author: Bloodworth, J. Bloodworth, J.

text:
    8398.
    SOUTHERN RAILWAY COMPANY v. HODGSON BROTHERS COMPANY.
    The court did not err in rendering judgment in favor of the plaintiff against the Southern Railway Company in the garnishment case. Decided October 31, 1917. — Adhered to on rehearing February 14,1918.
    Garnishment; from city court of Athens — Judge West.
    December 18, 1916.

      Blanton Forison, for plaintiff in error.

      Wolver M. Smith, Frwin, Bucher & Erwin,'contra.
   Bloodworth, J.

Hodgson Brothers Company brought suit against Harris Brothers Grain Company, a non-resident of this State, by attachment and garnishment, the summons of garnishment being served upon Southern Railway Company, July 14, 1915. On May 19, 1916, the plaintiff obtained judgment on the said attachment against Harris Brothers Grain Company for $175 principal and cost of suit, and a judgment against the Southern Railway Company for the same amount on the garnishment. In its answer to the summons of garnishment the Southern Railway Company denied being indebted to the defendant, and the matter was submitted to the trial judge, acting as both court and jury. The facts may be briefly outlined as follows: In June, 1915, the Port Worth & Rio Grande Railway Company received from Harris Brothers Grain Company at Rochelle, Texas, certain sacks of oats, which, as shown by the bill of exceptions, were consigned to Harris Brothers Grain Company, Greenville, S. C., but which the garnishee’s amended answer states were consigned to the Acme Peed Company, Greenville, S. C., with instruction from the shipper to notify Hodgson Brothers Company at Athens, Ga., upon the arrival of the ear at Greenville, S. C. A bill of lading was -issued with draft attached, drawn by Harris Brothers Grain Company, for $559.30, with instruction that the amount of the paid freight-bill was to be deducted from this amount and accepted as cash. This shipment of oats was received by the Southern Railway Company from its connecting carrier, and by it transported to Greenville, S. C., where the oats arrived on or about July 10, 1915. Meanwhile the invoice covering the shipment had been transferred by Hodgson Brothers Company to the Acme Peed Company, of Greenville, S. C., and, upon the order of Hodgson Brothers Company, Harris Brothers Grain Company having notified the Southern Railway Company on June 15, 1915, that the car of oats was for Hodgson Brothers Company, of Athens, Ga., it was delivered by the railway company to the Acme Feed Company, on July 10, 1915, on payment by that company to the railway company of $559.30, $240.40 of which was the freight charges to which the railway company was entitled; thus leaving a balance in the hands of the railway company of $318.90. After the ear of oats had been delivered as stated above, the Southern Bailway Company received, on or about July 16, 1915, an order from Harris Brothers Grain Company, dated July 14, 1915, instructing the railway company to deliver the ear of oats to A. II. Hayes of Greenville, S. C., but at that time the car had already been delivered to the Acme Feed Company as stated above.

After the summons of garnishment was served on July 14, 1915, on the Southern Bailway. Company, the defendant Harris Brothers Grain Company brought suit- against the initial carrier, the Fort Worth & Bio Grande Bailway Company, and the Southern Bailway -Company, in the county court of Dalla’s county, Texas, on account of the alleged wrongful delivery of this car of oats, and on February 17, 1916, a judgment was obtained against the Fort Worth & Bio Grande Bailway Company for $399.10, the Southern Bailway Company’s plea of privilege having been sustained by the Texas court, and the suit as to it having been dismissed. The judge having found against the garnishee, the Southern Bailway Company, it made a motion for a new trial, upon the overruling of which it excepted.

We hold that the court properly gave Hodgson Brothers Company judgment against the Southern Bailway Company in the garnishment proceedings. Civil Code (1910), § 5124.

Judgment affirmed.

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

on rehearing.

Bloodworth, J.

The decision in this ease is right both in law and good morals. The amended answer of the Southern Bailway Company is in part'as follows: “2. That the car of oats was received by your respondent, Southern Bailway Company, from its connecting carrier, and by it transported to Greenville, South Carolina, on or about the lO.th day of July, 1915. The Acme Feed Company held the invoice from Hodgson Brothers, Athens, Georgia, dated June 15th, for the amount of $559.30, and upon the arrival of the car it was delivered to. the Acme Feed Company upon their paying ypur respondent $559.30, which, less the freight charges of $240.40, leaves $318.90 in the hands of your respondent. 3. Your respondent avers that this car of oats was delivered to the Acme Feed Company upon the order of Hodgson Brothers Company, Athens, Georgia, the consignee, and upon the order of Harris Brothers Grain Company, the consignor. 4. Your respondent further avers that after the car of oats had been delivered, as above set forth, and on or about July 16, 1915, your respondent received another order from the Harris Brothers Grain Company at McKinney, Texas, dated July 14, 1915, instructing your respondent do deliver the said car of oats to one A. M. Hayes of Greenville, South Carolina, but at this time the car had already been delivered to the Acme Feed Company upon the instructions above outlined.” Note that this answer shows that at the time the summons of garnishment was served upon the Southern Railway Company it had in its hands $318.90, the net proceeds of a car of oats which had been sold by Harris Brothers Grain Company, and upon their order delivered to the Acme Feed Company; the sale was complete in all its essentials, and prior to the sale no person, firm, or corporation other than Harris Brothers Grain Company had or claimed-any title, right, or interest in the oats, and the sale passed the title thereto into the Acme Feed Company. The fact that Harris Brothers Grain Company, after Hodgson Brothers Company had held up this money by garnishment, brought suit against the Fort Worth & Rio Grande Railway Company, the initial carrier, can not deprive Harris Brothers Grain Company of the ownership of the fund. Can it be said that under the circumstances, as shown by the above statement of facts and the ' answer of the Southern Railway Company, there was any conversion of the goods by the railway company? It.will be noted that the Southern Railway Company, in its answer, says: “Your respondent avers that this car of oats was delivered to the Acme Feed Company upon the order of Hodgson Brothers Company, Athens, Georgia, the consignee, and upon the order of Harris Brothers Grain Company, the consignor.” If this car of oats was delivered to the consignee upon the order of the consignor, the full purchase price paid, and no transfer or assignment of the bill of lading shown, can the consignor complain? If the Southern Railway Company had remitted the net proceeds of the car of oats to Harris-Brothers Grain Company could they have complained? And can it make any difference that a portion of the fund went to the payment of a judgment debt against Harris Brothers Grain Company?

We recognize the general principle that “A shipper, by consigning goods to his own order and attaching to' the bill of lading a draft for the price of the goods, indicates an unequivocal intention to retain title to them until his draft is paid,” and that “any distinct act of dominion, inconsistent with the owner’s right, wrongfully exercised over his property by another, may amount to a conversion, whether the wrongdoer exercised such dominion for his own' use or for the use of a third person.” However, in the instant case the Southern Bailway Company has not wrongfully exercised any act of dominion over the property of Harris Brothers Grain Company, but it simply carried out its orders, and, upon the payment of the purchase price, delivered the oats to the person to whom they were consigned and to whom .it was otherwise ordered to deliver them. What became of the bill of lading is not shown by the evidence. In the cases cited by the plaintiff in error the goods were delivered without the knowledge or consent of the shipper; there-was “loss of goods by wrong delivery, negligently made by the carrier.” Of course, in such cases, there was a conversion. In this case the plaintiff in error insists that there was a conversion because the oats were not delivered in ¿ccordance with instructions of the letter of Harris Brothers Grain Company to the Southern Bailway Company on July 16th. .This position is untenable. The oats at that time had already been delivered to the Acme Feed Company, as shown by the 4th paragraph of the amended . answer' copied above. If the railway company would, have the right to deliver the oats to Hayes, a third person, on “another order from the Harris Brothers Grain Company,” without additional transfer, assignment, or endorsement of the bill of lading, a fortiori, they had the right to deliver them, by similar instructions, to the party to whom they were consigned. Should Harris Brothers Grain Company require payment of the entire amount of their judgment, they would thus twice receive pay for the car of oats. As before stated, there is not a word of evidence in the record to show what became of the bill of lading,' but, grant ing that Harris Brothers Grain Company is the lawful holder thereof, it occurs to us that had the Texas court had before it all the facts, the judgment against the initial carrier would not have been rendered, because the “Carmack amendment” to the interstate-commerce law. provides that in interstate transportation of property the lawful holder of the bill of lading shall be entitled to recover for the “full actual loss, damage, or injury,” and the facts in this case show that Harris Brothers Grain Company sustained no “loss, damage, or injury” by reason of any act of either of the carriers involved. However, this question is foreclosed by the judgment of the Texas court.

But apart from what is said just above, Hodgson Brothers Company should not'suffer by reason of the fact that such judgment was rendered. The money from the sale of the oats was seized by judicial process. In Wells Fargo & Company Express v. Ford, 238 U. S. 503 (35 Sup. Ct. 864, 59 L. ed. 1431), the first headnote is as follows: “The carrier can not be held responsible for goods taken from its custody by valid legal process provided it gives the owner prompt notice of the suit so that he may have an opportunity to protect his interest,” and Mr. Justice Lamar, speaking for the court, said (p. 506) : “If the carrier gives such notice and the consignor fails to appear, or fails in his defense, and the property is seized, held, or sold under judicial process, the carrier can not thereafter be held responsible for yielding to what must then be treated as vis major.” In Merz v. Chicago & Northwestern Ry. Co., 86 Minn. 33 (90 N. W. 7), is the following headnote: “It is a sufficient defense in an action for conversion brought against a common carrier to prove that there has been a seizure of the property under legal process, but the burden of proof is upon such carrier to show that the process was regular and valid upon its face. It is the duty also of the carrier, in ease of a seizure under process, to notify the shipper promptly of the pendency of the legal proceedings in order to enable him to make a proper defense. If this notice is promptly and properly given, an action for conversion will not lie, for the carrier has a right to presume that the party notified will attend to his property and protect it in the suit.” See also Ohio & Mississippi Ry. Co. v. Yohe, 51 Ind. 181 (19 Am. R. 727); Blevin v. Hudson River R. Co., 36 N. Y. 403.

In this ease it can make no difference that the proceeds of the sale of the oats, and not the oats themselves, were seized. If the Southern Bailway Company failed to give the proper notice of the garnishment suit to Harris Brothers Grain Company, and because of that failure they had no opportunity to appear- and protect their rights (if any they had) under the garnishment proceedings, and by reason of this failure to give notice they had the right to proceed against the initial carrier and did obtain judgment against it, and the Southern Bailway Company is required to pay the same, it will be paying for its own negligence, and Hodgson Brothers Company should not suffer therefor. The fact that Harris Brothers Grain Company would have no legal claim to the part of the proceeds of the sale of the oats which was awarded Hodgson Brothers Company but emphasizes what is said at the beginning. of this statement, — that the judgment of the court in this case is right.

Judgment adhered to.

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


source: Caselaw Access Project

author: Bloodworth, J.' Harwell, J.,

license: Public Domain

text:
    8364.
    SAVANNAH LIGHTING COMPANY v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND.
    I. An owner of property employed contractors to erect certain buildings, and the contract provided that “The contractor further agrees: that should he fail to at any time provide a sufficiency of competent workmen, machinery, or materials, or that should the progress of this work at any time be such as would result in his failure to complete the work upon the date herein agreed upon, of which conditions the engineers i 'are to be the judge, the owner shall have the right to require, by written: notice, the contractor to, at his own. expense, employ such additional labor, machinery, or material as the engineers may direct to be put upon the work. The contractor further agrees that should he fail to provide a sufficiency of labor, machinery, or proper materials within ,- five days of such notice, or should he fail to remove rejected materials or objectionable employees, as hereinafter provided, or should he fail to comply with any other requirements of this agreement, the owner shall have the right, after five days’ written notice, to cancel this contract.” Held: Under such a contract, before the owner would be authorized to cancel the contract, a statement or certificate must be . furnished by the engineers that in their opinion, under the terms of the contract, the conditions are such as to warrant the cancellation.
    ’2. Where contractors give a bond for the faithful performance of a building. Contract, in which it is provided that “This bond is executed by the surety upon the following express conditions, which shall be conditions precedent to the right of the owner to recover hereunder: The owner '' "shall keep, do, and perform each and-every; all- and singular, the matters and things set forth and specified in said contract, to be by the owner kept, done, and performed exclusively at the times and in the manner as in said contract specified. The said surety shall be notified in writing of any act on the part of the said principals, or their agents or employees, which may involve a loss for Which the said surety is responsible hereunder, immediately after the occurrence of such act shall have come to the knowledge of said owner, or to any representative duly authorized to oversee the performance of said contract; and a registered letter, mailed to the president of said surety, at its principal ofiiee in Baltimore City, Maryland, shall be the notice required within the meaning of this bond;” held, that where the contract is abandoned by the contractors, the giving of notice thereof to the surety is a condition precedent to a recovery on the bond.
    3. The petition did not set out a cause of action, and the demurrer was properly sustained.
    Decided February 19,
    — Rehearing denied February 27, 1918.
    Action upon bond; from Chatham superior court — Judge Kent presiding. December 16, 1916.

      Adams & Adams, for plaintiff.

      Garrard & Gazan, Oliver & Oliver, for defendant.
   Bloodworth, J.'

The Savannah Lighting Company entered into a written contract with Lightman, McDonald & Company, under which the latter were to build “additions to power station and substation” of the former. A bond for the faithful performance of the contract was'given to the owner by the contractors, with the Fidelity and Deposit Company of Maryland as surety. The owner contended that the contractors violated certain conditions of the contract, and it brought suit against the surety company, on the bond. A demurrer to the petition was sustained, and the plaintiff excepted.

1. The contract between the owner and the contractor is, by the express terms of the bond, made a part thereof, and both instruments must be construed together. Thus construing them; the surety company is liable to suit under each of at least two conditions : the one upon cancellation of the contract under the stipulations thereof hereinafter set out, — the cancellation to be upon the initiative of the owner; the other, the abandonment of the contract, — which! would be the voluntary act of the contractors. The demurrer which was sustained was as follows: “1st. The petition as amended is not sufficient in law. 2d. The petition as amended fails to show that the notices of October 1 and October 8 were given, upon the judgment of the engineers, as required by the contract. 3d. The petition as amended fails to show that any notice was given to the surety of plaintiff’s contention that the contractor had abandoned the contract, as required by the condition in the bond that ‘The said surety shall be notified in writing of any act on the part of the said principals, or their agents or employees, which may involve a loss for which the said surety is responsible hereunder, immediately after the occurrence of such act shall have come to the knowledge of said owner, or to any representative duly authorized to oversee the performance of said contract; and a registered letter, mailed to the president of said surety at its principal office in Baltimore City, Maryland, shall be the notice required within the meaning of this bond/ ” It will be- seen that the defendants insist, that the cancellation was of no effect, because the notices given (the substance of each of which is hereinafter copied) were not based upon the certificate of the engineers, as provided by the contract, and that no notice whatever was given that the contract had been abandoned; and that one or the other of these two conditions' must be complied with before there can be a recovery; the character of the notice required as a condition of recovery being dependent upon whether the suit is brought because the contract is cancelled, or because it is abandoned. In this case another issue is presented, — whether -one can give notice of cancellation, construct his petition on this theory, and then amend and recover on the ground that the contract had been abandoned. Just here we call attention to the entirely different results that follow from a cancellation of the contract and from the abandonment thereof.

In the event of cancellation the provision applicable is as follows: ‘‘The contractor further agrees that in the event of the annulment of this contract, as above provided, the owner shall have the right to enter upon the premises and take possession, for the purpose of completing the work under this contract, of all materials, tools, and appliances thereon belonging to the contractor, and to employ any other person or persons to finish the work herein provided for, and to provide all the materials necessary therefor. TJpon such notice of cancellation being given, all payments to the contractor under this contract shall cease, and all moneys due or to become due the contractor shall be retained by the owner until final completion and acceptance of the work. The cost of all labor, machinery, and materials provided by the owner for any of the purposes of this section; including the extra cost of inspection and superintendence, concerning which the certificate- of the engineers shall be final, shall be deducted from any moneys due or which may become due the contractor under this contract, and the owner shall have the right to recover any excess of-such costs, over the unpaid balance remaining on account of said contract . . .” In ease of abandonment the bond provides that “If the said principals shall -voluntarily abandon said contract, . . then the surety shall have the right, in its option, to assume the said contract and to sublet or complete the same, and if said contract shall be assumed by the surety, then as such contract is duly performed, any reserve, deferred payments, and all other moneys provided by said contract to be paid to the principals, shall be paid to the surety, at the times and under the same conditions as by the terms thereof such moneys would have been paid to' the principals had the contract been duly performed by them. And if said owner shall complete or relet the said contract, then any forfeitures provided in said contract against the principals shall not he operative as against the surety, but all reserves, deferred payments, and all other moneys provided in said contract, which would have been paid to the principals had they completed the contract in accordance with its terms, shall be credited upon claim the said owner may make upon said surety.” ■

Having before us the above, let us consider, first the conditions upon which the contract may be cancelled.as stated in the contract, in connection with the notices given, the petition, and ground 2 of the demurrer. This portion of the contract is as follows: “The contractor further agrees: that should he fail to at any time provide a sufficiency of competent workmen, machinery, or materials; or that should the progress of this work at any time-be such as would result in his failure to complete the work upon the. daté herein agreed upon, of which conditions, the engineers are to be the judge, the owner shall have the right to require, by written notice, the contractor to, • at his own expense, employ such additional labor, machinery, or material as the engineers may direct to be put upon the work. The contractor .further agrees that should he fail to providé a sufficiency of labor; machinery, or proper materials within five days of such notice, or should he fail to remove rejected materials or objectionable employees, as hereinafter provided, or should he fail to comply with auy other requirements of this agreement, the owner shall have the right after five days written notice, to cancel this contract.” The further provisions in reference to cancellation of the contract are herein-before set out in that portion of this opinion which refers to the “results that follow from cancellation of the contract,” and attention is directed thereto.

The owner, evidently acting upon these provisions, sought to cancel .the contract; for on October 1, 1914, he wrote to the contractors and sent a copy of his letter to the surety company, and in this letter said: “We enclose therewith a copy of letter of even date received from the Scofield Engineering Company, our consulting engineers . . . This letter also certifies as to the extension in time allowed account of delays for which you were not responsible and because of these additions. This will confirm the instructions given you by them, . . and the extension in time stated in their letter. No work on your contract having been done since September 31, please take notice that unless you .or your surety shall within five days from date hereof resume work with such labor, equipment, and material as to, in the judgment of the engineers, insure completion within the time now granted you, your contract shall become cancelled, and we shall, take possession for the purpose of completing the work as provided in the contract.” On October 8, 1914, the owner gave to the contractors and the surety company another notice, as follows: “In accordance with the provisions of your contract for additions to our main and sub-stations, dated May 31, 1914, we hereby cancel the same by reason of the failure to resume work, as notified you on October 1st, 1914, and have taken possession of work, for the purpose of building the same on your account.” It will be noticed that neither of these letters or notices contained any statement that this action is taken upon the advice, opinion, or certificate of the engineers. For this reason i-t is insisted by defendant that these notices are insufficient to authorize a cancellation of the contract, — that under them the owner had no right to cangel the-contract and take charge of the work and complete it.

"Wheredthere is such a contract and bond as in the instant case, the contract can not be cáncelled by the owner unless the cancellation is based upon some action or notice in reference thereto by the engineers. General Supply & Construction Co. v. Goelet, 149 App. Div. 80 (133 N. Y. Supp. 978; Hoyt v. Pomeroy, 87 Conn. 41 (86 Atl. 755). The headnote in 133 N. Y. Supp., supra, is as follows: “Hnder a building contract which permitted the owner to terminate the contract on the architect certifying that failure of the contractor to comply with the contract warranted termination, notice by the owner to the contractor of intention to take charge of the work was ineffectual, in the absence of such certificate.” In Hoyt v. Pomeroy, supra, as reported in 86 Atl. 755, the first headnote is as follows: “A stipulation in a building contract authorizing the owner to terminate the contract and complete the work, on certificate of the architect that the failure of the contractor to properly prosecute the work justifies it, must be strictly construed, and the architect must act impartially on his own judgment and must express his opinion in writing that there is sufficient ground to take the work out of the contractor’s hands, and a personal letter from the owner to the contractor reciting the failure of the contractor to perform the contract in accordance with the specifications, and notifying that the owner will complete the work, with the architect’s memorandum cO. K./ is insufficient to justify the owner in taking possession of the premises and completing the work.” See also Wilson v. Borden, 68 N. J. L. 627 (54 Atl. 815); White v. Mitchell, 30 Ind. App. 342 (65 N. E. 1061). In the ease of Southern Mfg. Co. v. Moss Mfg. Co., 13 Ga. App. 847 (81 S. E. 263), cited by plaintiff in error, the court said: “The stipulation as to the certificates was held to be a condition precedent to payment under the agreement of the parties, and no recovery could be had by the plaintiffs unless the defendant had waived the condition.”

We must keep .in mind the fact that this suit is against the surety company, and that “The sureties on the bond given for the performance of a building contract by the contractor are bound only by the express terms of their contract, and have a right to stand upon its precise terms.” Tally v. Parsons, 131 Cal. 516 (63 Pac. 833). From what is said above we reach the following conclusions: (a) The notices 'given by the owner to the contractors and surety company on October 1st and October 8th were given to cancel the contract- under the provisions thereof, showing that the owner then considered the contract as subsisting and not abandoned. (b) The plaintiff, having undertaken to cancel the contract, was bound to do so in strict accordance with its requirements. (e) One of these requirements was a statement or certificate from the engineers, but the plaintiff failed or neglected to obtain such a certificate, and hence there was a failure upon its part to legally cancel the contract. (d) Having failed to legally cancel the contract, the surety cannot be held liable, since the liability of the surety is measured by the conditions and provisions of the contract and of the bond, which are to be construed together in ascertaining the duties and responsibilities, rights and remedies of the surety, (e) The second ground of the demurrer is good.

2. Was it necessary for the plaintiff to give to the surety any notice of the abandonment of the work.by the contractors? The bond provides as follows: “Now, therefore, the conditions of this obligation is such, that if t the said principals shall faithfully perform said contract on their part, according to the terms, covenants, and conditions thereof (except as hereinafter provided), then this obligation shall be void; otherwise to remain in full force and effect. This bond is executed by the surety upon the following express conditions, which shall be conditions precedent to the right of the owner to recover hereunder: The owner shall keep, do, and perform each and every, all and singular, the matters and things set forth and- specified in said contract, to be by the owner, kept, done, and performed exclusively at the times and in the manner as in said contract specified. The said surety shall be notified in writing of any act on the part of the said principals, or their agents or employees, which may involve a loss for which the said surety is responsible hereunder, immediately after the occurrence of such- act shall have come to the knowledge of said owner, or to any representative duly authorized to oversee the performance of said contract; and a registered letter, mailed to the president of said surety, at its principal office in Baltimore City, Maryland, shall be the notice required within the meaning of this bond.” Clearly the act of abandonment, leaving the building in' an unfinished state, with the probability of involving the surety in a lawsuit, is an act on the part of the contractors “which may involve a loss for which the surety is responsible.” Therefore notice to the surety of abandonment is essential to recovery, for this notice is provided for in the bond under the clause, “The owner shall keep, do, and perform each and every, all and singular, the matters and things set forth and specified in said contract, to be by the owner, kept, done, and performed exclusively at the times and in-the manner as in said contract specified.” This is one of the “express conditions” named in the bond “which shall be conditions precedent to the right of the owner to recover hereunder.”

The plaintiff insists that no such notice is necessary, and cites the case of Smith v. Jewell, 104 Md. 269 (65 Atl. 6). "While it was there held that the contract under consideration by the court did not contemplate abandonment by the contractor, and did not fall within that provision 'of the contract which refers to the certificate of the engineer, and the bond, so far as the record shows, contained no provision requiring notice in case of abandonment, yet the fact is that- the owner actually gave the surety written notice, stating that the contractor had abandoned the work and that the owner would hold the surety financially responsible for losses, delays, or other expenses connected with the failure of the contractor to abide by the terms of the contract, and the court held the surety liable because of the notice given to it. By reference to the statement of facts contained in the Jewell case it will be seen that on May 8 the owners sent a written notice to Jewell that, as he had refused to furnish the necessary labor to prosecute the work, and had notified plaintiffs of his intention to abandon it, they should proceed on Friday, May 15, at 8 a. nr., to provide the necessary labor therefor, at the cost of the contractor. On May 12 the owners sent to the surety company a copy of that notice, adding that as Jewell had failed to comply with his said contract, they would proceed to complete said work at his expense, holding the surety company on its bond. On May 13 a second written notice was sent to the surety company by the owners, stating that Jewell had abandoned the work, and that they would hold the surety financially responsible for any loss, etc., connected with the contractor’s failure to abide by the terms of said contract. In the case at bar no notice of abandonment was given by the owner to the surety company. In the ease of Collins Co. v. Georgia Hotel Co., 142 Ga. 703, 709 (83 S. E. 660), it is stated that “The petition alleged that the contractor did not comply with the contract in the respects thus dealt with, but abandoned the work, that the architects gave the certificate -provided for by the contract, and the owner notified, the contractor.”

Counsel for the plaintiff in error cite also the case of Heidbrink v. Schaffner, 147 Mo. App. 632 (127 S. W. 418). An examination of the bond given in that case will show that it made no provision for notice to the surety in the event of abandonment; and, so far as the report of the case shows, there is no such provision in the contract. On the contrary, the bond contained a provision that the signers thereof acknowledged themselves “to be bound unconditionally for the faithful performance of said contract.” In the opinion in that case the statement is made that “it is plain the contingency of abandonment by the contractor was not provided against.” In the instant case abandonment wás provided against by the express terms of the bond, and, under the provisions of the bond, when the contract was abandoned the surety had the option to “assume the said contract and to sublet or complete the same,” and, if assumed and duly performed, “any reserve, deferred payments, and all other moneys provided by said contract to be paid to the principals shall be paid to the surety.” This is a valuable right, and to deprive the surety of the above option and this right without notice would be in direct and absolute violation of the terms of the bond. The plaintiff having absolutely failed to give any notice of “abandonment,” we hold that the third ground of the demurrer is good.

3. As shown above, the plaintiff gave notice of cancellation only, and in his original petition planted his case squarely upon the ground of cancellation. Neither in the petition nor in the amendment of January 4, 1916, did the plaintiff make any reference to “abandonment,” and we. hear nothing of abandonment until the term at which the case was tried. The notices and pleading relied upon to show abandonment utterly fail in this respect, and refer only to cancellation. Attention is directed to the fact that the letter of October 1 puts the contractors and the surety on notice that the time has been extended for completing the work, and also notified them that, unless certain things named in the letter were done within five days, “your contract shall become cancelled, and we shall take possession for the purpose of completing the work as provided in the contract.” This letter plainly shows that the plaintiff had no reference to an abandonment of the contract, for it calls attention to the extension of time granted, and the words, “take possession for the purpose of completing the work as provided in the contract,” are practically the same as those in that portion of the contract which provides for cancellation.

This shows that the plaintiff considered the letters as referring to cancellation, and not abandonment, and it so treated them in preparing the petition. Note also that the letter of October 8 says: “In accordance with the provisions of your contract, . . we hereby cancel the same, . . and have taken possession of work for the purpose of building the same on your account.” This the owner had the absolute right to do under the contract, if it was legally cancelled, but if the contract was abandoned, the owner had no such right until after the surety had exercised its option “to assume the said contract and to. sublet or complete the same.”

Though counsel for the plaintiff in error earnestly insist that the petition as originally drawn based the right of recovery upon the abandonment of the contract by the contractors, the petition itself will not support this contention, and the court will look to the petition in its entirety, including the letters of October -1 and October 8, which are a part thereof, to determine its nature. Under a well-recognized principle* the petition will be construed most strongly against the party in whose favor it is drawn. We think the petition clearly shows that it is based upon an attempted cancellation of the contract by the owner in pursuance of and in accordance with the provisions of the contract, and not upon abandonment by the contractor, as provided in the bond. Having elected thus to proceed and having failed to give any notice of abandonment, and the petition failing to show any such notice, we think the petition fails to set out a cause of action, and that the demurrer was properly sustained.

Judgment affirmed.

Broyles, P. J., concurs. Harwell, J:, dissents.

Harwell, J.,

dissenting. To the original petition the defendant demurred in writing, on the ground that it was insufficient in law, and, after the judge had announced that he would sustain the demurrer, the plaintiff amended the petition. The defendant then demurred orally upon the following grounds: (1) The petition as amended is not sufficient in law. (2) The petition as amended fails to show that the notices of October 1 and October 8 were given' upon the judgment of the engineers, as required by the contract. (3) The petition as amended fails to show that any notice was given to the surety of plaintiff’s contention that the contractor had abandoned the contract, as required by the condition in the bond that “The said surety company shall be notified in writing of any act on the part of the sáid principals, or their agents or employees, which may involve a loss for which the said surety is responsible hereunder, immediately after the occurrence of such act shall have come to the knowledge of said owner, or to any representative duly authorized to oversee the performance of.said contract; and a registered letter, mailed to the president of said surety at its principal office in Baltimore City, Maryland, shall be the notice required within the meaning of this bond.” The court sustained the demurrer and dismissed the petition. ‘

' Did the petition as amended fail to set out a cause of action, in that it failed to show that the notices of October 1 and October 8 were given upon the judgment' of the engineers? In passing upon this question it will be necessary to consider certain clauses of the contract between the owner and the contractors, as follows:

“The contractor further agrees: that should he fail to at any time provide a sufficiency of competent workmen, machinery, or materials, or that should the progress of this work at any time be such as would result in his failure to complete the work upon the date herein agreed upon, of which conditions the engineers are to be the judge, the owner shall have the right to require, by written 'notice, the contractor to, at his own expense, employ such additional labor, machinery, or material as the engineers may direct to be put upon the work.
“The contractor further agrees that should he fail to provide a sufficiency of labor, machinery, or proper materials within five days of such notice, or should he fail to remove rejected materials or objectionable employees, as hereinafter provided, or should he fail to comply with any other requirements of this agreement, the owner shall have the right, after five days written notice, to cancel this contract.
“The contractor further agrees that in the event of the annulment of this contract, as above provided, the owner shall have the right to enter upon the premises and take possession, for the purpose of completing the work under this contract, of all materials, tools, and appliances thereon belonging to the contractor, and to employ any other person or persons to finish the work herein provided for, and to provide all the materials necessary therefor.”

It is well to keep in .mind that the plaintiff amended his petition by alleging that “on the 21st day of September the principals, Lightman, McDonald & Co., wrongfully abandoned the said contract and the work thereon, and wrongfully refused to proceed with said contract or to continue work thereon, and wrongfully abandoned the premises of petitioner on which they were working, and thus made it necessary for your petitioner to take charge of and complete the work, which your petitioner did do.” No exception was taken by the defendants to the allowance of the amendment, and therefore the pleading stands before the court as amended, and the question is whether the demurrer to the petition as amended should have been sustained upon either of the three grounds of the oral demurrer. The clause of the contract upon which the defendant relies does not attempt to deal with abandonment of the work by the contractor. In fact, in the contract between the owner and the contractor- there is no provision dealing with the question of abandonment. The clause upon which the defendant relies, in contending that the judgment of the engineers should have been obtained before the notices were spnt, provides that the contractor agrees that “should he fail to at any time provide a sufficiency of competent workmen, machinery, or materials, or . . should the progress of this work at any time be such as would result'in his failure to complete the work upon the date herein agreed upon, of which conditions the engineers are to be the judge, the owner shall have the right to require, by written notice, the contractor to, at his own expense, employ such additional labor, machinery, or material as the engineers may direct to be put upon the work.” A fair construction of this clause means that the judgment of the engineers shall be invoked when, in the opinion of the owner, there is an insufficiency of competent workmen, machinery, or materials, or the progress of the work at any time would result in the failure of. the contractor to complete it within the date agreed upon. It evidently contemplates that the work is in progress, that the contractors are still at work upon the job, and if the owner thinks that they are making insufficient progress, then he may request the judgment of the engineers, and if in their opinion there is an insufficiency of workmen, etc., or the contractors are not making such progress as will probably result in its completion upon the date agreed upon, then he may give the written notices requiring them to put additional labor, machinery, and material on the work. It would be absurd to say that the judgment of the engineers should be obtained in order to determine whether or not the contractors would likely complete it with the workmen and materials being used on the job within the date agreed upon, when the contractors have completely abandoned the work. Abandonment, of course, means that they have quit the work entirely, that they do not expect to complete it, or will not attempt to complete it. In construing a contract the court should seek to effectuate the intention of the parties making it, and should ascertain that intention from the language employed in the instrument itself. This court has said that contracts like that in the instant case, which is substantially one of fidelity insurance, are to be governed by the rules applicable to insurance companies, and when the contract is fairly susceptible of two constructions, one favorable and one unfavorable to the indemnity company, the latter is to be adopted. It is a familiar rule of law that ambiguities are to be construed most strongly against the insurer. John Church Co. v. Ætna Indemnity Co., 13 Ga. App. 831 (80 S. E. 1093); Hall v. General Accident Assurance Corp., 16 Ga. App. 74 (85 S. E. 600); American Surety Co. v. Pauly, 170 U. S. 133, 144 (18 Sup. Ct. 552, 42 L. ed. 597); Home Savings Bank v. Mass. Bonding &c. Co., 19 Ga. App. 352, 362 (91 S. E. 494), and citations. The contract or the 'bond contains nothing that requires the certificate or judgment of the engineers where the contract is abandoned by the contractor. In Heidbrink v. Schaffner, 147 Mo. App. 632 (127 S. W. 418), the Missouri court holds, that a building contract, providing that the owner, on a certificate by the architect of the contractor’s failure to perform any of the agreements, may on three days notice terminate the contract and complete the work, and that the expense incurred by the owner shall be certified by the architect, whose certificate shall be conclusive, does not provide against the contingency of abandonment of the work by the contractor, and where the contractor abandons the work, the owner may complete it without obtaining the architect’s 'certificate; the word "agreements” being synonymous with the word "stipulations.” In the opinion in that ease it is said: “We accede to the proposition asserted by counsel for defendants that a stipulation for the certificate of an architect about whether breaches of a contract have occurred or payments are due under,, it, or any like matter, requires the party who seeks damages for a breach embraced in the stipulation to allege and prove a certificate was given.” But the court goes on to observe that stipulations of this sort as to certificates from an engineer do not apply where the contractor has abandoned the contract and the suit is brought on his bond; and it is stated that “this conclusion was announced in a case on an identical bond .and contract in Fuller v. Doyle, 87 Fed. 687, 692.” See also El Paso &c. R. Co. v. Eichel (Tex. Civ. App.), 130 S. W. 948; Dorn v. Ebbesen, 72 Wis. 284 (39 N. W. 535).

In the case of Smith v. Jewell, 104 Md. 269 (65 Atl. 6), the contract provided that if the contractor should fail to supply a sufficiency of skilled workmen, or fail in the performance of any of his agreements, the owner might, on receiving a certificate of the architect to that effect, provide labor and deduct the cost thereof, and if the architect should certify that the contractor’s failure was sufficient ground for such action, the owner might terminate the employment and complete the work at the expense of the contractor. The court held that this language did not apply to the abandonment of the contract by the contractor, and that on the contractor, voluntarily and without excuse, abandoning the work, whether nearly completed or not, the owner, on giving notice to him and his surety of his purpose to complete the work, was entitled to recover from them the difference between the reasonable cost of completing the work and the balance of the unpaid contract price, without securing the architect’s certificate called for in the contract. See also Fuller v. Doyle, El Paso &c. R. Co. v. Eichel, and Dorn v. Ebbesen, supra. In Mallard v. Moody, 105 Ga. 400, 404 (31 S. E. 47), it was said: “It is usual to constitute the engineer a referee as to the meaning of the plans and specifications which are his own invention and handiwork, a certain construction of which is necessary to the proper erection and completion of the work. His powers cannot be enlarged by implication, but they will be confined strictly within the terms of the contract.”

The original petition practically charges an abandonment of the work by the contractors. It alleges that the “principals, wrongfully and in violation of their contract, discontinued the work contemplated by the contract, and did not do any work thereon after September 21, 1914.” Accordingly, the lighting company on October 1, notified the contractors that unless “you or your surety shall, within five days from the date hereof, resume work,” etc., “your contract shall become cancelled, and we shall take possession for the purpose of completing the work as provided in the contract.” While this language does not use the word abandon, it substantially charges an abandonment of the contract. The amendment filed by the plaintiff, which has already been set out, distinctly alleged an abandonment of the work.by the contractor, and we are now dealing with the petition as amended. I think, therefore, that under the contract and the bond, no certificate or judgment of the engineers was required, when the contractor abandoned the work, but that the lighting company might proceed to give notice to the surety of such default on the part of the contractor, and in order that the surety might- exercise the option which it had, of completing the work, or might take steps as it might think necessary in order to protect itself; and upon the failure of the surety company to take possession and complete the work, the lighting company might proceed to do so.

We come now to the second proposition: The third ground of the oral demurrer is that the petition failed to show that any notice was given to the surety of the plaintiff’s contention that the contractors had abandoned the contract, as required by the condition in the bond that the surety “shall be notified in writing of any act on the part of the said principals, or their agents or employees, which may involve a loss for which the said surety is responsible/’ etc. The notices have already been referred to. They were given on October 1 and October 8. The letter of October 1 was mailed to the contractor, and a copy of it also mailed to the surety company, by registered mail. This letter addressed to the contractor said: “No work.on your contract having been done since September 21, please take notice that unless you or your surety shall within five days from date hereof resume work with such labor, equipment, and material as to, in the judgment of the engineers, insure completion within the time now granted you, your contract shall become cancelled, and we shall take possession for the purpose of completing the work as provided in the contract.” This was followed by the letter of October -8, a copy of which was also mailed to the surety company, in which both parties were informed that, in accordance with the provisions of the contract, the owner thereby cancelled the contract by reason of the failure to resume work as previously notified, and had taken possession of the work for the purpose of completing the same on the contractor’s account. The clause of the bond which provides for notice simply says that the surety “shall be notified in writing of any act on the part of the said principals, or their agents or employees, which may involve- a loss for which the said surety is responsible hereunder,- immediately after the occurrence of such act shall have come to the knowledge of said owner.” It is immaterial, it seems to the writer, whether the notices were given upon the right or the wrong theory, if they were a. substantial compliance with the clause in the bond requiring notice to the surety company of any act on the part of the principal which might involve a loss to the surety. The writer thinks that the notice given was a sufficient compliance with that clause in the bond quoted above to put the surety company on notice that the contractors had discontinued the work since September 21, and that it would treat such discontinuance as an abandonment of the work.. It notified the surety company that the owner Would give them five days after October 1 in which to resume the work, and that at the end of that time if they did not resume the work, the owner would take possession and complete it. This notified the surety company that the owner would, five days after October 1, treat the failure of the contractors to resume work as an abandonment of the work, and gave the surety company an opportunity, at its option, to assume the contract and sublet or complete it, as provided in the bond in the event of abandonment. ' It certainly put the company on notice of this act on the part of the principal, which might involve a loss to the surety company, and that is all that the notice required, i. e. to notify them of any act on- the part of the principal which might involve a loss to the surety company. It is true that a clause in the bond says that if the principal shall voluntarily abandon the contract, the surety shall have the right at its option to assume the contract or to sublet or complete the same, but by this notice the surety company was not deprived of this right. . The notice in fact called on the contractor or the surety company to' resume work on the job. The surety company had eight days after the notice was given in which to exercise this option, if it desired to do so. How could the owner have put the surely company upon notice more specifically and definitely than it did? It notified the surety of the discontinuance of the work by the principal; it called on the surety to resume work within a certain time, and in effect, if not in exact language, notified the surety that a further discontinuance would be treated as abandonment; it certainly put the surety upon notice that this default, on .the part of the principal might involve the surety in a loss. The notice simply stated the facts to the surety company, and that is all that the clause in the bond with reference to the notice required. I think, therefore, that the allegations in the petition on the question of notice to the surety company were sufficient to withstand the attack made by the demurrer, and to take the case to a jury, and that the court erred in sustaining the demurrer and in dismissing the petition.


author: Bloodworth, J;

text:
    8491.
    BLACKSTOCK, HALE & MORGAN v. PHILLIPS-JONES COMPANY INC.
    1. The court did not err in its ruling on the demurrer to the original petition, or in overruling the demurrer to the petition as amended.
    2. The record shows that at the time the defendants attempted to countermand the order, there had been such part performance of the contract as to take it out of the operation of the statute of frauds.
    3. The testimony of D. P. Phillips was not inadmissible for the reasons urged.
    4. The other alleged errors are not such as are likely to recur when the case is retried.
    5. Under the facts of the instant case the remedy of the seller is by a suit for breach of contract, or by pursuing one of the statutory remedies pointed out in the Civil Code (1910), § 4131.
    Decided February 19, 1918.
    Complaint; from Pulton superior court — Judge Ellis. January 22, 1917.

      Joseph W. & John D. Humphries, for plaintiffs in error.

      May son & Johnson, contra.
   Bloodworth, J;

Only the ruling stated in the 5th headnote needs any elaboration. This was-a suit on account for the price of certain shirts sold by the plaintiff, Phillips-Jones Company, to the defendant, Blackstock, Hale & Morgan. The plaintiff alleged, in paragraph 9 of the petition, that the defendants refused to accept the goods, and that they “stored same as the property of defendants, and same are now stored as the property of defendants, and petitioners bring this suit and pray judgment for the purchase price with the interest,” etc. The plea answering this paragraph put the plaintiff on proof of the allegation that it had stored the goods for the defendants. There was, however, no evidence to sustain this allegation that the property had been stored for the defendants. It is undisputed that (as shown by the testimony of Phillips, a director and the general manager of the plaintiff) the defendants countermanded the order for the shirts several months prior to the delivery to the carrier. Phillips admitted receiving a letter from the defendants on October 24, 1913, cancelling the order, and a letter from them on November 28, 1913, again cancelling the order, and notifying the plaintiff that they would not accept the goods. The goods were delivered to the carrier, as alleged in the petition, on April 30, 1914.

Under the facts of the case the remedy of the seller was by a suit for breach of contract, or by pursuing one of the statutory remedies pointed out in the Civil Code (1910), § 4131. As was said in Oklahoma Vinegar Co. v. Carter, 116 Ca. 140 (42 S. E. 378, 59 L. R. A. 122, 94 Am. St. R. 112): “The notice indicated above [countermand of the order for shipment], under the common law, operates as a breach of the contract by the vendee, and in such a case the remedy of the vendor is in an action to recover damages for such breach. Under the statute the vendor, after the purchaser refuses to take and pay for the goods, may in' an action recover the price of the goods, where it appears that, after default of the purchaser, he stored and retained them for such purchaser. Under the evidence the statutory remedy was not available to the plaintiff in the present ease, and his only remedy was a suit to recover damages for a breach of the contract. His action, as brought to recover the contract price of the goods, was not maintainable.” The Supreme-Court said in that case: “It must be ruled, from a consideration of the numerous cases cited above and the rule therein •enunciated, which seems to be founded both in reason and justice, that a notice from the buyer of goods, such as. appears in this case, operates as a breach of the contract; and without attempting to harmonize the numerous cases arising in other jurisdictions as to the remedy which the law affords to the seller under such circumstances, we can reach such conclusion also on the law contained in our Civil Code [of 1895], § 3551 [Civil Code of 1910, § 4131], which prescribes that where the purchaser refuses to take and pay for goods bought, ‘the seller may retain them and recover the difference between the contract price and the market price at the time and place for delivery; or he' may sell the property, .acting for this purpose as the agent of the vendee, and recover the difference between the contract price and the price on resale; or he may store or retain the property for the vendee and sue him for the entire price/ While under this last provision the seller might have stored and retained the property for the buyers after notice by the buyers that they would not receive the goods, it is sufficient to say that it did not do so, but, without so doing, sought to recover the price agreed on. .Had it done so it might have brought an action against the buyers for the entire price of the goods. On the contrary, instead of storing and- retaining the goods after the notice, it delivered them to the carrier, doubtless under the well-recognized general rule that in ordinary transactions of bargain and sale of goods, a delivery to the carrier is a delivery to the seller. It may be that the provisions of this section of our code do, to some extent at least, modify the rule found in some of the authorities above cited; but under its plain provisions, the remedy of the seller in this case was not to sue for the price of the goods, but it was remitted to its action for a breach of the contract.” See also, to the same effect, Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (4), 742 (56 S. E. 1030); Robson v. Hale, 139 Ga. 753-755 (78 S. E. 177); Bridges v. McFarland, 143 Ga. 581 (1) 583 (85 S. E. 856); Carolina Cement Co. v. Columbia Co., 3 Ga. App. 486 (60 S. E. 279); Black Co. v. Kaplan, 9 Ga. App. 811 (72 S. E. 303); Linder v. Cole Lightning Rod Co., 10 Ga. App. 102 (72 S. E. 719); Ga. Agricultural Works v. Price, 11 Ga. App. 82 (74 S. E. 718); Southern Flour Co. v. St. Louis Grain Co., 11 Ga. App. 403 (75 S. E. 439); American Mfg. Co. v. Champion Mfg. Co., 13 Ga. App. 555 (79 S. E. 485).

The suit in the instant case was for the price of the goods, n6t for breach of contract, and the plaintiff apparently recognized the necessity of alleging, in order to maintain the action, that it had stored the goods for the vendees; but there was no evidence whatever to sustain this allegation, and therefore the case was not proved as laid. For this reason alone the court erred in overruling the motion for a new trial.

Judgment■ reversed.

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


author: Bloodworth, J.

text:
    8617.
    Driskal v. Mutual Benefit Life Insurance Company.
    Decided February 19, 1918.
    Action upon life-insurance policy; ‘from Baldwin- superior court ■ — Judge Park. February 17, 1917.

      Sibley & Sibley, for plaintiff.

      Brewster, Howell & Heyman, for defendant.
   Bloodworth, J.

A majority of the court is of the opinion that the record in this case and the opinion of the Supreme Court when the original • casé between these parties was before it (144 Ga. 534) show that-'the ■original petition filed by the plaintiff was dismissed on special demurrer; and therefore that the- merits of- the case have never been passed upon, and the court below, trying the case without the intervention of a jury, erred in sustaining the plea of res adjudicata and dismissing the petition. Papworth v. Fitzgerald, 111 Ga. 54 (36 S. E. 311). The writer is in doubt, but.concurs.

Judgment reversed.

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


text:
    8570.
    Leonard v. Cohutta Banking Company.
    Decided February 19, 1918.
    Complaint; from Murray superior court — Judge Wright presiding. February 20, 1917.

      Paul F. ATcin, Maddox, McOamy & Shumate, for plaintiff in error.

      G. N. King, R. N. Steed, H. H. Anderson, W. G. Martin, W. B. Mann,- Little, Powell, Smith & Goldstein, contra.
   Bloodworth, J.

The court did not err in its rulings on the pleadings, nor in directing a verdict for the-plaintiff. • Judgment affirmed.

Broyles, P. J., concurs. Harwell, J., disqualified.


author: Luke, J.

text:
    8677.
    Davis v. Peagler.
    Decided February 27, 1918.
    Claim; from Taylor superior court — Judge Munro. November 25, 1916.
    ■ C. W. Foy, for plaintiff.

      JereM. Moore, G. B. Marshall, W. B. Steed, Jule Felton, contra.
   Luke, J.

1. Where property levied on is sold in accordance with the provisions of the Civil Code of 1910, § 6068 et seq., regulating the sale ’ of personal property of a perishable nature, the sale divests all liens on the property sold, and the liens so divested attach to the money raised by the sale. Welsh v. Lewis, 71 Ga. 387; Cincinnati Cordage &c. Co. v. Dodson, Printers’ Supply Co., 131 Ga. 516 (62 S. E. 810).

2. The court did not err in granting a first new trial.

Judgment affirmed.

Wade, C. J., and Jenhins, J., concur.


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

text:
    9280.
    JACKSON v. THE STATE.
    Under tlie particular facts of this ease the defendant was not guilty of violating section 412 of the Penal Code (1910).
    Decided March 6, 1918.
    Accusation of disturbing public worship; from city court of Floyd county — Judge Nunnally. October 15, 1917.

      W. B. Mebane, for plaintiff in error.

      J. F. Kelly, solicitor, contra.
   Broyles, P. J.

The defendant, J. W. Jackson, was charged with disturbing public worship in Holbrook’s chapel, on August 19, 1917, “by cursing and using profane and obscene language, and by interrupting and disturbing J. D. O’Bryan, and preventing the said O’Bryan from conducting prayer meeting at said chapel.” A verdict of guilty was returned, and a straight sentence of twelve months on the chain-gang was imposed by the trial judge. The material undisputed facts, as disclosed by the record, are here stated: The defendant was,a minister of the “True Baptist,” or, as it is more commonly known, “Holy Boiler” faith. On invitation from a number of the residents of the community, he had been conducting a series of religious meetings in Holbrook’s schoolhouse, which had been built by the community for school and church purposes. He- began preaching there on Tuesday night, August 14, 1917, and had preached there on every subsequent night up to Sunday, August 19, 1917. On that Sunday, in the afterpoon, he held services in the chapel and notified his congregation that he would also preach there that night, and invited everybody to come and hear him. For about two years the people of the community had been having prayer-meetings in the sehoolhouse, but no such meeting had been held there on Sunday nights for two or three weeks prior to the 19th of August. The prayer-meetings, when held, were led sometimes by J. D. O’Bryan, the superintendent of the Sunday-school, and sometimes by other persons. Some time during the day on Sunday, August 19, Sunday-school was held at the sehoolhouse, and Mr. O’Bryan at that time told those assembled that they were invited to a prayer-meeting to be. held there that night, and that he would then speak to them on an important matter. O’Bryan then did not know'that arrangements had been made by the defendant to preach th.ere that night. On the night in question O’Bryan reached the sehoolhouse first, and lit some small lamps therein. Soon afterwards the defendant arrived and lit two large gas-lamps, which he placed on each side of the room, and took a seat on the front bench. When the congregation had assembled O’Bryan called up the choir, and, after some hymns were sung, a prayer was offered. O’Bryan then read a chapter from the Bible, and while he was doing so the defendant asked him what chapter he was reading from. O’Bryan told him, and the defendant opened his Bible. When O’Bryan finished reading the. chapter he told those assembled that he was not going to comment on the chapter, but that instead he was going to say something for the good of the community. He then said, in substance, that the community was being divided and demoralized by the religious meetings which were being conducted by the defendant.- Thereupon the defendant arose, and saying to O’Bryan, “Tell the truth,” asked to be allowed to say a word, opened his Bible, read a verse from it, and said that all there, including O’Bryan, who did not believe in the teachings of the Bible would go to hell. O’Bryan told Jackson to sit down, that he could talk when he (O’Bryan) was through, and Jackson promptly sat down. O’Bryan then continued his abuse of. Jackson and his religious followers, saying, among other things, that “Jackson and his crowd had copie from the lowest down scrapings of the earth.” Jackson then arose again, and once more said to O’Bryan, “Tell the truth.” O’Bryan again told Jackson to sit down, and Jackson obeyed. At this juncture there was considerable talking by other persons in the house, and some confusion, and O’Bryan announced that on account of the confusion the congregation would consider itself dismissed without the' benediction. When this announcement was made by O’Bryan, the defendant was seated, and was saying and doing nothing. A good many people started to leave. The defendant then arose and announced that he was going to preach, and remarked, “When you turn on the light and sunshine the lizards begin to crawl but.” He then attempted to preach, but the confusion was so great he gave it up, and the people dispersed. Three fourths of those present at the prayer-meeting came on the defendant’s invitation to hear him preach. Several of them testified that they did not belong to his faith, but that they liked his preaching, as it was straight Bible doctrine, and that they had come there to hear his sermon.

In our opinion, under the facts just stated (which were undisputed), the conviction of the accused was unauthorized. The evidence clearly shows that on the night in question his right to the possession of the meeting-house was as good as, if not better than, that of O’Bryan, and that the great majority of the people there assembled had come, not to attend the prayer-meeting, but to hear the defendant preach. There was not the slightest evidence that the defendant was intoxicated, or that he cursed or used profane or obscene language, or that he otherwise indecently acted. The indictment is based on section é 12 of the Penal Code (1910), which is as follows: “Any person who shall, by cursing or using profane or obscene language, or by being intoxicated, or otherwise indecently acting, interrupt, or in any manner disturb, a congregation of persons lawfully assembled for.divine services, and until they disperse from such place of worship, shall be guilty of a misdemeanor.” The rule is universal that all criminal statutes must be strictly construed. We do not think, however, that, even' under a liberal construction of this statute, the evidence authorized the conviction. In our opinion it was not the legislative intent, in enacting the statute, to make it a penal offense for a minister of the gospel, in his own church, or in a church where he was invited to preach, to voice vigorous protest when he and his religious followers (present on that occasion to hear him-preach) were denounced to their faces as coming from “the lowest down scrapings of the earth” by a leader of a prayer-meeting, who, after offering a prayer and reading a chapter from the Bible, instead of commenting, as is usually done, upon the chapter just read, began to abuse and vilify the minister and his flock.

It is a fair inference from the record that there was a conflict between two rival religious denominations, as to which was entitled to carry on religious services at the chapel on the night in question. In Woodall v. State, 4 Ga. App. 783 (62 S. E. 485), it was said: “It is manifest from the record that there was conflict between two rival factions in the . . church, as to which was entitled to carry on religious services. . . The statute was never designed to be used as a means of settling, by criminal prosecution, the respective rights of contestants for the privilége of carrying on divine services> at a particular time, or in a particular house of worship. . . It is beyond the power of the courts to settle by criminal prosecutions the respective rights of contesting claimants to a benefice.” We think, under the circumstances, that the leader of the prayer-meeting, and not the preacher, was the one directly responsible for the disorder that followed the former’s abuse of the latter. The defendant’s conviction was contrary to the law and the evidence, and the court erred in overruling his motion for a new trial.

Judgment reversed.

Harwell, J., concurs. Bloodworth, J., dissents.

Bloodworth, J.,

dissenting. The indictment in this case is based on section 412 of'the Penal Code (1910), which is as follows: “Any person who shall, by cursing or using profane or obscene language, or by being intoxicated, or otherwise indecently acting, interrupt, or in any manner 'disturb, a congregation of persons lawfully assembled for divine service, and until they are dispersed from such place of worship, shall be guilty of a misdemeanor.” The gist of the offense is interrupting or disturbing “a congregation of persons lawfully assembled for divine service.” The evidence establishes, beyond dispute, that there was a congregation of persons lawfully assembled for divine service, and that the congregation was greatly disturbed. Indeed, the evidence shows that the meeting broke up in great confusion. One of the witnesses testified in part as follows: “We went there for the purpose of going to prayer meeting. I heard J. W. Jackson get up and read a verse from the Bible at the time Mr. O’Bryan was conducting prayer meeting there, and I heard him tell the congregation that all who believed in the preaching Mr. O’Bryan was preaching would go to hell, and then he turned to Mr.O’Bryan and said, ‘and you will go with them.’ Mr. O’Bryan told Mr. Jackson to sit down, which he did. Later on, Mr. Jackson, while Mr. O’Bryan was talking about the doctrine that Mr. Jackson was preaching, asked Mr. O’Bryan to explain himself, and also to tell the truth. Mr. O’Bryan, because of the confusion of the congregation, told the people that because of the confusion they could consider themselves dismissed.” Other witnesses testified to substantially the same thing. As I see the evidence, it establishes the guilt of the defendant beyond any reasonable doubt, and I cannot, therefore, agree with the above opinion of my associates.


text:
    9328.
    Manley v. State of Georgia.
    Decided March 6, 1918.
    Condemnation of vehicle under liquor law; from city court of Griffin — Judge Goodrich. October 6, 1917.

      B. M. Smith, W. H. Connor, for plaintiff in error.

      J. A. Darsey, solicitor pro tempore, contra.
   Bloodworth, J.

The motion for a new trial contained the general grounds only, and, there being some evidence to support the verdict, “this court can not disturb the finding of the jury by overruling the refusal of the trial judge to grant a new trial upon the ground'that the verdict was contrary to evidence or without evidence to support it.” McCarty v. Keys, 19 Ga. App. 494 (91 S. E. 875), and eases cited.

Judgment affirmed,.

Broyles, P. J., and Earwell, J., concur.


text:
    9363.
    McNULTY v. THE STATE.
    The charge of the court was properly based on section 703, and not on section 719, of the Penal Code of 1910; and, in the absence of a request for fuller instructions, the charge was sufficiently full as to intent to defraud.
    Testimony as to a transaction which had no connection with the one under investigation was not admissible for the purpose of showing good faith on the part of the accused.
    There was evidence to support the verdict.
    Decided March 6, 1918.
    Indictment for cheating and swindling; from Gwinnett superior court — Judge Cobb. October 26, 1917.

      1. L. Oakes, for plaintiff in error.

      W. O. Dean, solicitor-genérál, O. A. Nix, contra.
   Bloodworth, J.

Í. The 4th ground of the motion for a new trial is but an amplification of the general grounds.

3. Under the allegations in the indictment in this case the judge properly based his charge to the jury on section 703, and not on section 719, of the Penal Code of 1910.

3. The court did not err in ruling out the evidence-set forth in the 7th ground of the motion for a new trial, which it was insisted tended to show good faith on the part of the defendant; the evidence ruled out relating to a transaction which had no connection whatever with the one under investigation.

4. The indictment in this ease is based on section 703 of the Penal Code of 1910, and contains all allegations necessary to charge the crime under that section. A part of the indictment is as follows: “Did then and there, unlawfully and with force of arms, falsely and fraudulently represent to E. H. McGee & Co., a partnership composed of E. H. McGee and J. W. McGee, with intent to cheat and defraud the said E. H. McGee & Co., as aforesaid, that he, the said John McNulty, alias John McNelton, had then on deposit in the Kansas State Bank, of Fort Scott, Kansas, the sum of eight ($800.00) hundred dollars and that he had on deposit in another bank at Fort Scott, Kansas, the name of which he did not give, the sum of three ($300.00) dollars, and that he was then and there the owner of one brick drug-store building in Fort Scott, Kansas, all of said statements and representations as to the money in banks and the ownership of the brick store were knowingly and designedly false, and made with the intention to deceive and defraud the said E. H. McGee & Co.,” etc. In the motion for a new trial it was contended that the court erred in not charging the jury that before they would be authorized to convict the defendant, they must believe, from the evidence, that the representations were made with intent to defraud. The trial judge, in charging the jury, read the indictment and quoted to them the substance of section 703, supra, and then said: “It is for you to determine from the evidence, including the prisoner’s statement, whether the defendant is guilty as charged; you consider all of the evidence that has been introduced to you, both that delivered from the stand, as well as the -documentary evidence that you will have out before you, and ascertain from that evidence whether the charge as made in the bill of indictment has been sustained by evidence which, satisfies you of the guilt of the accused beyond a reasonable doubt;” and' in instructing the jury on the form of the verdict the judge said: “If you believe, after an investigation of this character, that the defendant is guilty as charged, beyond a reasonable doubt, you would be authorized to so find. If, on the other hand, you do not believe the defendant is guilty as. charged, or have a reasonable doubt in regard to his guilt, you would be authorized to find him not guilty.” These instructions are sufficient as to “intent to cheat and defraud.” In the case of Hagood v. State, 5 Ga. App. 80 (62 S. E. 641), Chief Judge Hill said: “If the indictment charges the offense in the language of the statute, and the evidence proves the charge as laid in the indictment, and the court instructs the jury as to the definition of the offense by the statute, nothing else can be required.” Further in the same opinion it was said: “We think, therefore, that when the judge, in charging the jury in this ease, gave the definition o'f the statutory offense, and frequently emphasized the fact'that the evidence must establish a fraudulent conversion of the money of the company, he fully covered the principle of the request, and left to the jury no room to doubt that the defendant could not be convicted, unless he had converted the money of the company fraudulently and with intent to steal the same. If the correctness of the view here suggested needs any support, it is found in the interpretations which the courts have placed upon statutory offenses similar to that of larceny after trust, as defined by our code. The Supreme Court of California, after quoting the language óf á statute substantially similar to ours, says: .‘Embezzlement is a statutory offense, and it was not necessary for the court to go beyond the statute and tell the jury that the appropriation or conversion must be made with intent to steal the money.’ People v. Cobler, 108 Cal. 538 (41 Pac. 401). The Supreme Court of Missouri, in commenting upon a similar statute, said: Ht is next objected that the indictment is insufficient for failure to aver the intent with which the defendant converted the money to his own use. Section 3555 does' not in specific words make the criminal intent an element of the offense, further than is necessarily included in the words ‘convert to his own use,’ or ‘shall make away with or secrete.’ These words must be held to be tantamount to and synonymous with the words ‘with intent to defraud; and to meet every requirement of the allegation of eriminal intent/ State v. Noland, 111 Mo. 473, 486 (19 S. W. 717, 717). ‘An instruction that if the jury find from the evidence that the defendant unlawfully, fraudulently, and feloniously converted to his own use money he collected by virtue of his official position, they should find him guilty, was not erroneous as ignoring the criminal intent/ State v. Manley, 107 Mo. 364 (17 S. W. 800).” See also Sadler v. State, 9 Ga. App. 201 (70 S. E. 969); Isaacs v. State, 7 Ga. App. 799 (2) (68 S. E. 338); Crawford v. State, 4 Ga. App. 789 (3) (62 S. E. 501). If fuller instructions on this point were desired they should have been requested, as provided by section 6084 of the Civil Code of 1910.

5. There was evidence to support the verdict, which was approved by the trial judge, and this court will allow it- to stand.

Judgment affirmed.

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


author: Harwell, J.

text:
    9373.
    Culp v. The State.
    Decided March 6, 1918.
    Indictment for larceny the house; from Putnam superior court — ■ Judge Park. October 30, 1917.

      Boy D. Stubbs, for plaintiff in error.

      Doyle Campbell, solicitor-general, contra.
   Harwell, J.

1. The main bill of exceptions contained no assignment of error on the exceptions pendente lite; hence those exceptions to the overruling of the demurrer to the indictment will not be considered. Jones v. Ragan, 136 Ga. 653 (71 S. E. 1098); Shaw v. Jones, 133 Ga. 446 (66 S. E. 240); Nicholls v. Popwell, 80 Ga. 604 (9-10), 605 (6 S. E. 21).

2. The defendant was convicted of larceny from the house. The only circumstance against him was the fact that the prosecutor claimed to have found a letter addressed to the defendant in the house from which the cotton was alleged to have been stolen, which letter the defendant admitted belonged to him. The evidence on behalf of the State being entirely circumstantial, and not being sufficient, when considered in connection with the other testimony, to exclude every reasonable hypothesis save that of the guilt of the accused, the verdict was not authorized by the evidence, and the trial judge erred in overruling the motion for a new trial.

Judgment reversed.

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


author: Broyles, P. J.

text:
    9389.
    Worley v. The State.
    Decided March 6, 1918.
   Broyles, P. J.

1. Statutory provisions respecting the drawing of juries are directory merely; and irregularities therein, unless plainly operating to the prejudice of the challenger, form no ground for challenge to the array. Rafe v. State, 20 Ga. 60; Woolfolk v. State, 85 Ga. 69, 88 (11 S. E. 814) Governor v. State, 5 Ga. App. 357 (63 S. E. 241); 1 Thompson on Trials, § 34, p. 32.

(a) The above ruling is not contrary to the decision in Cochran v. State, 62 Qa. 731; for there a new trial was given solely because the mandatory requirement of the statute, as to the putting of the array upon the defendant, was not complied with.

2. While the drawing of juries for an adjourned term of a superior court is usually done under the provisions of section 796 of the Penal Code of 1910, yet where these provisions are not complied with, and the adjourned term convenes, without any order having been given for the attendance thereon of the juries drawn for the regular term, and without any new juries having been drawn therefor at the regular term, the judge has authority, under the provisions of section 875 of the Penal Code of 1910, at the adjourned term itself, to draw such juries as may be necessary, and cauge them to be summoned.

3. Under the particular facts of this case, as disclosed by the record, the court did not err in overruling all of the challenges to the array.

4. Exception is taken to the following excerpt from the charge of the court: “Provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder, nor to reduce the crime from murder to voluntary manslaughter, unless all the circumstances in the case, taken in connection with all the acts of the deceased, you believe they are sufficient to excite the fears of a reasonable man.” This charge was not erroneous for any of the reasons assigned. It was a more favorable charge than the defendant, under the law, was entitled to. Deal v. State, 145 Ga. 33 (88 S. E. 373), s. c. 18 Ga. App. 70 (7) (88 S. E. 902).

5. No material error appears in any of the other excerpts from the charge excepted to, when they are considered in the light of the charge as a whole and the facts of the case. The charge was a full and fair presentation of the issues and the law of the case, and no errors prejudicial to the accused appear therein.

6. When the facts of the ease- and the entire charge are considered, the court did not err in omitting to charge the contentions of the defendant, as set forth in the la^t two grounds of the amendment to the motion for a new trial, no timely written requests for such instructions having been presented.

7. The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

Indictment for murder; conviction of manslaughter; from Elbert superior court — Judge W. L. Hodges. November 24, 1917.

Thomas J. Brown, Worley & Nall/ior plaintiff in error.

A. 8. Shelton, solicitor-general, 8am. L. Olive, contra.


text:
    9394.
    BELL v. THE STATE.
    The evidence was sufficient to authorize the verdict against the plaintiff in error, who, with another, was found guilty under an indictment charging them with violation of the provisions of the prohibition law as to possession of liquors.
    Decided March 6, 1918.
    Indictment for misdemeanor; from Clarke superior court— Judge Cobb. November 14, 1917.

      Austin Bell, Thomas & Thomas, for plaintiff in .error.

      W. 0. Bean, solicitor-general, contra.
   Bloodworth, J.

The motion for a new trial contains only the general grounds. The following is the opinion of Judge Cobb, who presided at the trial, as contained in the record and as delivered and ordered filed in connection with his order overruling the motion for new trial: “These defendants [Andrew Bell and Moses Shaw] were indicted for having the possession of liquor in violation of the law, were tried jointly, and each was convicted, and Andrew Bell’s motion for new trial is now for decision. In passing upon the motion for new trial, that view of the evidence which is most unfavorable to the accused must be taken, for every presumption and every inference is in favor of a verdict. The evidence demanded a verdict of guilty in the case of Moses Shaw, for under his statement he was in possession of liquor, even though according to his version it was only for the purpose of taking a drink. The evidence against Andrew Bell is circumstantial. The jury had the right to disregard entirely the statements of the accused, and, having returned a verdict of guilty, it is to be assumed that they did disregard it. Even if the statement of one accused is evidence for his codefendant jointly tried with him, the jury has a right to disregard the statement in all of its bearings. With the statements eliminated, the question is whether the evidence of the State is sufficient to authorize a verdict of guilty as to Andrew Bell. In my opinion it is sufficient to establish his guilt as principal in the second degree;,and, as in misdemeanors all are principals, the verdict is 'sufficiently supported. Under this view of the case I feel constrained to overrule the motion for new trial. An'order to that effect will fee entered upon the original motion.” We agree with the learned judge in his reasoning, and also that “the verdict is sufficiently supported.”

In connection with the above, attention is called to the decision in the ease of Robison v. State, 114 Ga. 445 (40 S. E. 253), the second headnote of which is as follows: ■ “On the trial of one of two persons jointly indicted, the declarations of the other-that he alone committed the offense with which they are charged, are not admissible in evidence in favor of the accused on trial.” See also the opinion in that case (p. 447) and cases there cited on this point.

Judgment affirmed.

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


text:
    9395.
    DUNHAM v. THE STATE.
    1. The first indictment charged the defendant with entering the store of Joseph Ayoup on Dasher street, with intent to steal goods therefrom. The second indictment charged the defendant with entering the store of Joseph Eyoup, situated at the corner of Ashley and Valley streets, with intent to steal goods therefrom. Held: The indictments showing that the stores alleged to have been entered were at different places, the larcenies must necessarily have been different transactions, and a plea of autrefois acquit to the second indictment, based on an acquittal under the first indictment, was properly stricken on demurrer.
    2. The evidence amply authorized the verdict, and the court did not err in overruling the motion for a new trial.
    Decided March 6, 1918.
    Indictment for entering with intent to steal; from Lowndes superior court- — Judge Thomas. November 19, 1917.

      Whiialcer & Dulces, for plaintiff in error.

      Fondren Mitchell, solicitor-general, contra.
   Harwell, J.

Joe Dunham was indicted for a misdemeanor, the indictment charging that on the 24th of May, 1917, he entered the store of one Joseph Ayoup, with intent to steal the goods of said Joseph Ayoup in the said store. It further alleged that the said store was on Dasher street in the city of Valdosta. He was tried on this indictment and acquitted. He was again indicted for a misdemeanor, the indictment charging that he did enter the store of one Joseph Eyoup, situated at the corner of Ashley and Valley streets in the city of Valdosta, with intent to steal the goods of said Joseph Eyoup in said store. Before arraignment he filed a plea of autrefois acquit, based upon his acquittal on the first indictment. He alleged that the offense charged against him in the first indictment is exactly the same as that with which he is now charged, and that they relate to the same transaction, and that the transaction involved in the former prosecution is practically the same as that involved in the present case. The State demurred orally to the plea, and the trial judge sustained the demurrer and struck the plea. The defendant filed exceptions pendente lite to this ruling, and assigned error thereon in his main bill of exceptions. He was convicted, and he excepts also to the judgment overruling his motion for new trial.

1. The question raised in the instant case by the plea of autrefois acquit is fully discussed in the ease of Gully v. State, 116 Ga. 527 (42 S. E. 790), and the decisions on this subject are there reviewed. In the Gully case the defendant was indicted for bigamy. The first indictment charged that the accused committed the offense of bigamy by marrying Gussie Shingler, and the second indictment, under which he was convicted, charged that he committed the offense by marrying Bessie Shingler. The court held that the acquittal under the first indictment was not a bar to the prosecution subsequently instituted under the second indictment. Mr. Justice Cobb in discussing the question said: “Under the first indictment there could not have been a legal investigation in reference to an unlawful marriage by the accused to any other person than the one named in the indictment. Evidence of a marriage by the accused with Bessie Shingler would not have been admissible under the first indictment. While the offense charged in each indictment is the same in general terms, that is, bigamy, an unlawful marriage to.-a particular person is an essential element in this offense, and the allegation and the proof in reference to this person must correspond. The offenses charged in the two indictments are not, therefore, identical. In the absence of any evidence at all, the indictments on their face show that they could not involve the same transaction.”

In the instant case the charge is that the defendant entered a certain store of Joseph Eyoup, situated at the corner of Ashley and Valley streets. In the first indictment the charge was that he entered the store of Joseph Ayoup, situated on Dasher street. Even if Ayoup and Eyoup in the two indictments be the same person, the stores are different, and the indictments therefore charge different larcenies. Evidence that he entered the store of the prosecutor at the corner of Ashley and Valley streets would not have been admissible under the first indictment, charging the entering of the store on Dasher street. The description of some particular store is an essential element in the offense, and the allegations and the proof in reference thereto must correspond. The offenses charged in the two indictments are not identical. In the absence of any evidence at all, the indictments on their face show that they could not involve the same transaction. They charge the entering of different stores. While the record does not clearly show that Eyoup had another store on Dasher street, it does indicate that he had another store. Eyoup, the prosecutor testified “he [the defendant] said he had been coming in this store two years, and two other times in the other store by the Valdosta Stationery Company, for groceries.” So that if we apply the “same-transaction test,” or the “same-evidence - test” in the case, the acquittal under the first indictment was not a bar to the prosecution under the second, and the demurrer to the plea of former jeopardy was properly sustained. We have not overlooked the cases of Goode v. State, 70 Ga. 759, and Lock v. State, 199 Ga. 730 (50 S. E. 932), cited and relied on by counsel for the plaintiff in error. IJpon examination of those cases they are easily differentiated on the facts from the instant ease.

9. The evidence shows that the defendant was found in the store at night behind some barrels, after the proprietor had locked up the store for the night and gone home. He admitted that he was in there for the purpose of stealing goods, and that he had been going in there and stealing money and groceries. The evidence amply authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    9396.
    Harris v. The State.
    Decided March 6, 1918.
    Indictment for assault and battery; from Camden superior court — Judge Highsmith. November 17, 1917.

      James T. Vocelle, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, contra.
   Broyles, P. J.

1. While a person may resist an illegal arrest by an officer, he may not lawfully use more force than is necessary to prevent the arrest; and in a particular case it is for the jury to determine whether the force used to prevent the illegal arrest exceeded what was necessary to that end; and in no case is such a person authorized to assault an officer upon the mere statement of the latter that he has a warrant for the former’s arrest and that he must consider himself under arrest. The officer must, by some physical attempt, endeavor to make the unlawful arrest, before the other person can lawfully strike him or otherwise resist him by the use of physical force.

2. Under the foregoing ruling the verdict finding the defendant guilty of assault and battery was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.