to state the law; his duty is to know it. Throughout the , shifting points of contest he must be able almost instantly to recog.nize and sustain those principles which are legally sound, and with the same ready aptitude “Shoot folly as it flies.” Thus, from the necessity of the case, it has been settled by numerous decisions in this State that mere slips of the tongue or verbal inaccuracies in a charge which are not calculated actually to mislead the jury or obscure the meaning of the court will not cause a new trial. It has also been often held that an irrelevant charge will not cause a new trial, where it does not appear to have been prejudicial to any rights of the parties, and was not likely to have misled the jury as to the true issues of the case. The defense actually relied upon in this case, as stated in the second headnote of the opinion, was that the defendant was without fault, and that the injury sustained by the plaintiff was really not occasioned by the operation of the defendant’s cars, but was due solely to the negligence of the plaintiff himself. The excerpt from the charge complained of is as follows: “Failure to exercise ordinary care upon the part of the plaintiff, after negligence is apparent, or should have been reasonably apparent to him, or apprehended by him, will preclude, a recovery in any amount by the plaintiff, if there is no negligence attributable to the defendant ” Immediately following 'this instruction, and in the same connection, the charge continued as follows: “The duty imposed by law upon persons, does not arise until the negligence of the other party exists, until an ordinary prudent person under like circumstances would have reason to apprehend if negligence there was.”- Since the real contest under the plea was not whether the plaintiff could, by the exercise of ordinary care, have avoided the consequences of the defendant’s negligence after it had, or should, have, become known, but whether the'in jury was in fact caused by the plaintiff’s own negligence and not by the negligence of the defendant, it does not seem that an instruction on the principle sought to be stated in the excerpts was really necessary to a determination of the issue actually involved. The question at last, however, is whether or not the jury could reasonably have been confused or misled by this portion of the charge,, to the injury of the defendant’s rights.' While it is true that “Where an erroneous rule oi law is given to the jury on a material issue in the case, and is of such a nature as is calculated to mislead them, a new trial will be granted notwithstanding the correct rule may have been announced in other portions of the charge,” still, in this instance, since the erroneous proviso is contradicted by the language and meaning of the identical sentence to which it was appended, the very excerpt complained of stating within itself that the plaintiff’s right to a recovery is precluded by his failure to exercise ordinary eáre “after negligence is apparent, or should have been reasonably apparent to him,” it would seem that the self-contradictory excerpt complained of fails within itself to furnish any rule or guide whatever^ - While it is self-evident that the presiding judge himself had the correct rule in mind,-the erroneous proviso nullifies, and is itself nullified by, the other portion of the identical excerpt complained of. It would thus appear that since the portion of the charge specifically excepted to fails within itself to furnish any rule or guide, it is really not a question of whether an incorrect principle has been corrected, nor is it a case where the jury is required to accept one portion of the charge to the exclusion of the other. But since the portion of the charge given immediately following and in the same connection must be construed together with the part first quoted, the question is whether the two excerpts, when taken together and construed together, were calculated to mislead or confuse the jury upon any material' issue involved and to the prejudice of the defendant’s rights. It has been repeatedly held by the Supreme Court that an attack upon the charge of a court by culling therefrom isolated clauses and sentences, which, if taken alone, would be erroneous, will not be entertained when, immediately preceding or following the objectionable extracts, they are so qualified by the language of the court as to state correctly the law of the case. Britten v. State, 124 Ga. 783 (53 S. E. 99). Since no. erroneous rule or guide can really be taken as having been actually expressed, and since the explanation immediately following it would seem to have cleared up the patent contradiction set forth, and especially since the principle here considered was in fad; not involved in the de-, termination of the real issue in the case, I do not think the irrelevant and contradictory statement as immediately modified could have misled, or confused the jury in their determination in the actual iss^ie in the case.


author: Jenkins, J.

text:
    9087.
    Arthur v. Georgia Cotton Company.
   Jenkins, J.

1. Where the owner of property engages another to find a purchaser for it and to negotiate terms of sale at a named minimum price or better, and such person, with or without compensation, assumes such duty, and, by virtue of his delegated authority, procures a purchaser for the owner, and the owner consummates a contract of sale with the buyer upon terms which have been arrived at solely by virtue of the previous negotiations thus had, the relation which subsists between the seller and the one acting for him in such previous negotiation of terms is that of principal and agent. The mere fact that a confidential agent, who thus exclusively negotiated to an agreement the actual terms of sale, had only the authority to negotiate, but was not empowered to make a binding contract for his principal, would .not make him simply an intermediary or middleman. “A middleman is employed to bring two or more parties together; the parties, when they meet, to do their own negotiating and make their own bargains. He sustains no confidential relation to either party.” 5 Words & Phrases, 4500.

2. The first duty of an agent is that of loyalty to his trust. He must not put himself in relations which are antagonistic to that of his principal. His duty and interest must not be allowed to conflict. He can not deal in the business within the scope of his agency for his own benefit (Civil Code of 1910, § 3583; Sessions v. Payne, 113 Ga. 955 (39 S. E. 325); Forlaw v. Augusta Naval Stores Co., 124 Ga. 261 (52 S. E. 898); Williams v. Moore-Gaunt Co., 3 Ga. App. 756 (60 S. E. 372); 1 Meehem on Agency, § 1228); nor is he permitted to compro-, mise himself by attempting. to serve two masters having a contrary interest, unless it be that such contracts of dual agency are known to each of the principals. A violation of any of these obligations, of which the opposite party had notice, will authorize the principal to promptly rescind a contract thus negotiated in his behalf. It is immaterial in such a case that fraud by the agent was not actually intended, or that no injury was in fact occasioned to the principal. These rules of law are not merely remedial for actual wrongs which have been consummated, but are intended to be preventative as well. Thus, an agent, be he gratuitous or otherwise, who has been entrusted with authority to negotiate the terms of sale for his principal is not permitted to receive from the buyer a secret profit from his principal’s property, and if such an .agent places himself in a position antagonistic to that of his principal, by receiving from the buyer a secret consideration for any act within the scope of his agency, the contract thus negotiated by the agent in his own interest is not binding upon the principal. The question is not whether such a payment to the confidential agent resulted in actual harm to the principal, or whether it was the actual inducement which -brought the parties into agreement; but the question is whether or not such a secret payment could be taken as a consideration for any act on the agent’s part within the scope of his agency—-whether such a payment or promise of payment might make it the personal interest of the agent so to agree. 1 Meehem on Agency, § 1199; 31 Cyc. 1432, 1433; Tyler v. Sanborn, 128 Ill. 136 (21 N. E. 193, 4 L. R. A. 218, 15 Am. St. R. 97).

Decided June 12, 1918.

Action for-breach, of contract; from city court of Albany—Judge Clayton Jones. June 24, 1917.

The Georgia Cotton Company sued E. E. Arthur, alleging, that he contracted in writing to deliver to it, on or before October 31, 1916, at any -warehouse in Albany, Georgia, 100 bales of cotton of the average weight of 500 pounds, the company .agreeing to pay him 12 cents per pound, basis good middling; and that on October 25, 1916, he notified the plaintiff of his intention not to comply with the contract, and of his election to rescind .it. The suit was for the difference between the contract price and the market price of the cotton at the time and place specified therein, and amounted to $3,250. The defendant, by his answer, admitted a prima facie case, and assumed the burden of proof. Iiis plea was to the effect that the contract sued on was void for fraud; that he was a customer of the Albany Warehouse Company, and, shortly before the execution of the contract, had requested its representative, J. P. Champion, to sell for him 100 bales of his cotton, and to obtain for the cotton at least 12 cents a pound, and more if possible; that he was assured by the said Champion a few days later that he could only get 12. cents, and he thereupon signed the contract sued on; that the plaintiff, “in collusion with the said Jim Champion, fraudulently agreed,' unknown to this defendant, to pay 12% cents per pound for said cotton, and to pay the % cent on the side to Jim Champion, as a representative of the Albany Warehouse Company,” thereby defrauding the defendant, without his knowledge, out of that amount. By amendment he alleged in substance that Champion acted as agent for both him and the plaintiff, and that on account of this dual agency the contract was void. J. S. Billingslea, vice-president of the Georgia Cotton Company, and Champion testified to the effect that Billingslea agreed that if Champion would guarantee the performance of the contract, the Georgia Cotton Company would pay to him one eighth of a cent a pound in consideration of the guaranty, and that the cotton company entered into a contract with Champion to this effect. It appears, from the evidence, that Billingslea said nothing to Champion as to not telling the defendant about the guaranty, but the defendant was not informed in regard to it. No evidence was submitted by the plaintiff. The jury found a verdict in favor of the plaintiff for the amount sued for. The defendant made a motion for a new trial, on the usual general grounds, and on the ground that the court charged the jury that an agent has the legal right to guarantee the contract of his principal, without also charging them that such can not be the case if he is making a profit thereby, unless it be done with the principal’s knowledge and consent.

3. Under the undisputed evidence in this case the jury found that the sole consideration of, the undisclosed promise of the buyer' to the agent of the .seller was the agent’s guaranty of his principal’s, contract. Since such an agreement lay wholly beyond the scope of the agency, it can.not be said as a matter of law that the interest of the agent in negotiating the terms of sale could have been affected thereby.

Judgment affirmed.

Wade,'0. J., and Luloe, J., concur.

Walters & Redfearn, for plaintiff in error.

Pottle & Hofmayer, contra.


author: Luke, J.

text:
    9204.
    William Hester Marble Company v. Walton.
   Luke, J.

1. A negotiable promissory note given in whole or in part upon an agreement, express or implied, to settle or prevent a criminal prosecution is void, unless the case falls within some express statute authorizing settlement. Civil Code (1910), §§ 4247, 4251; Small v. Williams, 87 Ga. 681 (5), 685 (13 S. E. 589).

2. If the consideration for the notes sued on was the' suppression of a criminal prosecution, it is immaterial whether the suit is brought by a bona fide holder or not. Civil Code (1910), § 4286; Jones v. Dannenberg Co., 112 Ga. 426 (37 S. E. 729, 52 L. R. A. 271).

3. Where a note was executed by one as principal and by another as surety, and the consideration therefor was illegal and immoral, but this fact was unknown to the surety at the time of the execution and delivery of the note, the surety may nevertheless defend a suit thereon by showing that the note was in fact executed by the principal for such a consideration. Civil Code (1910), §§ 3538, 3539; Patterson v. Gibson, 81 Ga. 802 (10 S. E. 9, 12 Am. St. R. 356).

4. Generally, proof of an explicit voluntary admission by a person of a fact adverse to ,his own interest is, in any civil proceeding against him, prima facie evidence of the existence of that fact; and, unless explained or denied by other evidence, such admission may, of itself, authorize a jury to find accordingly. Civil Code (1910), §§ 5776, 5778 (2); Burch v. Harrell, 93 Ga. 719 (20 S. E. 212); Luther v. Clay, 100 Ga. 236 (3), 243 (28 S. E. 46, 39 L. R. A. 95); Ga. R. Co. v. Fitzgerald, 108 Ga. 507 (34 S. E. 316, 49 L. R. A. 175); Chicago Portrait Co. v. O’Neal, 6 Ga. App. 425 (65 S. E. 161); Raleigh &c. R. Co. v. Allen, 106 Ga. 572 (32 S. E. 622).

Decided June 12, 1918.

.Complaint; from city court of Blakely—Judge Sheffield. August 20, 19Í7. •

' Glessner & Gollins, for plaintiff. B. W. Fortson, for defendant.

5. An admission made through an agent, during the existence and in. pursuance of his power, is no less evidence against the principal than if made by the principal in person. Civil Code (1910), §§ 3571, 5779. Furthermore, if the admission accompany the agent’s §,ct, or is so nearly connected'therewith in time as to be free from all suspicion of device or afterthought, it is admissible in evidence as part of the res gestae. Civil Code (1910), § 5766; Rome Ins. Co. v. Thomas, 11 Ga. App. 539 (75 S. E. 894); Weiner Bros. Co. v. Tucker, 139 Ga. 596 (77 S. E. 811).

6. Where an agent, in transacting business for his principal, takes a note payable to himself instead of to his principal, and thereafter indorses and delivers it to his principal, the latter stands upon no better footing for any purpose tlian if named in the note, as payee.

7. The trial court having erroneously excluded evidence offered by the defendant Walton to show that the payee of the note was the plaintiff’s agent, took the note in the plaintiff’s business, and, on the occasion of obtaining Walton’s signature thereto as surety for Shirley, stated to Walton that the note was being given and received to prevent the plaintiff from prosecuting Shirley for larceny after trust of the plaintiff’s money, and having also excluded evidence offered to show that, immediately upon such admission being made, Waltpn stated to the payee that with such knowledge "he would not have signed the note and would not be bound by his signature in any event, it was, on. defendant’s motion complaining of such rulings, proper to grant a new trial, notwithstanding the evidence which the court permitted 'to go to the jury demanded the verdict returned in favor of the plaintiff.'

Judgment affirmed.

Wade, G. J., and Jenkins, J., concur.


text:
    9271.
    BREMEN FOUNDRY & MACHINE WORKS v. BOSWELL.
    Where a jsuit brought in a justice’s' court in the name of, “Bremen Foundry & Machine Works” as plaintiff did not disclose, whether this was the name of a 'corporation, or of a partnership,' or was a name used 'to designate an individual, and the defendant, without objection to the form of the action, filed a plea, setting up a contract and other transactions with the plaintiff, confessed judgment, and entered an appeal to a -jury in the superior court, and on the hearing in the latter court, after the ease had been pending. there for several terms, filed a demurrer and moved to dismiss the case, on the ground that there was “no proper party plaintiff,” that “Bremen Foundry & Machine Works is neither a corporation, a partnership, nor an individual,” it was error to sustain the demurrer and dismiss the case.
    Decided June 12, 1918.
    Appeal; from Carroll superior court—Judge Terrell. 'October 2, 1917.

      Taylor Smith, Buford F. Boykin, for plaintiff.

      I. N. Cheney, R. D. Jackson, for defendant.
   Jenkins, J.

This was a suit on open account, by “Bremen Foundry & Machine Works” against J. F.- B. Boswell, brought to the May term, 1916, of a justice’s court in Carroll county. The defendant filed a plea and answer in the. justice’s court, setting up a contract and other transactions with the plaintiff, confessed judgment, and entered an appeal to' a jury in the superior court. The case was passed at the October term, 1916, and at the Aj>ril term, 1917, of the superior court, and, upon the hearing at the October term, 1917, the defendant presented the following demurrer: “And now comes the defendant and demurs to the summons in above case, and for ground of demurrer says: (1) that there is no proper party plaintiff in said case; that ‘Bremen Foundry & Machine Works’ is neither a corporation, a partnership, nor an individual. Wherefore defendant prays that his demurrer be sustained and the case dismissed.” The court sustained the demurrer and dismissed the suit, and the plaintiff excepted.

In every suit brought in this State, there must be a real plaintiff and a real defendant. The plaintiff or the defendant may be a natural or an artificial person, or a quasi-artificial person, such as a partnership. Where the name used in a suit as the name of the plaintiff clearly indicates that it is not the name of a natural person, and where it is not such as to import either a corporation or a partnership, the proceeding is wholly void, and should be dismissed upon motion or general demurrer. Mutual Life Ins. Co. v. Inman Park Church, 111 Ga. 677 (36 S. E. 880); Knox v. Greenfield Estate, 7 Ga. App. 305 (66 S. E. 805). Where the name is such as to import a corporation rather than an individual or partnership, then even in the absence-of such an averment a presumption to this effect prevails until the contrary is made to appear. Wheeler v. Davis & Sanford Co., 15 Ga. App. 79 (82 S. E. 593). The petition in such a case-is not even subject to special demurrer, and the final judgment is not void or voidable, on account of the mere absence of such an averment. Charles v. Valdosta Foundry Co., 4 Ga. App. 733, 735 (62 S. E. 493). In a case in ‘which the name of the plaintiff might import either a corporation or a partnership, the defendant, npon calling for the information by timely and appropriate demurrer, is entitled to know from the plaintiff the exact nature of his legal entity; and, upon the filing of such objection, the plaintiff, if it be a corporation, should by amendment so state; and if it be a partnership, it should amend by so alleging, and also by setting out the names of the partners. But in such a suit, where the legal entity of the partnership or corporation is thus not fully disclosed, and the name is such as to indicate, that it is either that of a corporation or a partnership, if the defendant fails to thus exercise his privilege of requiring the plaintiff to state specifically the true and exact status of its legal entity, a judgment so obtained without objection is not void or voidable, since the defect is one which could have been cured by amendment. Western & Atlantic B. Co. v. Dalton Marble Works, 122 Ga. 774, 776 (50 S. E. 978); Haynes v. Armour Fertilizer Works, 146 Ga. 832, 834 (92 S. E. 648).

In the instant case the name of the plaintiff, “Bremen Foundry & Machine Works,” is such as clearly to indicate that it' is not a natural person (Haynes v. Armour Fertilizer Works, supra); but the suit is not a mere nullity, since the name might .reasonably import either a corporation or a partnership. But while the name thus imports either of these legal entities, still, since it does not disclose which, the defendant, by timely and appropriate special demurrer, could have required the plaintiff to amend by explicitly stating which of the two legal entities, either of which could be imported, it actually was; and in default of such amendment, upon such timely objection, the suit would have been dismissed. Hill v. Armour Fertilizer Works, 14 Ga. App. 106 (80 S. E. 294).

Since the demurrer filed on the appeal, at the third or fourth term of the court, can not be taken as a motion to dismiss a proceeding wholly void, the judgment sustaining the demurrer and dismissing the action was erroneous. See Gate City Cotton Mills v. Cherokee Mills, 128 Ga. 170 (57 S. E. 320).

Judgment reversed.

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


text:
    9274.
    SMITH v. WESTERN & ATLANTIC RAILROAD CO.
    1. (a) Ordinarily tlie only duty that a railway company owes to a trespasser upon or about its property is not to injure him wantonly or wilfully after his presence has been discovered, but failure to exercise ordinary care to prevent the injury to a trespasser after his presence has become known is usually so much akin to wilfullness or wantonness as to create liability on -the part of the company, where the failure to exercise that degree of care would render it liable.
    (&) Generally the servants of a railway company are not bound to anticipate the presence of a trespasser upon or about its tracks, and the duty of exercising such care and diligence does not in such case arise until the presence of the trespasser becomes known.
    2. Under the facts of this case, the court did not err in directing a verdict in favor of defendant. ' „
    Decided June 12, 1918.
    Action for damages; from Whitfield superior court—Judge Tar- ■ ver. July 27, 1917.
    William and Lou Smith originally instituted an action against the Southern Railway Company and the Western & Atlantic Railroad Company for the homicide of their minor son, alleged to be eighteen years of age (in the present' case alleged to be seventeen years of age), who had never married, and upon whose estate there was no administration. The action was brought under the' Civil Code (1910), § 2782 et seq. The deceased was employed by the Southern Railway Company. The Western & Atlantic Railroad Company was made a joint defendant upon the theory that its negligence concurred in causing the decedent’s death. The defendants filed demurrers, which were overruled, and the ease was taken to the Supreme Court, and it was decided that, the case having been brought under the State “employer’s liability act,” the action was demurrable at the instance of each of the defendants, for misjoinder of parties defendant, and at the instance of the Western & Atlantic Railroad Company for misjoinder of parties plaintiff. It was also held in that case that as to the Western & Atlantic Railroad Company the facts alleged did not make out a ease of negligence sufficient to support an action, and a general demurrer should have been sustained. The allegations of the petition appear in that decision. See Western & Atlantic B. ■Go. 'v. Smith, 144 Qa. 737 (87 S. E. 1082). The plaintiffs then dismissed the Western & Atlantic Railroad Company from that suit, and, Lou Smith,' one of the plaintiffs, having died, William Smith s was appointed her administrator, and by amendment was made a party as such, and the case then proceeded to trial against the Southern Railway Company. The verdict was for the defendant, and was sustained by'this court in the case of Smith v. Southern Bailway Go., 20 Ga: App.. 609 (93 S. E. 166). William Smith then instituted the present suit against the Western & Atlantic Railroad Company to recover the value of, his deceased minor son’s services. The allegations of'negligence against the defendant in the petition in this case are substantially the same as those made against it in the petition filed in the case against both -this defendant and the Southern Railway Company, except that the following additional allegations were made: “Petitioner further show;s that said defendant Western & Atlantic R.’ Co. engineer and fireman [were ?] operating said train on a straight track where petitioner’s son could easily have been seen by the engineer and fireman upon said engine for the distance of 300 yards, and that said employees did see your petitioner’s son and could have in the exercise of ordinary care have stopped said train and so cheeked the same as to prevent the killing of your petitioner’s son.” “Said defendant was further negligent in that its engineer and fireman operating said train and engine that killed petitioner’s son could see that a northbound freight was passing and could see petitioner’s said son and could see the danger and peril that he was in at the time and’ could in the exercise of ordinary- care and diligence have blown the whistle and checked said train .and by said warning and checking could have saved the life of petitioner’s said son Walter Smith, but while seeing his position of peril and seeing and knowing that 'he was not looking towards said engine, negligently failed and refused to give any warning or check .the train or do anything to1 prevent the death of said Walter Smith, petitioner’s said minor son.” -
    Upon the trial of the case, after the plaintiff and the defendant had introduced their evidence, the court directed a verdict for the defendant; to which the plaintiff excepted.

      W„ E. Mann, W. 0. Martin, for plaintiff. .

      Tye, Peeples & Tye, Maddox, McCamy & Shumate, for defendant.
   Jenkins, J.

(After slating the foregoing facts.) Under the decision rendered by the Supreme Court when this case was before-it (Western & Atlantic R. Co. v. Smith, supra), the question whether the defendant was ¿harged with' the duty of anticipating the presence of the deceased upon its tracks need not be considered,’ since the allegations of the petition then under review, which are set out in that opinion, and which sought to charge the defendant with that duty, are substantially the- same as those of the petition in the instant case, and the Supreme Court there held that.the facts alleged did not make out a case of negligence sufficient 'to support an action, and a general demurrer thereto should have been sustained. Under’ the allegations in the present petition, and the evidence, adduced upon the trial .of the case, the deceased was a trespasser upon the defendant’s tracks at the time he’was killed. As has been held- both by the Supreme Court ánd by this court, the only duty which a railway company ordinarily • owes to a trespasser upon or about its property is not to injure him wantonly or wilfully after his presence has been discovered, but failure to exercise ordinary care to prevent injury to a trespasser after his presence has become known is usually so much akin to wilfullness or wantonness as to’ create liability on the part of the company, where the failure to exercise that degree of care would render it liable. As a general rule, however, the servants of a railway company are not bound to anticipate the presence of a trespasser upon or about its tracks, and the duty of exercising such care and diligence does not in such a case arise until the presence of the trespasser becomes known. See Pope v. Seaboard Air-Line Ry., 21 Ga. App. 251 (94 S. E. 311), and cases cited. Therefore, the only question presented for our consideration in this case is whether under the evidence the defendant’s servants wilfully and wantonly killed the plaintiff’s son, or failed to exercise ordinary care and diligence to prevent the injury after his presence upon defendant’s1 tracks became known to the defendant’s servants.

The plaintiff introduced as its only witness the brother of the deceased, who testified that the deceased was killed by the engine of the defendant company. He further testified that at the time, his brother was killed he could not see him,, by reason of the passing of a freight-train on the Southern Eailway Company’s track between him and his brother. Where an action is brought for the homicide of a trespasser, shown to have been occasioned by the operation of defendant’s cars, the .presumption of negligence does' not arise against the defendant, unless it appears that at the time of the injury there "was due from the company to the person injured a degree of diligence to prevent such injury. In the evidence there is nothing that could raise any such presumption against the defendant, while oh the other hand the evidence of the engineer in charge of defendant’s locomotive, and the testimony of the conductor of the Southern freight-train passing this point at the time of - the injury, both exonerate the defendant from any act of negligence, and. this testimony is not in any way disputed. Regardless of how far the servants in charge of defendant’s -train might have seen the deceased before striking him, there was, under the evidence, no duty resting upon them to anticipate his presence upon the track, and thus the duty of- exercising ordinary care did not arise until his presence actually became known to those upon the engine. The engineer testified that when he first saw the deceased, the latter was within about forty feet of him; that the deceased was looking at the passing Southern freight-train, and was standing on the end of a cross-tie; “I commenced blowing my whistle at him, and he never did pay any attention to it. Then I slapped my brake on in emergency, but I was too close to him. . . I could not have checked the speed of that train sooner than I did. I couldn’t have done anything else except blow the whistle.” The conductor on the Southern train testified as follows: “The W. & A.-man blew at the boy. He blowed as quick as he saw him, looked like. The W. & A. man come around that curve off of the ‘S,’ and when he got to where he could see the negro he was not more than I should think 100 yards from him at the furtherest, and he blowed at the negro, but the negro never did seem to notice him. . . I don’t think the W. & A. train could have stopped after he saw him.” No one was introduced to contradict these witnesses, and while the brother of the deceased did testify that he “imagined” that any one on an engine approaching the point at which the deceased was killed could have seen him for three or four hundred yards, still, under the rule of law which has been stated, such a supposition fails to support the charge of negligence in this case. We do not think the jury would have been author-; ized under the evidence to return a verdict in the plaintiff’s favor. The court therefore did not err in directing a verdict in favor of the defendant.

Judgment affirmed.

Wade, O. J., arid LuTce, J., concur.


text:
    9283.
    Futch v. Taylor et al.

    Decided June 12, 1918.
    Certiorari; from Berrien superior court—Judge Thomas. September 19,1917.

      Story & Story, J. P. Knight, for plaintiff in error.
    IF. B. Smith, contra.
   Jenkins, J.

1. An unattested mortgage is good as between the parties thereto, or as between the maker and a transferee. The requirement relative to attestation, as prescribed by section 3257 of the Civil Code (1910), pertains to the prerequisite necessary to its record, and has application only so far as the intervening rights of third persons without notice are' concerned.

2. As there was no motion - to dismiss the levy on the ground that the notice prescribed by section 3296 of the Civil Code (1910) had not been given, and the defendant in fi. fa., although reciting such failure, entered a plea to the merits without actual protestation, the failure-to give the notice referred to must be taken as waived. McFarlin v. Reeves, 10 Ga. App. 581 (73 S. E. 862).

3. In a proceeding to foreclose a chattel mortgage, the mortgagor may by affidavit of illegality avail himself of any defense which he might set up in an ordinary, suit upon the demand secured by the mortgage, and which goes to show that the amount claimed is not due and owing-, and while the mortgagor is thus permitted to avail himself of a valid defense by way of recoupment, he is not entitled to plead the defense of set-off in such a summary proceeding, since the latter defense is not one which goes to the justice of plaintiff’s demand. Arnold v. Carter, 125 Ga. 319 (54 S. E. 177); Mahone v. Elliott, 141 Ga. 214, 216 (80 S. E. 713). Upon the hearing of the certiorari the court did not err in sustaining the judgment of the justice in dimissing the defendant’s plea.

Judgment affirmed.

Wade, O. J., and Lulce, J., concur.


text:
    9504.
    MANSOR v. ZEMURRAY.
    1. Where property is bought under an implied warranty that it is reasonably suited to the use intended, an acceptance by the purchaser Waives all defects discovered by him, or which, by the exercise of ordinary care and prudence, he might have discovered, before delivery.
    2. The evidence demanded the verdict directed.
    Decided June 12, 1918.
    Complaint; from city court of Valdosta—Judge Cranford. January 18, 1918.

      K. K. Wilcox, for plaintiff in error.

      Patterson & Copeland, contra.
   Wade, C. J.

This was a suit on account for an alleged balance due on the purchase-price of foiir carloads of bananas. The petition contains the usual and necessary allegations for a suit on account. The answer admits that the amount claimed has not been paid, but denies liability, for the reason that the bananas shipped were in an overripe, decayed, and unsalable condition on arrival at their destination; and alleges that the unmerchantable condition of the fruit was not caused by any act of the carrier, but was due to its overripe and decayed condition when delivered to the railroad company for shipment. It was further pleaded that the bananas in one of the cars were improperly loaded, and that 3,139 -pounds were frozen in transit, on account of gross negligence of the plaintiff in failing to place a sufficient amount of straw at the. ends of the car, so as to prevent cold air (the- shipment being made on 'March ,21st, when the weather 'was' cold) from coming into the car 'through- certain drainage holes or outlets, and thereby coming in contact' with the fruit packed over and about the holes and outlets. The. evidence in behalf of the plaintiff made out a prima facie case; whereas that introduced in behalf of the defendant disclosed that he ordered the bananas by wire, directing that they be shipped by freight, and that when -the shipment arrived he immediately examined the fruit and found it to be in an overripe, decayed, and unsalable condition; that he thereupon had the car . re-iced, and exercised due diligence generally in an effort to preserve the bananas until he could unload and dispose of them; that he sold the fruit as soon as possible, but realized only $93:87 for it, and in due course remitted to the plaintiff this amount, stating that he was not indebted for the balance of the purchase-price, for the reason that the bananas were overripe and unsalable. There was also evidence from the defendant that the plaintiff was negligent in failing to protect properly the drainage holes or water outlets in one of the cars, só as to prevent the cold air from coming into the car and freezing the bananas packed over and around the holes or outlets. There was, however, evidence that the defendant wired to the plaintiff to “keep all vents open and plugs out.” At the conclusion of the evidence the trial judge directed a verdict in favor of the plaintiff. The defendant excepts to the overruling, of his motion for a new trial, complaining that the court erred in directing the verdict.

We are constrained to hold that this complaint is without substantial merit. It will be observed that the defendant’s answer admits a prima facie case, but attempts to set up an affirmative defense, based on an implied warranty that the bananas ordered were merchantable, and that he was therefore not responsible to the plaintiff for the purchase-price. The' settled rule in questions of this character is that “Where property, is bought under an implied warranty that it is reasonably suited to the use intended, an .acceptance by the purchaser of the property waives all defects which might have been discovered by the exercise of ordinary care and prudence before delivery. Cook v. Finch, 117 Ga. 541 (44 S. E. 95). See also. Hoffman v. Oates, 77 Ga. 731; Henderson Elevator Co. v. Milling Co., 126 Ga. 279, 284 (55 S. E. 50); Brooks v. Camak, 130 Ga. 213, 214,(60 S. E. 456). The rule is of course otherwise where property is bought under an express warranty that it will be of a particular kind and quality, the purchaser having the right to rely on the warranty and plead partial or total failure of consideration, growing out of defects discovered after acceptance, even though they would have become apparent upon an examination before delivery. So also is the rule otherwise where the defects are latent. The general rule in such cases, that whether the vendee waived an inspection, or inspected in a careless and indifferent manner, or whether he exercised ordinary care and prudence, is a question of fact to be determined by a jury, does not apply in the instant case (in which the judge directed a verdict), since the undisputed testimony of the defendant himself is that he knew of the defective condition of the fruit when received by him, but nevertheless accepted and sold it. The defendant contends, however, that it was not incumbent upon him to reject the bananas, and leave them in the hands of the carrier. This contention is wholly without merit, since the fruit was bought under an implied warranty, and the defendant should, on discovery of its defective condition, have refused to accept it, but having accepted it, with full knowledge of its unsalable condition, he can not, in the absence of fraud, set up the defense of failure of consideration. It is true that the Civil Code, § 4137, provides: “After acceptance of goods purchased, the presumption is that they are of the quality ordered, and the burden is on the buyer to prove the contrary, and partial payments with knowledge of the defective condition will not estop the buyer from pleading partial failure of consideration.” This section of the code is but a codification of the principle announced in Atkins v. Coll, 56 Ga. 86 (5), 89, which was a case of express warranty. It has been several times held that this section relates to cases of express warranty only. See Cook v. Finch, supra; Henderson Elevator Co. v. Milling Co., supra. The warranty in the case now under review being unquestionably an implied one, and the purchased having accepted the bananas with full knowledge of their defective condition, the acceptance constituted a waiver of the implied warranty that the fruit would be tendered in a merchantable condition. In other words, by accepting the bananas, he must, in the absence of fraud, be deemed to have assented to their defective condition, and is concluded from subsequently questioning their condition. In such a case no implied warranty of quality survives acceptance, and the buyer can not reject the property after acceptance, or recover damages for its inferior quality. He can do nothing inconsistent with the right of rejection, without precluding the exercise of that right.

As to the other defense, set up by the plea that 3,139 pounds of 1 bananas were improperly loaded in one of the cars, and that, due ■ to this negligence, they froze in transit, it suffices to say that the evidence fails to show the amount of damage, and does -not furnish a basis for finding any amount as damages.

The trial judge therefore did not err in directing a verdict for the plaintiff, and in thereafter overruling the motion for a new trial.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9592.
    Kelley v. Jones.
   Wade, C. J.

1. Where one of the errors assigned in a petition for certiorari in a case in which evidence was introduced is that the judgment complained of was contrary to evidence, or was without evidence to support it and contrary to law, the petition should set forth the substance of all the evidence introduced; and a statement in the petition that a number of witnesses were examined on both sides, without setting out in substance what they testified, is insufficient, and would unquestionably warrant a refusal by the judge of the superior court to sanction the certiorari. Hayes v. Lithonia, 94 Ga. 552 (20 S. E. 426); Central of Ga. Ry. Co. v. Potter, 120 Ga. 343 (47 S. E. 924); Bell v. Evans, 19 Ga. App. 469 (91 S. E. 787). Where, however, the judge of the superior court sanctioned a certiorari ‘to review a judgment of the ordinary, and the ordinary in his answer set out the evidence given on the trial before him, such deficiency in the petition for certiorari was supplied, and at the hearing it was too late to dismiss the petition for this ¡ defect. See, in this - connection, Taylor v. Gay, 20 Ga. 77; Taylor v. State, 118 Ga. 50 (44 S. E. 834); Willims v. Mangum, 119 Ga. 628 (46 S. E. 835); Horton-Hughes Furniture, Co. v. Broad Street Hotel Co., 22 Ga. App. 89 (95 S. E. 373).

Decided June 12, 1918.

Certiorari; from Forsyth superior court—Judge Morris. February 20, 1918. •

The petition for certiorari states that upon the hearing of the ease, the court, “after examining a number of witnesses on each side,” passed an order, set out in’the petition; with which judgment the petitioner is dissatisfied, and “he alleges that the same is error and contrary to law, and that the sáme is contrary to evidence and the principles of justice and equity, and that when the evidence given upon said trial shall be correctly reported by the ordinary, it will utterly fail to show that the applicant H. L. Jones had acquired any right to a private way across this petitioner’s land by prescription.” Other allegations of error are made, and it is prayed that a writ of certiorari be granted, requiring the ordinary to send up Copies of the proceedings, together with a report of the evidence given on the trial. The judge of the superior court sanctioned the certiorari, and the ordinary, in his answer to the writ, set out the evidence introduced on the trial. In a subsequent order, on the hearing of the certiorari, the judge revoked his sanction of the certiorari and dismissed it, on the ground that the evidence adduced on the trial before the ordinary was not set out in the petition. To this judgment the petitioner excepted.

H. L. Patterson, for plaintiff in error.

George F, Goler, G. B. Walker, W. I. Heyward, contra.

2. The judge of the superior court therefore erred in revoking his. previous order sanctioning the certiorari, and in dismissing the same, “upon the ground and for the reason that the evidence adduced upon the trial before the ordinary is not set out and embodied in the petition.”

Judgment reversed.

Jenkins and Luke, JJ., concur.


author: Bloodworth, J.

text:
    9036.
    CHAPMAN v. CHATTOOGA OIL MILL COMPANY.
    1. Where a verdict is rendered but no judgment is entered thereon, and an application is afterwards made in term time for an order authorizing a judgment .on the verdict to be entered nunc pro tunc, the motion may be heard in chambers and in a county different from that in which the verdict was obtained.
    .2. Where, by inadvertence, counsel failed to enter judgment on a verdict .within four days after adjournment of the court, the court may, at a succeeding term, on due' notice to the defendant, grant an order to enter the judgment nunc pro tunc. *
    3. The lapse of two years from the rendition of the verdict will not prevent the entering of a judgment thereon nunc pro tunc, upon proper application and notice.
    4. The provision of the law that judgments must be signed within four days after the adjournment of the court at which the verdict was rendered will not prevent the entering of a judgment nunc pro tunc at a subsequent term, upon proper application and notice.
    5. In the instant case the pleadings present no question that should have been submitted to a jury, and the judge did not err in ordering that the judgment be entered nunc pro tunc. '
    Decided June 12, 1918.
    Complaint; from Walker superior court—Judge Wright. May .14,1917.

      David F. Pope, for plaintiff in error. Rosser & Shaw, contra.
   Bloodworth, J.

A verdict in favor of Chattooga Oil Mill Company was rendered on May 31, 1915, against J. A. Chapman, in Walker superior court. No judgment was entered. Plaintiff . made application to tide court to be allowed to enter judgment nunc pro tune, and on April 18, 1917, the judge of the circuit in which Walker county is located passed an order in which it was provided that notice of the petition and order be served on the defendant, and he be required to show cause at Borne, Georgia, "why an order should not be passed permitting the entry nunc pro tunc of a judgment in the cause in said petition stated.” ,To this petition the defendant filed a demurrer and a plea and answer. On May 14th the, following order was passed: “Hpon hearing' the within motion it is hereby ordered that counsel for plaintiff, Chattooga Oil Mill Co., be permitted to enter judgment-nunc pro tune at the present term of Walker superior, court in the case of Chattooga Oil Mill Co. vs. J. A. Chapman, based upon the verdict as in1 within petition described.” From this order the defendant appealed, excepting on several grounds, which are hereinafter discussed.

When a verdict is rendered in the superior court and no judgment entered thereon, and an application is made for an order authorizing a judgment to be entered nunc pro tunc, is an order passed in term time, providing for the hearing of the application in vacation and in a county different from the one in which the ' ease is pending, authority for the judge at the time and place of hearing to pass an order authorizing the judgment to be entered nunc pro tunc? There can be no question about the right of the judge to pass such an order in vacation. That is expressly provided for by § 4854 of the Civil Code (1910), which is as follows-: “Said judges can not exercise any power out of term time, except the authority is expressly granted; but they may, by order granted in term, render a judgment in vacation.” Of course, if the order authorizing the judgment to be entered nunc pro tune is granted ' in vacation, it is “in chambers,” and not “in open court” or “in term time.” The only other question then is: Can such an order be passed in a county different, from the one in which the case is pending? Our Civil Code (1910), in §§ 4849 and 4850, recognizes the difference in the authority of the superior- court and the authority of the judge of that court. When the power is given the judge of a court, as contradistinguished from the.court itself, he may exercise this power in chambers or in vacation. The action taken in the matter under consideration in the instant case was that of a judge at chambers, an'd not that, of the superior court. According to Bouvier’s Law Dictionary, “vacation” is “that period of time between the end of one term and beginning of another. During vacation rules and orders are made in such eases as are urgent, by a judge at his chambers.” The same authority says: “Any hearing before a judge which does not take place during a term of court or while the judge is sitting in court, or an order issued under such circumstances, is said to be in chambers.” Black’s Law Dictionary thus defines “chambers”: “The private room or office of a judge; any place in which a judge hears motions, signs papers, or does other business pertaining to his office, when he is not holding a session of court. Business so transacted is said to be done ‘in chambers.’ ” In the opinion In re Neagle, 39 Fed. 855, we find the following: “All business done out of court by the judge is called ‘chamber business.’ But it is not necessary' to be done in what is usually called ‘chambers.’ Chamber business may be done, and often is done, on the street, in the judge’s own house, at the hotel where he stops, when absent from home, or it may be done in transitu, on the ears, in going from one place to another, within the proper jurisdiction to hold court. ■ . . For the purpose of jurisdiction, the chambers of the judge are wherever he happens to be in his circuit or district, when the exigencies of the ease call for the transaction of chamber business.” In Frawley v. Cosgrove, 83 Wis. 441, 445 (53 N. W. 689), Cassoday, J., said: “This court has frequently held that ‘a judge at chambers’ 'is simply a judge of a court of record acting out of court.” To say “acting, out of court” is equivalent to saying “acting in vacation.” In practice the words “vacation” and “chambers” are sometimes used interchangeably. 15 R. C. L. 522, § 15. See Civil Code (1910), § 4850 (4, 5). A case illustrating the principle involved is that of Wier v. Hill, 58 Tex. Civ. App. 370 (125 S. W. 366). The statutes under consideration in that cáse were §§ 2989 and 3007 of Sayle’s Ann. Civ. Stat. 1897, the former of which provides that' judges of the district courts may either in term time or vacation grant writs of injunction, returnable to their courts, in specified cases; and the latter provides that motions to dissolve injunctions, without determining the merits, may be heard after answer filed, in vacation as well as in term time, on at least ten days’, notice to the opposite party or his attorney. In construing these sections it was held that the word “vacation,” as so used, meant the vacation of the district court of the county wherein the case was peiiding, in which an injunction was awarded, and hence, there being no statute fixing the place of hearing motions to dissolve, a judge granting an injunction in vacation may hear a motion to dissolve it in.a county other than that in which the suit is pending. So far as the experience of the writer extends, a similar practice prevails in Georgia, as to orders in vacation or at chambers, the judge usually selecting the place that may best suit his convenience and that of the attorneys interested. Under §§ 4852 and 4853 of the Civil Code (1910), even without an order passed in term time, such an application as the one under discussion could be heard in vacation, by order of the judge, upon proper application, and ten days’ notice to the opposite party or his attorney.

Can a judgment be entered nunc pro tunc when the failure to enter judgment is the result of “inadvertence and oversight on the part of counsel?” This is answered by our Supreme Court in the ease of Kelsoe v. Hill, 58 Ga. 364: “Where, by inadvertence, counsel fail to enter up .judgment on a recovery in an action of trespass vi- et armis, within four days after adjournment of the court, the court may, at, a succeeding term, on due notice to the defendant, grant-an order to enter up the same nunc pro tune.”

Can a judgment on a verdict be entered nunc pro tunc after the lapse of “about two years” after the verdict was returned? In the case of Perdue v. Bradshaw., 18 Ga. 287, Judge Lumpkin said (p. 288): “The common-law rule is, that all judgments, whether interlocutory or final, shall be entered of record, of the day of the month and year when signed; and shall not have relation to any other day. Still, the discretion'is given to the court or judge to order a judgment to be entered nunc pro tunc. Indeeci, jt is not. only competent to' do this, but it seems to be,almost a. matter ,.of course.” In Pollard v. King, 62 Ga. 103, Mr. Justice Bleckley, said: “To say the least, the court has a discretion to allow -an amendment like the one now under consideration, even after the lapse of a lengthy period of time. Ten years, or more than ten years, will constitute no insurmountable obstacle. 'Some old things may not be worth repairing, but a judgment, if kept from becoming dormant, ought generally to be amended whenever a defect in it is discovered. Age need not exclude it from the hospital in which younger patients of its class receive treatment.” In Vaughn v. Fitzgerald, 112 Ga. 517 (37 S. E. 752), it was held legal and proper for an ordinary to pass an order nunc pro tunc that a return be entered of record nine years after the time at which it should have been originally entered. In that case Simmons, C. J., said (p. 519): “We think .that the lapse of time does not make any difference, if the court is satisfied that such a judgment ought to have been rendered at the time the commissioners made the return, and it appears that no objections were filed thereto. In such case the court should grant the judgment nunc pro tunc, regardless of the lapse of time.” See also Seay v. Treadwell, 43 Ga. 564; Mayor &c. of Savannah v. Champion, 54 Ga. 541; Spencer v. Peake, 73 Ga. 803.

Although the code provides that judgments shall be entered up within four days after the adjournment of the court'at which the verdict is rendered, this will not prevent entering judgment nunc pro tunc at a subsequent term. In the instant case the order of, the judge authorizing the judgment to be entered nunc pro tunc was signed May 14, 1917, and the judgment itself was entered on May 22, 1917. In certifying the bill of exceptions on May 24, 1917, the presiding judge added: “I further certify that Walker superior court was not adjourned on May 22, 1917, and that said court has not since been adjourned.” ' In certifying to the record on June 15, 1917, the clerk said that the February, term, 1917, of Walker superior court had not then adjourned. So the fact that the judgment nunc pro tunc was entered during the term at which the order authorizing it -was signed is established by the record. u

The pleadings present no question that should have been submitted to a jury, and the judge did not err in ordering the judgment entered nunc pro tunc.

Judgment affirmed.

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


author: Bloodwoeth, J.

text:
    9459.
    Putney v. Pass.
    Decided June 12, 1918.
    Rehearing denied August 2, 1918.
    Action for breach of contract; from Dougherty superior court— Judge Harrell. November 30, 1917.

      Pope & Bennet, for plaintiff in error.
    . B. J. Bacon, B. H. Ferrell, contra^
   Bloodwoeth, J.

Jhe grounds of the amendment to the motion for new trial are without merit. There is evidence sufficient to support the verdict, and the judgment is

Affirmed.

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


text:
    8686.
    James v. Thompson.
   Wade, C. J.

1. Under the answers of the Supreme Court to questions certified by this court in this case, a justice of the peace acts as a judge of a special tribunal in passing upon such claims for damages ! as are included by the provisions of section -2034 of the Civil Code of 1910, in the manner therein provided; and, acting as a judge of such special tribunal under the provisions of said section, he may give judgment for- damages where the damage complained of is to growing or immature crops. See 148 Ga. 201 (96 S. E. 216).

Decided July 9, 1918.

Certiorari; from Bibb superior court—Judge Mathews. March 9, 1917.

Charles Alcerman, for plaintiff in error. 8. W. Hatcher, contra.

2. The judge of the superior court did not err in overruling the motion to dismiss the case, or in holding that the justice had jurisdiction to entertain and try it as provided by section 2034, supra, and that there was sufficient evidence to sustain the judgment rendered.

Judgment affirmed.

Jenkins and Luke, JJ., concur.