text:
    7451.
    Tallent v. Crim.
    Decided November 22, 1916.
    Complaint; from city court of Atlanta—Judge Reid. April 17, 1916.
    The action was on promissory notes of the defendant to the plaintiff for sums amounting to $1,160, principal. The defendant answered, admitting the execution of the notes, but denying liability, and in her plea made the following averments: In April, 1915, prior to the date of the notes sued on (April 38, 1915), A. L. Crim, agent for the plaintiff, approached the defendant and offered to trade to her certain vacant lots in the town of Oakhurst, DeKalb county, Ga., representing to her that the .lots were worth .$3,000, and that he had sold other lots adjoining this property for $700 and $800 per lot, and offering to take in part payment a certain house and lot on Grant street in the city of Atlanta at a cash valuation of $3,000, in which valuation a loan of $1,200 against the Grant street property was assumed by the plaintiff. The defendant relied implicitly on the representations of the plaintiff’s agent, A. L. Crim, as to the value of the property he had sold adjoining the property he offered to sell to her as hereinbefore set forth, at which prices he said he had sold lots adjoining the property offered her, and that the property offered her was of the value of $3,000. There was no way by which'she could ascertain the truth or falsity of the said statements as regards the amount at which the said A. L. Crim said he had sold lots adjoining the property offered her. There was nothing on record that showed that the valuation placed on said lots by him, which brought about the closing of said trade, was not true. The defendant was not conversant with the values of real estate in the town of Oakhurst, and therefore was obliged to rely on the statements of the said Crim as to property valuations in that town. Eelying on his statements as hereinbefore set forth, she traded with him for four vacant lots in the town of Oakhurst, hereinbefore mentioned, upon the following terms: She was to pay for the said property $3,000, the said house and lot on Grant street to be received in part payment of the $3,000, and her notes for $1,200, including the notes sued on, being given to the plaintiff. “Defendant says that since she traded for said vacant lots in DeKalb county that the statements that A. L. Crim made as to value of lots as aforementioned were absolutely untrue, and were made for the purpose of inducing this defendant to trade the property and upon the terms aforementioned.” The house and lot on Grant street and the money already paid the plaintiff by the defendant are the full value of the property purchased by her from the plaintiff; and the defendant says that, the notes sued on having been obtained from her by fraudulent representations of the plaintiff and the agent of the plaintiff as to the market value of said vacant property as aforesaid, the plaintiff should not recover judgment on said notes.
   Broyles, J.

1. Where one purchasing land has the opportunity of examining it before buying it, but, instead of doing so, voluntarily relies upon the statements of the vendor concerning its character and value, the contract will not be rescinded or set aside, or the purchase-price of the land abated, because of the falsity of such statements, unless some fraud or artifice was practiced by the vendor to prevent such examination. This is true although the vendee in buying the land may have acted upon the misrepresentations of the vendor or his agent. Tindall v. Harkinson, 19 Ga. 448; Collier v. Harkness, 26 Ga. 362 (71 Am. D. 216); Allen v. Gibson, 53 Ga. 600; Stone v. Moore, 75 Ga. 565; Fuller v. Buice, 80 Ga. 395 (6 S. E. 17) ; Thompson v. Boyce, 84 Ga. 497 (11 S. E. 353) ; Martin v. Harwell, 115 Ga. 156 (41 S. E. 686) ; Brannen v. Brannen, 135 Ga. 590 (69 S. E. 1079). The case of Carithers v. Levy, 111 Ga. 740 (36 S. E. 958), cited by counsel for the plaintiff in error, is clearly distinguished by its facts from the instant case.

2. Under the foregoing ruling, the court did not err in striking the defendant’s plea and in thereafter directing a verdict for the plaintiff for the full amount sued for'. _ Judgment affirmed.

The plaintiff demurred and moved to .strike the defendant’s answer, on the following grounds: (1) The facts set forth do not constitute a valid defense. (2) The allegations of fact do not constitute a plea of either total or partial failure of consideration. (3) It does not appear that the sayings of A. L. Grim are binding upon the plaintiff. (4) It does not appear that the defendant was legally justified on acting on the representations of A. L. Crim. (5) The allegations that the notes were obtained by fraudulent representations are demurred to because these allegations state conclusions without giving any facts on which the conclusions are based, and because there are no sufficient allegations showing fraud on the part of the plaintiff or of any one authorized in behalf of the plaintiff. The court sustained the demurrer and struck the plea, and directed a verdict against the defendant for the amount sued for.

T. 0. Battle, W. I. Heyward, for plaintiff in error.

Moore & Pomeroy, contra.


source: Caselaw Access Project

author: Wade, C. J.

license: Public Domain

text:
    7479.
    Wright et al. v. Ware et al.

   Wade, C. J.

1. Regardless of whether a plea of the general issue only, to a suit on an unconditional contract in writing in the municipal court of Atlanta (established in lieu of justices’ courts), could be amended, the proposed amendment, which set up as a defense to the recovery of rent the claim that the tenant was unable to use and occupy the premises, because of objections interposed by persons living in the neighborhood and adjacent to the rented premises, constituted no valid plea. In the rent contract there was no implied covenant on the part of the landlord that the premises rented were suitable or fitted for the particular use for which they were intended by the tenant, or that the tenant would not be disturbed or annoyed in his use of the premises by the acts of other persons, not under the control of the landlord. Sec Adair v. Allen, 18 Ga. App. 636 (89 S. E. 1099).

(a) If in fact the plaintiffs induced the defendant Wright (the maker of the notes indorsed by the other defendant) to execute the notes, by representing that he could occupy .peaceably the rented premises without objection on the part of third'persons residing in that locality, it does not .appear that there was any reason why Wright should have elected to accept this assurance on the part of the renting agents, without himself ascertaining the facts (see Tallent v. Crim, ante, 16 (90 S. E. 742, and cit.) ; nor does it appear that such representation, if made, amounted to more than an expression of an opinion on the part of these agents. See Wrenn V. Truitt, 116 Ga. 708 (43 S. E. 52) ; Martin v. Harwell, 115 Ga. 156 (41 S. E. 686) ; Tindall v. Harlcinson, 19 Ga. 448. Such representation, if made, 'could not have amounted to more than an expression of the personal conviction of the agents negotiating the loan, in whose name the suit was brought as lwlders of the notes, and could not have .amounted to a guarantee that adjacent property holders might not thereafter object to "the occupancy of the premises by the defendant Wright. 2. The appellate division of the municipal court of Atlanta did not err in overruling the motion for a new trial. Judgment affirmed.

Decided November 22, 1916.

Complaint; from municipal court of Atlanta. April 21, 1916.

Foster & StocJcbridge, for plaintiffs in error.

Moore é Pomeroy, W. P. Coles, contra.


text:
    7494.
    PRODUCERS NAVAL STORES CO. v. BREWTON.
    Blea in abatement and a traverse, with both the sheriff and the deputy sheriff as parties, were necessary, to raise an issue as to the truth of thé deputy sheriff’s return of service; and, the sheriff not being made a party, the traverse was a nullity. Failure to make this objection to the traverse did not cure this defect.
    Decided November 22, 1916.
    Traverse of return of service; from city court of Reidsville— Judge Collins. March 27, 1916.
    Bail-trover was brought by Brewton against the Producers Naval Stores Company, and the deputy sheriff made a return of service on the defendant. The return was traversed at the first term, and the deputy sheriff was made a party to the traverse, but the sheriff was not made a party. The defendant demurred to the plaintiff’s petition, an amendment to the petition was allowed, over objection, and the court overruled the demurrer. The issue made by the traverse was tried by a jury, and the verdict was against the traverse. The defendant made a motion for a new trial, on the grounds that the verdict was contrary to law and to the evidence; the motion was overruled, and it excepted, assigning error on that judgment, and on the allowance of the amendment to the petition and the overruling of the demurrer.

      E. E. Elders, for plaintiff in error, j. P. Moore, contra.
   Wade, C. J.

1. The return of service by the deputy sheriff was traversed, and he was duly made a party to the proceedings, by order of the court. There was, however, no attempt to make the sheriff also a party. • “Objections to the return of a deputy sheriff which shows legal service on a defendant must be raised before judgment, by a plea in abatement, and in connection therewith the return must be duly traversed, and both the sheriff and the deputy sheriff are necessary parties to the traverse.” Georgia Railway & Power Co. v. Davis, 14 Ga. App. 790 (82 S. E. 387). “When the record shows a valid return of service, and it is necessary to resort to extrinsic testimony to show that there has been no service, or that the service was for any reason invalid, the objection can be made only by plea in abatement (if before judgment), and in connection therewith the sheriffs return must be duly traversed. . . Being a dilatory plea, it must be filed at the first term, at least at the first term after notice, and must be sworn to. . . Unless duly traversed, the return of the sheriff is conclusive. If the return is made by a deputy sheriff, both the sheriff and the deputy sheriff must be parties to the traverse.” Bell v. N. O. & N. E. R. Co., 2 Ga. App. 812 (2), 816 (59 S. E. 102). When the sheriff is not made a party, as well as the deputy who made the return, “there is no such attack made upon the return as would justify, under the law, a judgment setting aside; and the proceedings had on such a defective traverse could amount to nothing where the traverse is not sustained, since the effect would be merely to f disallow’ the traverse and leave the original return, with all the solemnity properly attaching to it, untouched and conclusive as to the statements properly made in it.” Georgia Railway & Power Co. v. Davis, supra.

3. The sheriff and the sureties on his official bond were vitally interested in the question raised by the traverse to the return made by his deputy (O’Bryan v. Calhoun, 68 Ga. 215); and, in the absence of a proper traverse, with the sheriff a party thereto, as well as the deputy sheriff, the traverse was a mere nullity, and the return itself remained conclusive as to its recitals. The failure to object .on account of the fact that both the sheriff and his deputy were not made parties could not “vitalize that which falls short of what the law declares necessary in order to even raise an issue of this kind for trial; and it follows as a logical sequence that the _ entire attack made on the return of the sheriff, including the judgment of the court, and regardless of whether the court reached the right and proper conclusion upon legal and sufficient evidence or not, left matters exactly where they were when the attempted traverse was filed, to wit, with a legal and sufficient return from the officer, showing service upon the defendant, which is conclusive as to such service, in the absence of such an attack as constitutes the sole attack authorized by law.” Georgia Ry. & Power Co. v. Davis, supra. Judgment affirmed.


author: Hill, J.

text:
    7513.
    Atlantic Coast Line Railroad Co. et al. v. Savage.
    Decided November 22, 1916.
    Judge Hill, of the Atlanta Circuit, WAS DESIGNATED TO SIT INSTEAD OF JUDGE IÍODGES, WHO WAS DISQUALIFIED.
    Action for damages; from city court of Macon—Judge Hodges. May 5, 1916.
    Hardeman, Jones, Parle & Johnston, for plaintiffs in error.

      Robert L. Berner, contra.
   Hill, J.

The exceptions to extracts from the charge of the court, when considered in connection with the entire instructions, are without merit. In the instructions given, all the material issues made by the pleading and the evidence were covered clearly and correctly, and without injury to any contention of the defendant. The record makes no new or interesting question of law, and the verdict—the second for the plaintiff— was moderate and supported by the evidence. There was no error in refusing another trial. Judgment affirmed.


author: Broyles, J.

text:
    7558.
    Brooke & Company v. Cunningham Brothers.
   Broyles, J.

1. The refusal to strike an answer on motion, or the overruling of a demurrer, can not properly be assigned as error in a motion for a new trial. Willbanks v. Untriner, 98 Ga. 801 (25 S. E. 841) ; Mitchell v. Masury, 132 Ga. 360 (9), 361 (64 S. E. 275) ; Eldorado Jewelry Co. v. Hitchcock, 136 Ga. 22 (70 S. E. 658) ; Kelly v. Malone, 5 Ga. App. 618 (63 S. E. 639); Rodgers v. Hill-Williamson Co., 11 Ga. App. 133 (74 S. E. 899). There being no appropriate exception to the overruling of the demurrer to the answer, the question of the correctness of the court’s ruling in this particular is not before this court for determination.

2. Hearsay evidence is generally not admissible, but such evidence is admissible as to the market value of an article. The value or market price of an article may be shown by either direct or circumstantial evidence, or both (Atlantic Coast Line Railroad Co. v. Harris, 1 6a. App. 667, 57 S. E. 1030; Landrum v. Swann, 8 Ga. App. 209, 68 S. E. 862), and it is no objection to the evidence of a witness testifying as to the / market value of something that such evidence rests on hearsay. 1 Wharton on Evidence, § 449; Landrum v. Swann, supra.

3. There was no error in the admission in evidence of the night-telegram. 'This telegram, in connection with the other correspondence in the case, tended to show a valid contract made between the plaintiff and the defendant, and was admissible for what it was worth.

4. The written correspondence in the case, including the signed memorandum of the sale and its terms, given to Brooke & Company, the defendants in the court below, and signed by Branan-Seignious Company, was sufficient to take the contract out of the statute of frauds. The evidence showed conclusively that Branan-Seignious Company were ■ the agents of Cunningham Brothers, the plaintiffs, and had been, authorized by the latter, in writing, to sell several thousand bales of Bermuda hay ’at $9 per ton or better, and that, acting on this authority, Branan-Seignious Company sold to Brooke & Company ten carloads of such hay at the price authorized, gave to Brooke & Company a signed memorandum of the sale and its terms, and likewise sent a notice and memorandum of the sale to Cunningham Brothers, both by wire and letter. While the word “confirm” appears in the telegram sent to Cunningham Brothers by Branan-Seignious Company, in which the former were notified of the sale made by the latter to Brooke & Company, it is undisputed that Brooke & Company knew nothing of this telegram. Cunningham Brothers did not notify Brooke & Company or Branan-Seignious Company that the sale made by the brokers would not be accepted, nor that the hay would not be shipped. Branan-Seignious Company, in addition to the signed memoranda sent to both the plaintiff and the defendant, entered in their sales-book a memorandum showing the full and complete transaction between the parties. A broker’s memorandum as to the sale of property is sufficient evidence of the contract to satisfy the statute of frauds and to create a binding contract between the parties. Mohr v. Dillon, 80 Ga. 572 (5 S. E. 770); Lester v. Heidt, 86 Ga. 226 (12 S. E. 214, 10 L. R. A. 108) ; North v. Mendel, 73 Ga. 400 (2), 403 (54 Am. R. 879). The memorandum of the sale, made and signed by Branan-Seignious Company, was binding on both Cunningham Brothers and Brooke & Company, the evidence in the case' disclosing that the brokers, in the transaction involved, were not only the agents of Cunningham Brothers, but were also the agents of Brooke & Company. The written memorandum of these brokers, signed by them, was binding upon both parties and was sufficient to take the contract out of the statute of frauds. 19 Cyc. 191; Story on Agency (9th ed.), § 28; Lawrence v. Gallagher, 42 N. Y. Super. Ct. 309; Benjamin on Sales (2d ed.), §§ 275, 300, 301; Wharton on Agency, § 715; Schlesinger v. Texas & St. L. Ry. Co., 87 Mo. 146; Woods v. Rocchi, 32 La. 210.

5. The act of an agent in selling an article for his principal may be ratified by the principal, even if the agent was unauthorized in the first place to make the sale, and such ratification may be implied from the acts or the silence of the principal. Civil Code, § 3591. Where a principal is informed by his agent of what he has done, the principal must express his dissatisfaction within a reasonable time, otherwise his assent-to his agent’s acts will be presumed. Carnes v. Bleecker, 12 Johns. (N. Y.) 300; Foster v. Rockwell, 104 Mass. 170. Ratification will be inferred where the agent has notified the principal by letter of his act and the principal has not repudiated it. Unless the principal repudiates the act promptly or within a reasonable time, a ratification will be presumed. Bray v. Gunn, 53 Ga. 144; Owsley v. Woolhopter, 14 Ga. 124; Mapp v. Phillips, 32 Ga. 72; Smith v. Holbrook, 99 Ga. 256 (25 S. E. 627) ; Whitley v. James, 121 Ga. 521 (49 S. E. 600). Under the facts of this case, even if Branan-Seignious Company were unauthorized to make the sale to Brooke & Company for Cunningham Brothers, the latter’s conduct and silence, after knowledge of tlie contract, amounted in law to a ratification thereof.

Decided November 22, 1916.

Rehearing denied December 8, 1916.

Complaint; from municipal court of Atlanta. April 18, 1916.

Jones & Chambers, for plaintiffs in error.

Walter B. Brown, contra.

6. This was the second trial of the case, judgment having been rendered twice, by the trial 'judge sitting without the intervention of a jury, in favor of the defendants, Brooke & Company, against the plaintiff's, Cunningham Brothers, for the sum of $57, and costs, as a set-off against the demand of the plaintiffs. The judgment was authorized by the evidence; no error of law appears, and the appellate division of the municipal court of Atlanta (Eulton section) erred in granting the motion for a new trial. Judgment reversed.


text:
    7564, 7565.
    Colclough v. Walker; and vice versa.

    Decided November 22, 1916.
    Certiorari; from Fulton superior c'ourt—Judge Bell. March 18, 1916. .

      Nalley & Scott, for Colclough. G. N. Bynum, contra.
   Wade, C. J.

1. The judge of the superior court did not err in sustaining the certiorari. Waiving the question as to the authority of a judge of the municipal court of Atlanta to set aside a default judgment in that court after the expiration of the trial term, it appears from the record that the matters urged by the defendant in that court as a sufficient reason for setting aside the judgment against him were matters of defense which could have been presented'by plea in bar of such judgment. It does not appear that there was a sufficient legal excuse for the failure to interpose these defenses. Where failure to file a defense was due to the gross negligence of the defendant or of his counsel, it is not error to refuse to set aside a default judgment and reinstate a case, even though motion be made at the same term. Athens Leather Manufacturing Co. v. Myers, 98 Ga. 396, 397 (25 S. E. 503). Neither is the failure of a defendant to appear and' plead on account of an apparent misunderstanding between himself and his counsel, whereby no appearance whatever was entered, a sufficient ground for setting aside a default judgment. Moore v. Kelly & Jones Co., 109 Ga. 798 (35 S. E. 168).

2. Since the ruling of the judge of the superior court sustaining the certiorari in this case must finally govern the disposition of the case in the municipal court, and there was no question of fact that would make it necessary to send the case back for a new hearing in that court, the judge erred in net making a final decision in the case, instead of sending it back to that court. Civil Code, § 5201.

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


author: Bboyles, J.

text:
    7568.
    Geer v. Brown.
    Decided November 22, 1916.
    Certiorari; from Fulton superior court—Judge Bell. October 15, 1915

      Evins' & Moore, J. Earle Williams, for plaintiff in error.

      Hewlett, Dennis & Whitman, contra.
   Bboyles, J.

There was in this case a direct issue of fact, and the evidence thereon being conflicting, and the verdict and judgment rendered in the municipal court of Atlanta not being demanded, either by the law or the evidence, or by both, under the repeated and uniform rulings of this court and of the Supreme Court the discretion of the judge of the superior court in sustaining the certiorari and granting a first new trial (the order sustaining the certiorari and granting a new trial not being based on any special ground) will not be disturbed.

Judgment affirmed.


text:
    7674.
    Toole v. Jones.
    Decided November 22, 1916.
    Complaint; from city court of Miller county—Judge Geer. May 6, 1916.

      N. L. Stapleton, for plaintiff in error. P. D. Rich, contra.
   Broyles, J.

In this case the motion for a new trial contained only the usual general grounds. There was some slight evidence authorizing the verdict; and, the verdict having been approved by the trial judge, under the repeated and uniform rulings of this court and of the Supreme Court a reviewing court is powerless to interfere. When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but whenever there is any evidence, however slight, ¡to support a verdict’which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.

Judgment affirmed.


text:
    7597.
    DICKSON v. DAVIS & FREEMAN INCORPORATED.
    Whether the minds of the vendor and the vendee met as to the purchase-price of the article sold was purely a question of fact; and,- since there was positive and unequivocal testimony that the. amount sued for was the price agreed upon by the parties at the time of the sale, the finding to that effect by the judge of the municipal court, sitting without the intervention of a jury, can.not be set_ aside by this court.
    Decided November 22, 1916.
    Complaint; from municipal court of Atlanta. May 12, 1916.

      Westmoreland & Westmoreland, for plaintiff in error.
   Wade, C. J.

It is unnecessary to add to the ruling above, but a short statement of the questions at i$sue, together with some of the evidence adduced at the trial, will not be amiss. Suit was brought by Davis & Freeman Incorporated against Dickson, to recover $105, alleged to be due as the balance of the purchase-price of $185, for a La Yalliere sold to him for presentation to a young lady in his employ as a' reward for some special and successful efforts on her part in the sale of certain stocks or bonds. Both the defendant and the woman employee to whom he presented the piece of jewelry, the price of which was sued for, testified that the defendant expressed to Davis, of the plaintiff company, a desire to expend about $40 or $50, and not exceeding $60, for the proposed gift, and that finally Davis exhibited the article actually sold, and priced it at $85, which amount the defendant at lefigth agreed to pay, and thereupon directed Davis to charge him with the price thereof, and then and there delivered the article itself to the young woman for whom it was intended. Both Dickson and his employee testified positively that $185 was not mentioned as the price of the article, and that he never agreed to pay any such sum therefor. On the other hand, Davis testified positively that $185 was the price fixed by him for the piece of jewelry, and that the defendant agreed to pay this sum. Davis’s testimony in full, both on direct and cross-examination, appears in the record as follows: “In December, 1912, I was in the jewelry business in Atlanta, Ga. About the 12th or 15th of December, 1912, about 7 .o’clock p. m., Mr. John D. Dickson and a. young lady came into my store and wanted to see some La Yallieres. I waited on them myself, as I was the only one in the store at that time. I showed them several, and then I showed them one and priced it at $185. It was on a card which had marked on it $185 in plain numerals. They liked that one and took it. Mr. Dickson tried to make me come down in the price, but I told him that it was a one-price store. I made out a price ticket and put it in the drawer immediately after they left. He tried to get me to reduce the price from $185 to $150, and then to $175, but I told him I had only oné price. Mr. Dickson was to pay for it by the month, and the statement was to be sent to him on the first day of February. It was a La Yalliere that sold for $185 on the market, and that was the purchase-price of it. I was out of the city the month of January, in Florida, and while away Mr. Latham, my bookkeeper, wrote me that there was some mistake as to the La Yalliere Mr. Dickson bought, and that Mr. Dickson claimed that he owed only $85, instead of $185, and Mr. Latham told Mr. Dickson that I would take the matter up with him as soon as I returned to the city. I did not return to the city until the latter part of February, 1913. When Mr. Dickson and the young lady came in, Mr. Dickson said that he wanted to buy a La Yalliere, something about forty-five or fifty dollars, and not over sixty. He was to pay for it by the month, and statement was to be sent to him on the first of February, 1913.”

It is apparent that if this testimony be accepted as the truth of the transaction, there was no mistake of fact at the time the sale was made, but Davis fixed the price at $185 and Dickson agreed to pay this specific amount. In fact, under the testimony of Davis, it can not even be assumed that Dickson misunderstood the amount which he was to pay for the piece of jewelry, for Davis testified: Dickson “tried to get me to reduce the price from $185 to $150, and then to $175, but I told him I had only one price,” to wit, $185, stated to Dickson, and which. Davis declared was the price , marked in plain figures on the card to which the La Yalliere was attached. This testimony to the effect that they dickered over the price to be paid for the piece of jewelry negatives the suggestion that (so far as the testimony for the plaintiff is concerned) there was or could have been any mistake of fact between the parties to the transaction. It is true that the evidence for the defendant would tend to show that a mistake of fact was actually made, but the trial judge, who exercised in this case the function of a jury, must have accepted as true the evidence for the plaintiff, to the effect that the price sued for was fixed by the seller and agreed to by the buyer, and therefore that the minds of the parties met and a contract resulted to pay the price sued for by the vendor; and this court is without authority to set aside a verdict sufficiently supported by evidence. What indeed may have been the truth of the transaction, and whether or not the testimony in behalf of the plaintiff should rather have been credited by the trial judge than that in behalf of the defendant, was a question for that judge, and not for this court. It is unnecessary to enter the realm of conjecture so far as the determination of this case is concerned, in-order to decide what judgment should have been rendered by the trial court if there had been no evidence to support the finding that a contract was made between the parties, and absolutely denying the' possibility of any mistake as to the price.

The entire ease as presented by the record turns altogether upon a question of fact; and it is not within the province of this court to interfere with the judgment rendered, unless there was no evidence to support the judgment and it was for that reason contrary to law. Judgment affirmed.


author: Hodges, J.

text:
    7613.
    LAMB, receiver, v. WHITMAN.
    The court did not err in directing that the fund raised by the garnishee from the sale made under the agreement between himself and the plaintiff in the garnishment be paid to the clerk of the court, to be applied to the plaintiff’s judgment. The court had jurisdiction to direct this disposition of the fund although the garnishee was a receiver appointed by the Federal court and'the property sold came into his hands as such.
    Decided November 22, 1916.
    Petition; from city court of Waycross—Judge McDonald. May 22, 1916.

      Bolling Whitfield, J. L. Sweat, Brandon & Jlynds, for plaintiff in error. Baríes & Reed, contra.
   Hodges, J.

Pending an appeal taken by the plaintiff in error in this court from the original judgment distributing the fund under garnishment, the parties to the case entered into the following agreement: “It is consented and agreed by and between counsel for the plaintiff and garnishee in above-stated case that said garnishee do now proceed to advertise for sale on the first Tuesday in July next that certain carload of hay shipped in ear N. Y. C. 105331, order notify Whitman Commission Company, Waycross, Georgia, by J. L. Shultz & Company, Skaneateles, N. Y., and refused by the said Whitman Commission Company, held in possession by said garnishee and stored in the Farmers Warehouse in the City of Waycross, and, upon selling same for cash at public auction before the court-house door of Ware county, Georgia, on said day of sale, after deducting and paying the storage charges of the 'Farmers Warehouse Company, together with all expenses incident to such sale, including the cost of advertising, that the balance of the proceeds of such sale be deposited by said garnishee in the First National Bank of Way cross, and that the same be held in lieu of said carload- of hay, subject to the judgment heretofore rendered in said case, and to be applied in accordance with the further and final direction of the court in the premises.” The original judgment in the ease was in favor of Whitman, and directed that out of the fund the garnishee, Lamb, receiver for the railroad company, be paid the amount of certain claims for freight, demurrage, storage, and other charges against the carload of hay sold. This judgment was affirmed by this court in the case of Lamb v. Whitman, 17 Ga. App. 687 (87 S. E. 1095). Under the agreement recited above, the unsold carload of hay in the hands of the garnishee was sold, and the fund arising from the sale was placed'on deposit in the bank named in the agreement, to the credit of the custodian agreed upon by.the parties. It appears from the record that the garnishee has now in his hands the amount arising from the sale of another carload of hay, in addition to the sum held by the custodian, and that the garnishee refuses to pay Whitman the amount awarded him by the judgment. This fund in the hands of the custodian under the agreement is within the jurisdiction of the court, and the court has plenary power over its distribution. The judgment excepted to provided that the custodian pay to the clerk the sum in his hands, and that the clerk, after paying the costs of the proceeding, pay the' balance to Whitman as a credit on the amount of the judgment already rendered against the garnishee.

No error was committed by the trial judge. The question of jurisdiction is controlled by the United States Judicial Code, § 66. This section “was intended to place receivers upon the same plane with railroad companies, both as respects their liability to be sued for acts done while operating a railroad and as respects the mode of service.” Eddy v. Lafayette, 163 U. S. 456, 464 (16 Sup. Ct. 1082 41 L. ed. 225). The proceeding is simply ancillary to the judgment originally rendered in the case. The court does not grant equitable relief, in a legal sense, in enforcing such an agreement made in a pending case. From the terms of the agreement the right to sell the property arose, and the law will not permit the garnishee, who acted on the agreement, to question the right of the court to enforce it. Judgment affirmed.


text:
    7658.
    BALTIMORE & OHIO RAILROAD COMPANY v. MONTGOMERY & COMPANY.
    Under the facts of the case the defendant was the initial carrier and was liable for the damage to the shipment involved.
    Decided November 22, 1916.
    Action for damages; from municipal court of Atlanta. June 33, 1916.

      King & Spalding, for plaintiff in error.

      Moore & Pomeroy, contra.
   Broyles, J.

While in a suit for damage to an interstate shipment handled by more than one carrier, the provisions of what is known as the “Carmack amendment” (Act of June 29, 1906, 34 Stat. 593, c. 3591) to the act of Congress known as the “Hepburn act” (the act of February 4,1887, 24 Stat. 379, c. 104, H. S. Comp. St. 1913, § 8592, pars. 11, 12) do not require that the suit shall in all cases be brought against the initial carrier (Georgia, Florida & Alabama Ry. Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. ed. 948; Central of Georgia Ry. Co. v. Waxelbaum Produce Co., 18 Ga. App. 489, 89 S. E. 635), yet, under the facts of the instant case, the defendant railroad company would not be liable to the plaintiff, if it was not the initial carrier of the shipment; and the sole question for determination is, was the defendant the initial carrier? There is no dispute as to the facts in the case. The Branch Mountain Orchard Company, the shipper, delivered to the Baltimore & Ohio Railroad Company, the initial carrier, at Moorefield, West Yirginia, on August 22, 1915, a carload of peaches in B. & 0. refrigerator car No. 14773; and the railroad company on the samé day issued to the shipper a bill of lading, in which the destination given was Richmond, Yirginia, and the consignee Montgomery & Company at Richmond, Yirginia. This car was delivered by the Baltimore & Ohio Railroad Company to the Richmond, Fredericksburg & Potomac Railroad Company, at Potomac Yard, Yirginia, and arrived at Richmond, Yirginia, August 24,1915, where the contents of the car were inspected by Montgomery & Company and found to be in good condition. On the same 'date this car was delivered to the Atlantic Coast Line Railroad Company at Richmond, and was reshipped to E. B. Stewart & Company, Atlanta, Georgia, upon the original hill of lading issued by the defendant. The bill of lading issued by the Baltimore & Ohio Railroad Company was the only bill of lading issued during the transit of the shipment. It was undisputed that Montgomery & Company were the lawful holders of this bill of lading.

The Federal interstate commerce act,, as amended, expressly provides that the initial carrier shall issue a receipt or bill of lading, and shall be liable to the lawful holder thereof for any loss, damage, or injury to the property, caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered, or over whose lines such property may pass. In interstate shipments the consignee is the presumptive owner, and has the right to direct a change in the destination of the shipment. Hutchinson on Carriers, § 735. When the defendant, the initial carrier, issued the bill of lading in which Montgomery & Company were named as the consignee, it was with the knowledge that the law gave this consignee the right to change the destination, and with the knowledge that the law put upon it (the initial carrier) the burden of paying for damage to the shipment, if any was sustained, whether the damage was caused by the defendant or by a connecting carrier. The destination was changed from Richmond to Atlanta by the consignee. The shipment was carried from the point of origin,—Moorefield, West Virginia,—to Atlanta, Georgia, under one contract,—the bill of lading issued by the defendant company,—and the shipment moved under a through rate of freight from the point,of origin to Atlanta, the final destination, as appears from the freight bill. If the defendant or its connection had delivered the shipment at Richmond, demanded a surrender of its bill of lading, and there collected its freight charges, and thereafter a new bill of lading had been issued for the shipment from Richmond, Virginia, to Atlanta, then there would have been a new shipment, and the railroad issuing this second bill of lading at Richmond would have been the initial carrier of the shipment from Richmond to Atlanta. In this connection see Myers v. Norfolk Southern R. Co., 171 N. C. 190 (88 S. E. 149). ITnder the evidence adduced, the only contract made was by the defendant company, as represented by its bill of lading. The shipment moved from Moorefield, West Virginia, to Atlanta, Georgia, under that bill of lading; the freight was paid in Atlanta for the transporta-* tion not merely from Richmond to Atlanta, but for the entire journey from Moorefield to Atlanta.

Learned counsel for the plaintiff in error cite the case of Parker-Bell Lumber Co. v. Great Northern Ry. Co., 69 Wash. 123 (124 Pac. 389, 41 L. R. A. (N. S.) 1064), as authority for the proposition that the initial carrier is not bound where the property is reconsigned by the consignee. The facts in that case, however, were that a carload of shingles was delivered to the Great Northern Railway for shipment from Sisco, Washington, to Kankakee, Illinois. The railroad company issued its bill of lading and routed the shipment over its own line of railway, and the lines of the* Chicago, Burlington & Quincy Railroad Company, the Indiana, Illinois & Iowa Railroad Company, and the Chicago, Indiana & Southern Railroad Company, which lines together form a continuous line of railway from Sisco, Washington, to Kankakee, Illinois. The shipper, without notice to the Great Northern Railway Company, instructed the final connecting carrier named in the bill of lading, and over whose line the shipment arrived at Kankakee, to divert the shipment to Palisades Park, New Jersey. That carrier, upon receiving such instructions, issued a new bill of lading, reciting the shipment of the carload of shingles from the Parker-Bell Lumber Co. at Kankakee, Ill., to Palisades Park, N. J., and forwarded the shipment over a new line of connecting railways to its new destination. Under such facts the Supreme Court of Washington held that the Great Northern Railway Company was not liable for damages to the shingles incurred while they were being transported to the new point of destination, to wit, from Kankakee, 111., to Palisades Park, N. J.

Under all the facts of the instant case, the defendant railroad company was the initial carrier of the shipment involved; and the appellate division of the municipal court of Atlanta (Fulton section) did not err in overruling the motion for a new trial.

Judgment affirmed.


text:
    7716.
    McCOY v. THE STATE.
    1. The indictment was not subject to demurrer on the ground that it failed to show whether the larceny after trust charged therein was the offense defined in section 192, or one defined in section 189, of the Penal Code of 1910. The indictment was based on section 192, the charge being that the accused was intrusted by a named person with a stated sum of money “for the purpose of applying the same for the benefit of” that person, and, after having been so intrusted, fraudulently converted it to his own use.
    2. Evidence authorizing a finding that in the county named in the indictment the accused was intrusted with money, and that afterwards he fraudulently converted it to his own use, is sufficient to warrant a finding that the conversion took place in that county, when there -is no evidence that he ever left the county or that the conversion was made elsewhere.
    . 3. The provision of section 192 of the Penal Code of 1910, that where the , money or other thing fraudulently converted “does not exceed fifty dollars in value, the punishment shall be as for a misdemeanor,” is not applicable where the 'money is delivered in installments as parts of a larger sum under a single agreement, and more than fifty dollars so delivered is fraudulently converted, although no single installment exceeds fifty dollars.
    4. The court did not err in charging the jury to the effect that if there was a fraudulent conversion, a subsequent offer to pay back the money would not “affect the crime.”
    5. The evidence authorized the verdict; and there is no merit in any of the assignments of error.
    Decided November 22, 1916.
    Indictment for larceny after trust; from Fulton superior court— Judge B. H. Hill. July 8, 1916.

      T. J. Ripley, R. Shropshire, for plaintiff in error.

      Eh. T. Williams, solicitor-general, A. L. Ivey, contra.
   Hodges, J.

McCoy was charged with the offense of larceny after trust, and the jury found him guilty. According to the testimony for the State, McCoy sought out the prosecutrix and told her that he was in the real estate business and was agent for the, sale of a piece of real estate, which he would sell her for $1,300— $300 cash and the balance in installments; that if she paid him the $300 cash he would send the money to the owner and get her a bond for title from the owner; and she paid him at different times, in separate amounts, the aggregate amount of $300, which he unlawfully and fraudulently converted to his own use. McCoy contended that if she paid him the money, her only right would be to sue him and get a judgment against him. He further contended that, through his attorney, he made an oiler to pay back a certain portion of the money. The accused made no statement at the trial, and the only evidence he offered was the testimony of one witness upon the offer of compromise, and a certain bond for title covering the property involved in the case.

1. As the case was submitted to this court by brief, the assignments of error relied on in the brief will be disposed of seriatim. A general and special demurrer to the indictment was filed. The exception to the overruling of the general demurrer is abandoned, but the plaintiff in error insists upon the grounds set forth in the special demurrer. He contends that there are two sections of the Penal Code under which he could be prosecuted. In one the penalty is from two to seven years, in the other from one to five years. He insists that having specially demurred to the indictment, he had a right to know for which crime and under which section he was being prosecuted, and that the State should have been required to elect and state on which section the indictment was based. Under section 189 of the Penal Code, if any bailee with whom money is intrusted or deposited shall fraudulently convert it or any part of it to his own use, he is punishable for a term of not less than two years nor longer than seven years. Under section 192 of the Penal Code, if any person, being instrusted by another with any money “for the purpose of applying the same for the use or benefit of the person delivering it, shall fraudulently convert the same to his oivn use,” he is punishable for not less than one nor longer than five years. It is manifest that under § 192 it is necessary to allege in the indictment that the money intrusted was intrusted “for the purpose of applying the same for the rise or benefit of the owner or person delivering it,” while under § 189 such an allegation is unnecessary, it being there provided that if a “bailee with whom any money . . may be intrusted or deposited' shall fraudulently convert the same or any part thereof to his own use,” etc., he shall be punishable for not less than two nor longer than seven years. The indictment charged the accused with the offense of larceny after trust, “for that said accused, in the County of Fulton and State of Georgia, on the 1st day of August, 1915, with force and arms, having been intrusted by Nancy Wilson with three'hundred dollars ($300.00) in money of the value of three hundred dollars, and the property of the said Nancy Wilson, for the purpose of applying the same for the use and benefit of the said Nancy Wilson, after having been so intrusted, did wrongfully, fraudulently, and feloniously convert said three hundred dollars to his, the said Noah McCoy’s, own use.” It will be observed that the indictment alleges that the money was intrusted to the accused “for the purpose of applying the same for the use and benefit of the said Nancy Wilson;” and no such allegation as to the purpose for which the money ‘was intrusted is necessary under § 189, while such an averment is essential under § 193. This allegation confines the indictment to § 193, and clearly demonstrates that it was framed under the terms of that section. An indictment framed under § 189 can not be based upon § 193, and an indictment framed under § 193 can not be maintained under the terms of § 189. There is no law requiring the State to inform the accused as to the law of the case, and there wras no error on the part of the court in not requiring the solicitor-general so to do.

3. It is contended that the venue of the crime was not shown upon the trial. The testimony of the prosecutrix on this point is as follows: “I paid him $385 in money, to pay on. the place at 96 Bawson street, Atlanta, and I paid him all the money in Fulton county, Georgia.” “Evidence authorizing a finding that the accused was in a particular county intrusted with money, and that he thereafter fraudulently converted the same to his own use, is sufficient to warrant a finding that the conversion took place in that county, when there is no evidence showing that he ever left the county, or tending to establish the fact that the conversion was made beyond its limits.” Keys v. State, 112 Ga. 392 (37 S. E. 762, 81 Am. St. R. 63); Bowen v. State, 16 Ga. App. 179 (84 S. E. 793).

3. In the brief of counsel it is contended that “the defendant was entitled to be convicted for a misdemeanor, and not a felony,” in that the evidence failed to disclose that more than $50 was taken at any one time; and that if he was guilty, the amount taken at each time did not exceed $50, and that in no instance, if he fraudulently converted the money, had he committed a felony. It appears, from the evidence, that the prosecutrix made an agreement with the defendant to purchase a certain piece of land, and that from time to time, in pursuance of the terms of the contract, she paid him certain installments, which he converted to his own use. The entire transaction was based upon the original contract for the purchase of the land, the prosecutrix agreeing to pay a certain amount in installments and the defendant undertaking to pay over the money to the owner of the property and get a bond for title for her. There was a series of conversions, continuous overt acts, governed and controlled by one criminal intent on the part of the accused, and that was to convert to his own use the money received from the prosecutrix under the contract. Under the law it matters not how many conversions, separate and distinct, it took to consume the total sum paid to him; it was all one continuous act. In Jackson v. State, 76 Ga. 551, the indictment alleged that Jackson, the president of-a manufacturing company, had converted to his , own use the sum of $117,667.24, and set out the several items embezzled from June 7, 1879, to October 23, 1882. The indictment contained one count, and the court held that it was proper for the solicitor-general to charge in one count the entire amount embezzled, without setting forth the separate items embezzled and the time of the embezzlements. From a careful reading of the record in Jackson’s case it is clear that the State is not required to prosecute one for a misdemeanor where the crime was committed with a single intent, though the separate items fraudulently converted did not in any single instance exceed $50. If the testimony for the State is true, the total amount paid to the accused exceeded $50, and this amount he converted in smaller sums at separate and distinct times when paid to him under the contract; and there is no law to prevent the State from prosecuting the case as a felony.

4. Exceptions are taken to the instruction of the court that any offer on the part of the accused to pay back the money “would not affect the crime, if any;” that after the conversion, if there was r, conversion, a settlement of the case without authority of the court would be compounding a felony. The accused contended that under the law he had the right to pay back the money and stop the prosecution; that the greatest amount of money taken at any one time was $50, making the offense a misdemeanor; and that he had the right to settle a misdemeanor. If the evidence for the State is true, an attempt to pay back the money or any part thereof fraudulently converted on the part of the accused, after the conversion, would be an attempt to compound a felony; and the court did not err in instructing the jury to that effect.

6. There is no merit in any of the assignments of error. The verdict was authorized by the evidence, and the court did not err in refusing to grant a new trial. Judgment affirmed.


text:
    7849.
    Stapleton v. The State.
   Broyles, J.

1. In the prosecution of a director of a bank, under section 204 of the Penal Code, grand jurors who returned the indictment were not disqualified for the reason that they were related within the prohibited degree to depositors in the bank, or were themselves such depositors; nor was the solicitor-general who prosecuted the case disqualified for a like reason. Griffin v. State, 18 Ga. App. 403 (4) (89 S. E. 625). Moreover, this objection was propter affectum, and should have been urged before the indictment was found; it being too late to make such an objection afterwards. Williams v. State, 69 Ga. 12; Turner v. State, 78 Ga. 174; Lascelles v. State, 90 Ga. 347, 372 (16 S. E. 945); Fisher v. State, 93 Ga. 309 (20 S. E. 329); Mills v. State, 57 Ga. 610; Simpson v. State, 110 Ga. 249 (34 S. E. 204); Edwards v. State, 121 Ga. 590 (49 S. E. 674); Hall v. State, 7 Ga. App. 115 (66 S. E. 390) ; Cabaniss v. State, 8 Ga. App. 129 (4), 136 (68 S. E. 849) ; Garnett v. State, 10 Ga. App. 109, 112 (72 S. E. 951); Barlow v. State, 13 Ga. App. 306 (79 S. E. 93). The case of Nichols v. State. 17 Ga. App. 593 (87 S. E. 817), in which this court held that an objection propter affectum (to an interested, and therefore disqualified, solicitor-general who had appeared before the grand jury and secured an indictment against the defendant) could be made after the indictment had been returned, was, under all its particular and peculiar facts, an exceptional one, and that ruling will not be extended to apply to the objections propter affectum in the instant ease. Accordingly, the court did not err in sustaining the State’s special demurrer to paragraphs 2 and 3 of the defendant’s plea in abatement, and in striking these paragraphs.

2. The remaining paragraphs of the plea in abatement were traversed by the State. The court did not err in directing a verdict against the plea in abatement and in favor of the traverse; the evidence adduced upon this issue showing that the superior court of Grady county was legally organized at the special term at which the indictment against the defendant was returned, and that the witnesses upon whose testimony the indictment was returned were properly sworn, or that at least two of them were, and as this ground of the plea in abatement alleged that “the witnesses on whose alleged testimony the said charges against this defendant are founded were not sworn before the grand jury as prescribed by law, nor was any witness so sworn in said ease" (italics ours), this ground of the plea in abatement was defective. While a demurrer to it could have been interposed (Bird v. State, 50 Ga. 585; Reich v. State, 53 Ga. 74, 21 Am. R. 265), the same result was reached through the verdict directed by the court.

3. The indictment in- this ease was in all material respects similar to that in Youmans V. State, 7 Ga. App. 101 (66 S. E. 383), which this court held to be sufficient; and there was no error in overruling the demurrer interposed. This court declines to review the decisions in Youmans v. State, supra, and Griffin v. State, 15 Ga. App. 520 (83 S. E. 891), in which it is held that, under section 204 of the Penal Code, proof of insolvency of the bank creates a presumption that the insolvency was caused by fraudulent practices on the part of its president or directors, and that this section declares a rule of evidence under which certain acts are deemed presumptive evidence of a fraudulent intent in committing them.

4. The trial judge did not err in holding that he was qualified to try the case, and in overruling the motion to declare himself disqualified. The judge was not disqualified because of relationship within the prohibited degree to a depositor or creditor of the bank, for the “wrecking” of which the defendant was being tried. Griffin v. State, 18 Ga. App. 403 (89 S. E. 625). Neither was the judge disqualified for the reason that he had on March 3, 1915, upon the presentation of a petition by the State of Georgia for the appointment of a receiver of said bank, entered his disqualification to preside in the case because of his relationship to stockholders in the bank. This ruling was made by the judge in a civil ease, the pleadings of which are not before this court, and the order of the judge there holding himself disqualified fails to show what this relationship was. The facts in the civil case may have been different from those in the instant case. The undisputed evidence shows that the judge was related by blood to a stockholder of the bank, but it does not show what this relationship was, or whether it was within the prohibited degree. It is immaterial that the judge, in announcing his ruling upon the motion for his disqualification, stated in substance that the reason he held himself to be qualified was that after he had held himself disqualified, and between the time that the temporary receiver was appointed for the bank and the appointment of a permanent receiver for the same, the stockholder to whom he was related had transferred his shares of stock. 'The judgment of the trial judge that he was qualified to try the ease being correct, it matters not that he gave an erroneous reason therefor.

5. While some of the excerpts from the charge excepted to are subject to criticism, none of them, when considered in the light of the entire charge and of the facts in the ease, require the grant of a new trial.

6. There is no merit in the complaint that the court, after giving certain instructions to the jury and after the jury had retired to consider their verdict, caused them to be brought back, withdrew the former instructions, and gave them other and new instructions, it appearing that the court made the last charge at the request of the jury because they were confused by his former instructions.

7. It was not error to admit in evidence the petition brought by the State of Georgia against the Bank of Whigham, praying for the appointment of a receiver to take charge of the said bank, under the following statement of the solicitor-general: “I will state, if your honor please, that we offer this simply for the purpose of showing that Mr. Crawford [one of the coreceivers of the bank, and a witness in the case] has custody of the books and records; we do not offer the document in evidence for the purpose of showing insolvency.” See, in this connection, Griffin v. State, 18 Ga. App. 403 (5) (89 S. E. 625).

8. One of the grounds of the motion for a new trial is that the court allowed W. T. Crawford, receiver of ’the bank, to testify, over the objection of the defendant, in substance, that if the liabilities of the bank amounted to $140,000 in round numbers, and if the assets were not worth $140,000, then the bank would be insolvent. If this testimony was a mere conclusion of the witness, as claimed by the plaintiff in error, it was an obvious conclusion drawn from the facts adduced, and certainly the defendant was not injured thereby; for if the same facts had been submitted to, the jury, they must inevitably have come to the same conclusion as did the witness.

9. The sequestration of witnesses during the trial is always a matter in the discretion of the court. Under the facts stated, it does not appear that error was committed in allowing a person, who had been sworn as a witness for the defense, to remain in the court-room during the trial.

10. There is no merit in the 14th ground of the amendment to the motion for a new trial.

11. During the cross-examination of W. T. Crawfdrd, a witness for the State, the following colloquy took place: Defendant’s counsel (to witness) : “I believe you said that there was $3,000 collected by Mr. S. P. Kane as attorney for the Citizens & Southern-Bank of Savannah and deposited in the Bank of Whigham to the credit of S. P. Kane, attorney?” Witness: “I don’t think I testified that.” Solicitor-general: “Your honor, we insist that there has been no such testimony.” The court: “I understand there has been no such testimony as that.” The rule is that the judge can not express or intimate his opinion as to what has or has not been proved in the case (Penal Code, § 1058; Civil Code § 4863), but he can state, in a colloquy with counsel in the case, whether or not a certain witness has been on the stand, or give his recollection as to whether or not the witness testified to some particlar fact. “The statement by the court that a witness said a certain thing, is proper, and is not, in a legal sense, the expression of an opinion as to the evidence. What is sworn to is testimony; what is truth deduced therefrom is evidence. The judge must say, when there is dispute among counsel, what the witness said on the stand, and he is only prohibited from expressing his opinion as to its truth or its weight.” "Williams v. Hart, 65 Ga. 201 (5), 208. See also Barnes v. State, 89 Ga. 316 (15 S. E. 313).

12. The 16th ground of the amendment to the motion for a new trial, not being referred to in the brief of counsel for the plaintiff in error, is considered abandoned.

13. Prejudicial remarks.made by the court in the hearing of the jury furnish no ground for a new trial, but in such a case a motion to declare . a mistrial should be made, and upon the judge’s refusal to grant this • motion his ruling would be subject to review. Counsel having failed to make such a motion and having proceeded with the trial without objection, he can not in a motion for a new trial raise a question as to the prejudicial nature of the remarks complained of. Perdue v. State, 135 Ga. 277 (69 S. E. 184) ; Rogers v. State, 18 Ga. App. 332 (89 S. E. 460) ; Cent. Dig., Crim. Law, §§ 2163, 2182. Under this ruling the 17th ground of the amendment to the motion for a new trial is without merit.

Decided November 22, 1916.

Rehearing denied December 8, 1916.

Indictment for fraudulent insolvency of bank;.from Grady superior court—Judge Cox. August 1916.

M. L. Ledford, Boscoe Luke, for plaintiff in error.

B. 0. Bell, solicitor-general, F. A. Hooper, W. V. Ouster, contra.

14. One who is related within the prohibited degree to a mere depositor of a bank is not incompetent to sit as a juror upon the trial of the president of the bank, or upon the trial of a director of the bank, on the charge of violating section 204 of the Penal Code 1910. Griffin v. State, 18 Ga. App. 403 (4) (89 S. E. 625). Under this ruling the 18th ground of the amendment to the motion for a new trial is without merit.

15. The fact that one of the jurors was not upon the jury list of the county is an objection propter defectum, and arises too late when not made until after the verdict, though the movant did not previously know 'the fact alleged. Gormley v. Laramore, 40 Ga. 253; Anderson v. Green, 46 Ga. 361, 386; Edwards v. State, 53 Ga. 428; Hill v. State, 64 Ga. 452, 455; Brown v. State, 105 Ga. 640 (31 S. E. 557) ; Dasher v. State, 113 Ga. 3 (38 S. E. 348).

16. There was some proof as to the insolvency of the bank; the verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial. Judgment affirmed.


text:
    7857.
    McDuffie v. The State.
   Wade, C. J.

1. “Sale, or exchange, is a transmutation of property from one man to another, in consideration of some price or recompense in value.” 2 Blaekstone’s Com. 446. Though often used in a more limited sense, embracing only those contracts which are founded upon a money consideration (DeBary v. Dunne, 172 Fed. 940; Skirvin v. O’Brien, 43 Tex. Civ. App. 1, 95 S. W. 696, 700; Lucas v. County Recorder of Cass County, 75 Neb. 351, 106 N. W. 217, 220), a “sale,” in its broadest sense, comprehends any contract for the transfer of property from one person to another for a valuable consideration (Cole v. Laird, 121 Iowa, 146, 96 N. W. 744, 745; Micks v. Stevenson, 22 Ind. App. 475, 478, 51 N. E. 492) ; and the word “sell,” in section 722 of the Penal Code of 1910 (which makes it a misdemeanor for one to sell or encumber personal property held by him under a conditional purchase and sale, where, by the terms of the purchase, the title is retained by the vendor until the purchase-money is paid, if there be an intent on his part to defraud the vendor or defeat his rights, “or when such selling or encumbering the property tends to the injury of the vendor”). is to be construed in its broad sense, and therefore includes what is commonly known as barter and exchange. See James v. State, 124 Ga. 72 (52 S. E. 295), and Howell v. State, 124 Ga. 698, 700 (52 S. E. 649), Construing the word “sale,” in an act prohibiting the sale of intoxicating liquors, to include a transfer of such liquor for a valuable consideration other than money. See also State v. Fulman, 7 Penne. (Del.) 123 (74 Atl. I).’

Decided November 22, 1916.

Indictment for misdemeanor; from Wilcox superior court-judge George. August 19, 1916.

Tbe indictment charged that J. D. McDuffie, having given to Benton Martin Mule Company a paper retaining title to a described mule, to secure a debt of $100, the purchase-price of the mule, did, without the consent of the said company and with intent to defraud them, “sell and dispose of” the mule without payment of the debt and to the loss and damage of the said company in the sum of $100.

M. B. Cannon, for' plaintiff in error. J. B. Wall, solicitor-general, Jesse Grantham, Hal Lawson, contra.

2. The defendant was indicted under section 722 of the Penal Code, supra, and the evidence showed that a mule, which he held under a contract retaining title in the vendor until payment of the purchase-price, was transferred by him to another person for a valuable consideration, to wit, a mule, accepted by him in barter or exchange therefor, without the consent or approval of the said vendor and to the injury of the vendor. This proof showed a sale in contemplation of that section of the Penal Code. Any other holding would plainly nullify the purpose of this section.

3. The court did not err in excluding testimony offered to show that the mule to which title was retained by the vendor and which the defendant traded off was not suitable for the particular purpose for which the defendant had purchased it. The note of the trial judge recites that the defendant did not offer to show that the mule disposed of was totally worthless, or that he paid the full value thereof, and that therefore no actual injury to the vendor resulted from the act of the accused.

4. Whether or not the sale of the mule held under a conditional contract of purchase, retaining title in the vendor, was made by the defendant with intent to defraud the said- vendor was a question for the jury, under all the facts and circumstances of the case; and, there being-evidence to support their finding, the trial judge did not err in overruling the new motion for a new trial. Judgment affirmed.


text:
    7864.
    Bell v. The State.
    Decided November 22, 1916.
   Wade, C. J.

1. A brief of evidence is essential to the validity of a motion for a new trial (Civil Code, §§ 6889, 6306; Moxley v. Georgia Ry. &c. Co., 122 Ga. 493 (50 S. E. 339)); and when no brief of evidence appears to have been filed, a bill of exceptions assigning error upon the overruling of a motion for a new trial must be dismissed. Brooks v. Proctor, 111 Ga. 835 (36 S. E. 99). See also Collum v. Brown, 102 Ga. 589 (27 S. E 789) ; Whitaker v. State, 138 Ga. 139, 140 (75 S. E. 254). Such a brief “is an indispensable statutory requisite to a valid motion for a new trial . . even though the verdict be directed by the court, and even though the motion be based on grounds which do not require a consideration of the evidence.” Georgia Railway & Electric Co. v. Hamer, 1 Ga. App. 673 (58 S. E. 54), and cases there cited.

2. When it affirmatively appears that a brief of evidence was filed with the motion for a new trial (as in the case of Thompson v. Simmons, 139 Ga. 845 (78 S. E. 419), where the recital is made in the bill of exceptions that “there came on to be heard in the above-stated case, the same being [a] petition for injunction, a motion for a new trial, said motion being filed within the time prescribed by law, with the evidence duly approved by the court, and the charge of the court properly certified”), “the bill of exceptions will not be dismissed because of the omission to specify the brief of evidence as a part of the record; but if the omitted record is necessary to the adjudication of the case, this court of its own motion will cause a certified copy of it to be transmitted to the clerk of the Supreme Court,” or to the Court of Appeals, as the case may be. Id.

3. The burden is upon the plaintiff in error to make the record show that the essential requisites of a valid motion for a new trial did in fact exist, where the writ of error is based upon the refusal to grant such a motion. It does not affirmatively appear iu this case, from any recital in the bill of exceptions, or elsewhere from the record, that a brief of evidence was filed with the motion for a new trial. The bill of exceptions recites that a motion for a new trial was made and denied, and specifies as material to a clear understanding of the error complained of “the original motion and the amended motion, with the order overruling the same, and the following short brief of the evidence in said case;” and this recital is followed in the bill of exceptions by what purports to. be a part of the evidence adduced at the trial, alleged to be material, and certain statements as to what proof was made, without any suggestion that this or any other brief of evidence was filed tuifh the motion for a neto trial. Without entering the realm of conjecture, this court can not de.termine from the record that there was ever in fact a proper brief of evidence; and therefore it can not order that the same be transmitted by the lower court to the clerk of the Court of Appeals, and the writ of error must be dismissed, as it must appear (regardless of whether or not the brief of evidence be necessary for the determination of the case) that such a brief was in fact filed.

Writ of error dismissed.

Conviction of misdeamonor; from Bartow superior court—Judge Fite. August 12, 1916.

O. G. Pittman, for plaintiff in error.

Joseph M. Lang, solicitor-general, contra.


text:
    7656.
    Dawson Paper Shell Pecan Company v. Montezuma Fertilizer Company.
   Hodges, J.

The Montezuma Fertilizer Company sued the Dawson Paper Shell Pecan Company, a corporation, Lowry Brothers Company, a corporation, and J. S. Lowry & Company, a partnership, and J. S. Lowry and M. M. Lowry, the individuals composing the partnership, upon certain notes, signed “Lowry Bros. Co., M. M. Lowry, See. and Treas.,” and indorsed “J. S. Lowry & Co., per M. M. Lowry,” for $2,003.15, bearing interest and attorney’s fees thereon. J. S. Lowry & Company . answered, that the partnership had dissolved at the time of the creation of the' corporation of Lowry Brothers Company, and that at the time of the making of the notes the partnership operated no business; that the indorsement, “J. S. Lowry & Co.,” on the notes .was the individual act of M. M. Lowry, and not the act of the corporation, and that J. S. Lowry was not liable. The Dawson Paper Shell Pecan Company, successor (by change of name) to the corporation, Lowry Brothers Company, contended that the notes sued on were not executed by Lowry Brothers Company, nor by any officer or agent of the corporation authorized so to do, and were not the notes of the company. It admitted that M. M. Lowry was the secretary and treasurer of the corporation, but contended that the fertilizer company should have known that he was acting beyond the scope of his authority in signing the notes. The jury found a verdict in favor of the fertilizer company for $2,003.15, with interest in the sum of $184.83. Pending the motion for a new trial the fertilizer company renounced and wrote off all of the judgment as against J. S. Lowry & Company and J. S. Lowry. The motion for new trial being overruled, the Dawson Paper Shell Pecan Company excepted.

1. The notes sued upon were properly admitted in evidence, and were not subject to the objections raised before the trial court. The objection, raised first in this court, that the notes were not given under the corporate seal, will not be considered.

2. Letters written by the officer of a corporation, apparently within the scope of his duties and pertinent to the issue under investigation, are admissible in evidence against the corporation. Farmers Oil & Guano Co. v. Rosenthal, 10 Ga. App. 416 (73 S. E. 428) ; L. & N. R. Co. v. Tift, 100 Ga. 87 (27 S. E. 765) ; Merchants Bank v. State Bank, 10 Wall. 644 (19 L. ed. 1008). There is a presumption of law, where the contrary does not appear, that one occupying the position of secretary and treasurer of a corporation is a proper officer to sign for the corporation; and the burden is upon the corporation to show the contrary. Phillips v. Hudson, 9 Ga. App. 779 (72 S. E. 178).

3. Exception was taken to the instruction of the court that “an agent’s authority would be construed to include all necessary and usual means for effectually executing it; private instructions or limitations not known to persons dealing with a general agent can not effect them.” The facts in the case justified this charge, and there is no merit in the exception.

4 There was no error in the following instruction of the court: “If you' should find that M. M. Lowry was secretary and treasurer of Lowry Brothers Company, at the time of the buying of the fertilizer and at the time of the signing of the notes for the same, and that this was one transaction and that Lowry Brothers Company received any part of this fertilizer, knowing that the same was ordered by M. M. Lowry, they, Lowry Brothers Company, would be bound to pay for said fertilizer, so ordered and received.” It is admitted that M. M. Lowry was secretary and treasurer of the corporation, and the evidence shows that a part of the fertilizer was received by Lowry Brothers Company.

5. When the trial judge, in his general instructions, correctly states the law to the jury, and one of the parties, by a written request, induces the court to charge the contrary of the law, the party making the request will not be heard to say that the charge was misleading, confusing, and prejudicial to his rights. If the two excerpts complained of in the fifth special ground of the motion for a new trial are confusing, the request on the part of the plaintiff in error made, the confusion; but, from a careful reading of the entire charge, it can not be said that it was misleading or confusing.

C. Certain excerpts from the charge of the trial judge are excepted to as being contrary to other parts of the charge. Such an exception is not a sufficient assignment of error.

7. A witness was allowed to testify: “He (M. M. Lowry) told me that he had authority to buy guano for the company.” Objection was made to this testimony upon the ground that it was illegal, irrelevant, and not binding upon the company, being in the nature of hearsay evidence; it being contended that there was no evidence that M. M. Lowry represented the company or was authorized to make any statement binding on the company, or that he had authority to buy guano for the company. Bearing in mind that the answer of the Dawson Paper Shell Pecan Company admitted that M. M. Lowry was the secretary and treasurer of the defendant company at the time of the making of the notes sued on, this testimony was clearly admissible. The witness testified, without objection, that he had found out the official position of M. M. Lowry, with whom he was dealing, and by his authority the witness shipped goods without investigating as to where they were to be delivered. Knowing the official position of the party with whom he was dealing, it was not incumbent upon the seller’s agent to investigate as to where the goods were to be delivered. The declaration of the secretary and treasurer to the witness, after the officer’s position had been established, was not hearsay, but was binding upon the company.

8. It was not competent for a witness to testify to the contents of the charter, by-laws, and minutes of the corporation, and to say that there was nothing in them that gave authority to the secretary and treasurer to bind the company on the notes and contracts. While it was competent for a witness to testify that he had made a search of a certain record-book or books, and that the deed being searched for was not of record, it was not competent for the witness to testify that he was familiar with the charter, by-laws, and minutes of a corporation, and that there was nothing in them that gave authority to a named officer .to perform certain duties. This was a question of law, to be passed upon by the trial judge; and in order for the same to have been presented properly before the court, it was the duty of the corporation to produce its charter, minutes, and by-laws, for inspection by the court, so that the judge could say, as a matter of law, whether such authority was or was not vested in the named officer.

Decided December 8, 1916.

Judge Hodges participated in the judgment, BUT WAS PREVENTED BY HIS LAST ILLNESS PROM BEING PRESENT WHEN THE DECISION WAS ANNOUNCED.

Complaint; from city court of Dawson—Judge Edwards. May 31, 1916.

Yeomans & Wilkinson, R. R. Jones, for plaintiff in error.

J. B. Guerry, W. H. ■Gurr, contra.

9. The letters objected to were admissible in evidence, the same being written by officials of the corporation in answer to letters of the plaintiff, in regard to the payment of the notes, and not containing any offer of settlement or compromise, but on the other hand insisting that the corporation was not liable.

10. Exception is taken to the notice for attorney’s fees, upon the ground that the notice did not comply with the law and the statute. As the jury did not find attorney’s fees, the plaintiff in error can not complain as to the form of the notice.

11. The court charged the jury: “You could in no event find a verdict against the defendant generally; ” and exception is taken to this charge. The court states in a note, “The word ‘against’,.if used, was a lapse;” and this is shown from a reading of the instructions following; from which it is apparent that the jury could not have been misled by this lapsus linguse.

12. It was not improper to permit an agent of the seller to testify as follows: “When I found out that M. M. Lowry was secretary and treasurer of this company, and had authority to buy goods, I accepted his order without making any investigation as to where the goods were to be delivered.” There is no merit in the exception that this testimony was irrelevant, illegal, and not binding on the company.

13. Exceptions are taken because the court charged the jury with reference to J. S. Lowry & Company being accommodation indorsers. Where a plaintiff has voluntarily abandoned and written off the verdict against a party, that party has no right of exception; and J. S. Lowry & Company, a firm composed of M. M. Lowry and J. S. Lowry, are not parties to this bill of exceptions.

14. The verdict is supported by the evidence, and no reversible error appears in the record. Judgment affirmed.


text:
    7660.
    Brooks v. The State.
   Hodges, J.

1. The trial judge did not err in his charge to the jury on the question of keeping on hand liquor at a place of business.

2. There was no error in the charge of the court on the question of selling intoxicating liquors and keeping liquors on hand, and the jury necessarily, from the entire charge, understood that before the defendant could be convicted of the latter offense, it must be shown that the keeping of liquors on hand was in his place of business.

3. The court having instructed the jury on the law as to the prisoner’s statement, it was not necessary to charge them that they should look to his statement in connection with the testimony, in passing upon his guilt or innocence.

4. In instructing the jury upon the weight, force, and credit to be given to the testimony of witnesses, it is not necessary for the court to say that the jury should consider the statement of the defendant as well as the evidence of the witnesses; and the failure so to charge does not deprive the defendant of any right given to him under the law, where the law relating to the prisoner’s statement has been given in charge.

5. The court did not err in the following charge: “If liquor was found in the upstairs part of the building, and was connected with the room or place of business of defendant, so that there was convenient access to the same, and if you believe from all the facts and circumstances of. the case that liquor was kept in that upstairs part of the building, that the defendant had control of it, it would not matter whether anybody else had anything to do with the liquor in that upstairs part of the building or not. I mean to say that if the defendant, with others, had control of that liquor, kept it there, they would all be guilty, and each would be guilty; but I charge you, on the other hand, that if these others kept it and had control of it, and the defendant did not, you could not convict him, so far as keeping liquor on hand at his place of business is concerned.” This charge was not subject to exception upon the ground that it invaded the province of the jury and instructed them, as a matter of law, that the whisky found was in the place of business of the defendant and in his custody and control, and failed to charge ■ that this was a question for the jury to determine.

6. The instruction to the jury that they should “look to the evidence to see whether that liquor was kept on hand by this defendant, kept there by himself or through and in connection with other persons,” was not error upon the ground that the court failed to instruct the jury that the keeping of the liquor was not a violation of the law unless it was kept on hand at the defendant’s place of business. The charge of the court is to be construed as a whole, and, so construing it, the jury must have understood from it that in order to convict the accused, the evidence must show that the liquor was kept on hand at his place of business.

7. There was no substantial error in the charge of the court in reference to the defendant’s statement.

8. There was no error in the instruction of the court on the doctrine of reasonable doubt.

Decided December 8, 1916.

Judge Hodges participated in tiie judgment, BUT WAS PREVENTED BY HIS EAST ILLNESS PROM BEING PRESENT WHEN THE DECISION WAS ANNOUCED.

Rehearing denied December 21, 1916.

Accusation of misdemeanor; from city court of Macon—Judge Guerry. June 30, 1916.

0. A. Glawson, 8. B. Hunter, Wimberly & Wimberly, for plaintiff in error. John P. Boss, solicitor-general, contra.

9. It was not error for the judge to instruct the jury as follows: “If you believe the testimony, in view of all the facts in this case, of this witness, Charley Holly,—if you believe it, the fact that he is a negro would not authorize you to set aside his testimony. What you are after in this case is the truth. That is all, and that is a great deal. It is a great office for the jury to perform. You go into court, presumably at least, without prejudice, without bias, and without animosity, without partiality. Of all places in the world the place to find impartiality is in the jury-box. That is the place to be honest, unprejudiced, and impartial in the consideration of the case, and that is the place to search simply for the truth of the case, and when you have found it, to declare the truth of the case. If you don’t find it, acquit the defendant. If you can not find that the truth of the case is that he is guilty beyond a reasonable doubt, acquit the defendant, but if you find the truth of the case is, beyond a reasonable doubt, that he is guilty of either keeping, or selling, or both, as charged in this indictment, you will be authorized to render a verdict of guilty; otherwise you would not.” While this charge may be inapt, and in the nature of a lecture to the jury upon the duty of a citizen and á juror, it can not be said to be harmful, upon a consideration of the evidence in the case; and it did not express or intimate to the jury that the presiding judge believed that the witness referred to was testifying to the truth in the ease. It was not error upon the ground that it “restricted the right of the jury to acquit the defendant only upon the conditions of their failure to find the truth of the case.” On the contrary, the jury were instructed that if they failed to find the truth beyond a reasonable doubt, it would be their duty to acquit the accused. Nor was this instruction subject to the exception that it “amounted to an expression of opinion that the defendant was guilty, and tended to convey to the minds of the jury the idea that unless they found him guilty, they would not find the truth of the case. ”

10. In the light of the charge of the court as a whole, it was not error on the part of the presiding judge to fail to instruct the jury specifically that “the jury is the sole and exclusive judge of the law and the facts in the case. ”

11. The instruction, “if you find the truth of the case is, beyond a reasonable doubt, that he is guilty of keeping" or selling, or both, as charged in the indictment, you will be authorized to render a verdict of guilty, otherwise you would not,” was a sufficient instruction as to the verdict to be reached by the jury.

12. The verdict is authorized by the evidence. Judgment affirmed.


text:
    6252.
    Johnston v. Brenau College-Conservatory.
    Decided December 8, 1916.
    Rehearing denied December 19, 1916.
    Petition for certiorari; from Fulton superior court—Judge Pendleton. November 304 1914.

      M. Herzberg, D. K. Johnston, for plaintiff in error.

      W. I. Hobbs, J. G. Collins, contra.
   Wade, C. J.

1. To a question propounded to the Supreme Court in this case, presenting for determination the precise issue involved therein with reference to the right- to review findings of a judge of the municipal court of Atlanta, or of the appellate division of that court, the Supreme Court replied as follows “If the plaintiff in certiorari sues out the writ to the decision made by the trial judge, he can have the question as to whether the finding is contrary to evidence and contrary to law passed upon; but if, instead of suing out the writ of certiorari then, he takes an appeal to the appellate division, inasmuch as the act eliminates these two general questions on such appeal, he can not have them reviewd by certiorari taken from a decision made by such division.” 146 Ga. 182, 187 (91 S. E. 85).

(a) In this case judgment was rendered without the intervention of a . jury, on October 15, 1914. An appeal was thereupon taken to the appellate division of the municipal court, and on November 5, 1914, was heard by that division. The petitioner in certiorari (the defendant in the court below) applied to a judge of the superior court for the writ of certiorari on November 30, 1914,—more than 30 days after the judgment on the facts. The errors assigned in the petition for certiorari depended upon a consideration of the evidence adduced at the original trial before the judge of the municipal court.

2. Under the answers of the Supreme Court to the various questions certified in this case, and especially under the ruling of that court above quoted, and in the state of the record, the judge of the superior court did not err in declining to sanction the certiorari, regardless of the reason

assigned for the refusal. Judgment affirmed.

Hodges, J., absent.


text:
    6990.
    Ford v. E. Tris Napier Company.
   Broyles, J.

This case was tried in the municipal court of Macon, and was taken by writ of error to the superior court of Bibb county. The record discloses that the value of the property in controversy is over $25 but does not exceed $1000. The superior court of Bibb county rendered a judgment reversing the judgment of the trial court; this judgment of the superior court was excepted to, and a bill of exceptions sued out to this court. Under the express provision of the act creating the municipal court of Macon (Acts, 1913, p. 252, § 26 (c)), the judgment of the superior court of Bibb county in such a ease was final, and was not subject to review by this court. This provision of the act is not unconstitutional or invalid. Ford v. E. Tris Napier Co., 146 Ga. 228 (91 S. E. 111) ; Wester v. Redding, 146 Ga. 73 (90 S. E. 1023).

Decided December 8, 1916.

Writ of error; from municipal court of Macon.

W. A. McClellan, J. C. Estes, for plaintiff in error.

Eyals & Anderson, contra.

Writ of error dismissed.

Hodges, J., absent.


text:
    6936.
    Wester v. Redding.
    Decided December 8, 1916.
    Motion to dismiss writ of error; from municipal court of Macon.

      Walter Before, Charles II. Garrett, for plaintiff in error.

      Martin & Martin, contra.
   Broyles, J.

This case is controlled by the decision in Ford v. E. Tris Napier Co., ante, 47. Writ of error dismissed.

Hodges, J., absent.


text:
    7115.
    Lee v. Perry et al.

   Broyles, J.

1. This suit was brought in the municipal court of Atlanta, Eulton section, on a verified open account against J. B. Perry and J. M. Blankenship as joint contractors, it being alleged in the plaintiff’s petition that the two defendants composed a partnership operating a milk and cream depot in Atlanta, Eulton county, Georgia, under the name of “The Standard Creamery,” and that both defendants resided in Atlanta, said county and State. The defendant Blankenship filed a special plea to the jurisdiction of the court, alleging that at the time the suit was filed he was a resident of DeKalb county, Georgia, and not of Eulton county. Joint or joint and several obligors or promisors, or joint contractors, or copartners, residing in different counties, may be sued as such in the same action in either county in which one or more of the defendants reside. Civil Code (1910), § 5529. Under this section of the code the court had jurisdiction of the subject-matter of the suit, and Blankenship’s plea to the jurisdiction of the court was insufficient in law, it being undisputed that the other joint contractor or copartner was a resident of Atlanta, Eulton county, and that service had been perfected upon the latter; and there was no error in sustaining the demurrer interposed to the plea and in striking the plea. There was no allegation in the plea that Blankenship had not been served, or that he had been improperly served. On the contrary, he specifically recited in his plea that the plaintiff’s suit was served upon him. The return of the officer, showing personal and valid service- upon the defendant Blankenship, was not traversed. The record discloses no plea of any kind setting up that the defendant Blankenship was not properly served; nor was there any evidence of improper service, nor any evidence that the defendant Blankenship did not reside in Eulton county (his plea not being traversed). Under such circumstances the question as to whether there was a valid service upon Blankenship was not sufficiently raised in the lower court, and will not be passed upon by this court.

Decided December 8, 1916.

Complaint; from municipal court of Atlanta. October 6, 1915.

Calvin George, for plaintiff in error.

McCallitm & Sims, contra.

2. The defendants’ plea of the general issue did not deny that they were indebted to the plaintiff in any sum, and did not specify any amount of admitted indebtedness to the plaintiff. The court therefore properly struck this plea, the defendánts having refused to amend when given the opportunity. Civil Code, § 4728.

8. A judge of the municipal court of Atlanta, Eulton section, has authority to direct a verdict demanded by the pleadings and the evidence in the case. Hope v. Hedgerose Heights Co., 146 Ga. 73 (90 S. E. 530); s. c. ante, 10. In the case at bar there was no error in the direction of the verdict, as, under the facts adduced, no other legal finding could have resulted.

4. This was a second grant of a new trial by the appellate division of the court, and, under the facts of the case, was error.

Judgment reversed.

Hodges, J., absent.


text:
    7170.
    Quinney v. Citizens Bank of Waynesboro.
    Decided December 8, 1916.
    Complaint; from city court of Waynesboro—Judge H. C. Hammond presiding. November 30, 1915.
    The Citizens Bank of Waynesboro sued Gray Quinney on three notes payable to it, as follows: one for $324, dated February 20, 1905, and due February 20, 1906; one for $100, dated February 20, 1905, and due one day after date, and one for $181.87, dated March 10, 1909, and due May 10, 1909. The defendant filed an answer in which he denied indebtedness and further pleaded as follows: (5) The defendant and W. C. Gresham, John F. Humphrey, and B. N., Berrien Jr. were engaged under the corporate name of Disko Company, in running a soda-fountain and cigar business in Waynesboro, Georgia. At the time the said notes for $324 and $100 were taken, February 20, 1905, the said E. N. Berrien Jr., who was cashier of the plaintiff bank and representing it and also managing the money affairs of the said Disko Company, told the defendant and said Humphrey and Gresham that the business owed the bank $424 for overdrafts, and asked that notes therefor be given the same, the arrangement being that when the defend•ant signed the notes a joint note should be given, signed by all, including Berrien, before the notes were to be delivered to the bank, and the defendant signed on that condition only, but the said Berrien did not have the others to sign the said note and did not sign himself; which constituted a fraud on the defendant and rendered the said note void in the hands of the bank, whose cashier, acting for it, took the note on the said condition which' he failed to carry out. At the time the notes sued on were signed, the Disko Company had been dissolved and had ceased doing business. (6) The said two notes dated February 20, 1905, were afterwards, at a date not remembered by defendant, renewed and a note given in their stead and given as a settlement of the notes sued on, and the said renewal note has never been surrendered to defendant and the others. The said note also was to be signed by all four of the parties interested in the said Disko business. Defendant, having confidence in said Berrien, cashier of said bank, and not knowing but that the notes had been destroyed or given to one of his intended comakers, did not inquire further about the surrender of said notes which were thus satisfied by this renewal. (7) As to the note “dated March 10, 1909,” defendant says: The said cashier of said bank, E. N. Berrien Jr., said it would be well for each of the parties to give separate notes for their several proportionate shares of the indebtedness to said bank, which said cashier then said was something over $700, and in pursuance of this plan the defendant gave “the note of February, 1909, for $187.81..” Afterwards the defendant, in company with W. C. Gresham, went to said Berrien and proposed (or Gresham did) that his indebtedness be taken up, but said Berrien said that they need not pay the notes, that he was in possession of the said Disko Company, consisting of an engine, soda-fount, showcase, chairs, and tables, which would be ample to pay to the bank, and he then and there, for the said bank, engaged to convert said property into money and satisfy said note given by defendant. Afterwards said property was so sold by the cashier of said bank, and defendant never heard of said notes and “supposed, as he had a right to do that, it had not been paid.” (8) Defendant further pleads, that the said R. N. Berrien Jr., cashier of the said bank, having said notes in his hands, engaged with the defendant that he would use the property of Disko Company (said company being then out -of business and its property stored and in charge of said Berrien as cashier of said bank for the purpose of selling the same and paying said Disko indebtedness) to pay the indebtedness to said bank; that said property was ample for said purpose; that the soda-fount was a costly one and in good order, worth at least $1,000; that the gasoline engine was worth $150, the showcase not less than $30, and the chairs and tables $15; that the bank, through its cashier, who was acting for it in said sale, received the money therefor, and it was in law bound to apply said money as he had agreed as cashier to do, upon said indebtedness, and that the same had been fully paid; which said payment defendant pleads in satisfaction of said note sued on.
   Wade, C. J.

Waiving all'questions not necessary to the determination of the exact point involved in this case, the defendant’s answer as a whole set up one legal defense, if not more. The court, therefore, erred in striking all but the formal portion of the plea and in thereafter directing a verdict for the plaintiff. Judgment reversed.

Hodges, J., absent.

When the case came up for trial the plaintiff’s counsel made a motion to strike paragraphs 5, 6, 7, and 8 of the defendant’s answer, because: (1) Taken together they do not constitute a legal defense. (2) The said defense sets up transactions between-the defendant and W. O. Gresham, J. 3?. Humphrey, and R. N. Berrien, doing business as the Disko Company, and the acts complained of were those of R. N. Berrien as a member of the Disko Company and not as cashier of plaintiff’s bank: (3) The plea of renewal is insufficient in law, as there is no allegation that the renewal note was ever paid, or that it was ,ever accepted by plaintiff. (4) The plea of payment is insufficient in that there is no allegation that the said bank ever received the proceeds of the sale of the assets, or that there were not other outstanding claims which took the money arising from the sale thereof. The court sustained the motion to strike, and then directed a verdict for the plaintiff.

Brinson <& Hatcher, B. V. Heath, for plaintiff in error, cited: As to cashier’s authority, and ratification: Mott v. Semmes, 24 Ga. 555; Dolvin v. American Harrow Co., 125 Ga. 706; Atlanta Buggy Co. V. Hess Spring Co., 124 Ga. 342-3; Singleton v. Banlc, 113 Ga. 528; Merchants Banlc v. Bawls, 7 Ga. 197; Wood Hydraulic Hose Mining Co. v. King, 45 Ga. 42. As to failure to get tbe additional signatures before delivery: Hansford v. Freeman, 99 Ga 376; Moore v. Farmers Mutual Insurance Association, 107 Ga. 199; Heitmann v. Commercial Bank, 6 Ga. App. 584; Hartman Stock Farm v. Henley, 8 Ga. App. 255. As to novation: Gresham v. Morrow, 40 Ga. 487; Tucker v. Ball, 68 Ga. 814.

H. J. Fullbright, contra.


text:
    7173.
    Exchange Bank of Oakfield v. Odum.
    Decided December 8, 1916.
    Complaint; from city court of Thomasville—Judge W. H. Hammond. December 1, 1915.

      Titus, Dekle & Hopkins, for plaintiff.

      Merrill & Grantham, for defendant.
   Wade, C. J.

1. A note payable on demand is due immediately (Civil Code, § 4292; Brinson Ry. Co. v. Exchange Bank of Springfield, 16 Ga. App. 425 (85 S. E. 634)), and a purchaser takes such a note subject to all equities between the original parties. Motel Lanier Co. v. Johnson, 103 Ga. 604 (3), 605 (30 S. E. 558) ; Dougherty v. Western Bank of Georgia, 13 Ga. 287; Meador v. Dollar Savings Bank, 56 Ga. 605 (3).

2. A promissory note payable “after date” and not otherwise expressing any time for payment is payable on demand (Hotel Lanier Co. v. Johnson, supra), and a note payable “on demand after date” is not a note payable on time. Hitchings v. Edmunds, 132 Mass. 338; Turner v. Iron Chief Mining Co., 74 Wis. 355 (43 N. W. 149, 5 L. R. A. 533, 17 Am. St. R. 168). It follows that a note payable “on demand next after date” (as was the note sued upon in this case) is due immediately, and a purchaser of the note would take it subject to the equities between the original parties. The use of the word “next,” which means “in the nearest time,” “just after,” “immediately following” (Standard Dictionary), could not have the effect of extending the time included by an expression construed to mean immediately.

3. The motion for a new trial is based upon the general grounds only, there was some evidence to support the verdict for the defendant, and therefore this court can not set the verdict aside.

Judgment affirmed.

Modges, J., absent.


text:
    7323.
    Hammock v. Grady.
    Decided December 8, 1916.
    Appeal; from Crisp superior court—Judge George. October 23, 1915. •

      Mather M. Paites, for plaintiff in error. J. T. Hill, contra.
   Wade, C. J.

There is no merit in any of the special grounds' of the motion for a new trial, and the evidence supported the verdict.

Judgment affirmed.

Bodges, J., absent.