text:
    10148.
    FARLEY v. THE STATE.
    Decided January 9, 1919.
    Where a defendant in a criminal ease has entered a plea of guilty and sentence has been pronounced thereon, he can not as a matter of right withdraw the plea. His motion to he allowed' to dp so is addressed to the sound, legal discretion of the court, and the judgment thereon will not be controlled unless a manifest abuse of such discretion appears. Where, however, in such a case the accused, during the same' term of court, flies a written motion to be allowed to withdraw his plea of guilty, and, from uncontradicted evidence in support of the motion, it appears that the plea was entered under a misapprehension by him as to the offense to which-he was pleading guilty, and that he thought he was pleading guilty to another offense, refusal to grant the motion is an abuse of discretion.

      Indictment for burglary; from Putnam superior court—Judge Park. October 3, 1918.

      Davidson & Callaway, for plaintiff in error.

      Doyle Campbell, solicitor-general, contra.
   Broyles, P. J.

On September 18„ 1918, at the September term of the superior court of Putnam county, Ike Parley entered a j)lea of guilty to an indictment charging him with the offense of burglary; whereupon the court imposed a sentence of twelve months in the chain-gang. On September 21, during the same term of the court, Farley filed a verified motion to withdraw his plea of guilty, upon the following grounds: “(1) That when said indictment was read to defendant he stated that he was guilty of selling cottonseed and was willing to plead guilty to selling cottonseed, but that he did not intend at said time when said indictment was read to him to plead 'guilty to the offense of burglary, and that said plea of guilty to burglary as charged in said indictment was entered against him without his knowledge that he was pleading guilty to burglary as charged in said indictment, and that he stated to the court'when said case was called and said indictment was read to him that he was willing to plead guilty to selling cottonseed, and that he did not intend to plead guilty to the offense of burglary. (2) Movant further says that he can not read nor write and does not know the meaning of pleas, and was not aware that he was pleading guilty to burglary, and that he now comes during the term of court at which said plea was entered and moves to be allowed to withdraw said plea, on the ground that said plea was not so entered by his knowledge and consent. (3) Movant further says that the said plea of guilty is not the plea entered by him in said ease, as he only entered a plea of guilty to selling cottonseed, and that he did not intend to enter a plea of guilty of burglary. (4) Movant further says that he was not represented by counsel when said plea was entered, and he did, not plead guilty to burglary, and did not know said plea was entered until he had been sentenced. (5) Movant further says that the plea entered was not the plea of defendant, and now, during this the September term, 1918, of said court at which plea was entered, moves to be allowed to withdraw said plea and allowed to plead not guilty, and moves to set aside said plea as not having been entered by him.”

Upon the hearing of the motion the only testimony introduced was that of the accused, who was sworn as a witness and testified' as follows: (Direct examination) “I plead guilty in a ease the other day. I thought I was pleading guilty to selling seed, not to breaking in. I didn’t understand that I was pleading guilty to burglary, but to selling seed. I knew they had two cases against me. I thought I was pleading guilty to selling seed of Mr. Alford’s.” (Cross-examination) “You read that paper'to me [referring to indictment], and asked me whether I was guilty or not, and I said I was guilty; I was guilty of selling seed. I understood you to say guilty of selling seed. When I plead guilty I don’t remember now you calling another case. I remember you calling two eases against me—one for going in the Milledgeville Oil Mill, and one of Mr. Alford’s against me. Anyhow, I understood I was pleading guilty to selling seed. I said I wasn’t guilty, when you read the second indictment. I have been sentenced. After the court passed sentence on me I got dissatisfied about it.” (Eedirect) “I didn’t understand I was pleading guilty to burglary; but to selling seed. I knew they had two cases against me. I thought I was pleading guilty to selling seed of Mr. Alford’s.” (Eecross) “I wasn’t guilty of stealing seed from this' other fellow either. You all didn’t split them.” (Eedirect) “When the cases were called he didn’t separate them. I don’t know anything about technicalities of pleading. I thought it was all up together. I wasn’t guilty of stealing seed from either of them. I was willing to plead guilty to selling seed.” (Question by the court) “Ike, this indictment that you plead guilty to was for breaking and entering that cottonseed building, and, after breaking and entering said house, taking and carrying therefrom a certain number of bushels of cottonseed, worth twenty-five dollars. Was that indictment read to you before you plead guilty in open court?” “No, sir. When I walked up you asked me was I guilty? I said I was guilty of selling seed.” “Didn’t you say you were guilty of breaking into the oil house of the Milledgeville Seed Co.?” “No, sir.” “You claim you didn’t understand what you were charged with?” “I thought I was pleading guilty to selling seed.” This testimony of the accused evidently impressed'the trial judge, for, immediately after hearing it, he made the following oral announcement: “If the defendant in this case will announce ready, I will open- this case; if he does nót, I will not. I don’t want the case continued. These cases stand on the same footing of opening a default in a civil case. "Where a default is opened, the party in whose favor it is opened has to announce ready for trial. If you can get ready for trial by half past one o’clock I will open it. I want it to appear the indictment was read in open court to the defendant before he entered the -plea. You can put in the record it is now ten-thirty o’clock, a. m.”

After this announcement by the 'court, as appears from the bill of exceptions (the truth of which is certified to by the trial judge),' “the solieitoi’Tgeneral never called said case for trial -at half past’ one o’clock, and never called said case for trial during the balance of said term, the said 21st day of September, 1918, being on Saturday, the last day of the term of September superior court, 1918, of Putnam county, and the said court never ordered the solicitor-general to take up said case for trial in accordance with the order made by said court on passing on said motion. But the solicitor-general called and placed on trial other cases against other defendants, ánd during the trial of the last case tried at said term of court, and while one of the counsel for movant was arguing case to a jury in behalf of another defendant, the court dismissed all jurors and parties and witnesses not engaged in the case on trial, for the term; and while sa-id case was on trial, without movant ever having an opportunity to announce ready for trial in said ease, as provided by the order made and passed by the court on the hearing of said motion, the court made and passed an order denying said motion.” While, of course, "the mere oral announcement by the court did not amount to a judgment, it did, we think, throw a flood of light upon the case, inasmuch as it tended strongly to show that in the opinion- of the trial judge the motion pending before him was meritorious. It is our opinion that, under the particular facts of this -case as- hereinbefore set forth, the court erred in denying the defendant’s motion to be allowed to withdraw his plea.

Judgment reversed.

Bloodworth and Stephens, JJ., concur.


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    10155.
    SKIPPER v. THE STATE.
    Decided January 9, 1919.
    An accusation alleging that the defendant “did unlawfully have, possess, and control spirituous, alcoholic, malt, and -intoxicating liquors and intoxicating bitters and other drinks which if drunk to excess will produce intoxication,” was not subject to demurrer on the ground that it failed to set out how the defendant controlled the liquors.
    Accusation of misdemeanor; from city court of Thomasville— Judge W. H. Hammond. September 17, J918.

      J. M. Austin, for plaintiff in error.

      H. J. MacIntyre, solicitor, contra.
   Bloodworth, J.

The accusation in this case alleged that the defendant “did unlawfully have, possess, and control spirituous, alcoholic, malt, and intoxicating liquors and intoxicating bitters and other drinks which if drunk to excess will produce intoxication.” The defendant demurred on several grounds, but the only ground argued in the brief of his counsel in this court was that the accusation “fails to set out how this defendant controlled said whisky and intoxicating beverages.” The other grounds of the demurrer, not having been argued in the brief, will be treated as abandoned. The ground argued was properly overruled. The defendant was charged with a purely statutory offense, and the accusation followed substantially the language of the statute. “An indictment for a purely statutory offense is sufficient which describes the offense in the language of the statute.” Stoner v. State, 5 Ga. App. 716 (63 S. E. 602). “An indictment which charges the offense defined by a legislative act in the language of the act, where the description of the acts alleged as constituting the offense is full enough to put the defendant on notice of the offense with which he is charged, is sufficiently specific.” Glover v. State, 126 Ga. 594 (55 S. E. 592). “The indictment was sufficiently full and definite in its statement to inform the defendant of the offense with which he was charged, and exact enough to protect him from a second jeopardy.” Youmans v. State, 7 Ga. App. 101 (4) (66 S. E. 383).

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


author: Stephens, J.

text:
    10172.
    Tidwell v. The State.
    Decided January 9, 1919.
    Indictment for possession of intoxicating liquor; from Forsytb superior court—Judge Morris. September 21, 1918.

      H. B. Moss, Mozley & Gann, for plaintiff in error.

      John T. Dorsey, solicitor-general, Herbert Clay, contra.
   Stephens, J.

1. The charge of the court fully and fairly submitted the case to the jury, and the exceptions thereto are entirely without merit.

2. The other assignment of error is not referred to in the brief of counsel for plaintiff-in error, and is therefore treated as abandoned.

3. The verdict is amply supported by the-evidence, and the court did not err in overruling the motion for new trial.

Judgment affirmed.

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


text:
    10188.
    WALLER et al. v. THE STATE.
    Decided January 9, 1919.
    1. When the judge gives to the jury a charge as requested} in writing, it is not erroneous for him to add comments that are pertinent and correct. Under rulings of the Supreme Court the comments added to the written request in this case were “pertinent and correct.”
    2. “When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or re- - fusing a new trial; but whenever there is any evidence, however slight, to support aj verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.”
    Indictment for larceny of hog; from Chatham superior court— Judge Meldrim. October 7, 1918.

      Don H. Clark, for plaintiff in error.

      Walter C. Hartridge, solicitor-general, contra.
   Bloodworth, J.

Philip Waller, Lee Waller and William Ennis were convicted under an indictment for hog stealing. Their motion for a new trial was overruled, and they excepted. The evidence for the State showed that two hogs, the description of which “tallied” with those alleged in the indictment to have been stolen, were in the Ogeechee river swamp, and were shot and killed on the morning of November 23, 1917, one by William Ennis and one by Lee Waller. Philip Waller was with the two at the time they did the shooting. The ears of the hogs were cut off by one of the three and put in his pocket. All three of the defendants ran when they ascertained that they were seen. Late' in the afternoon of the same day the three defendants wore seen going in the direction of the home of the mother of William Ennis. All were in a wagon in which were two hogs with their ears cut olí. A witness for the State testified: “I know these defendants. I saw them on the 23d of November, 1917, late in the afternoon, between sundown and dark, at the homo of Mrs. Ennis. I saw the three of them there unloading some hogs, two hogs. I was about 25 or 30 yards away, walking in the road.” Another witness testified that he saw where a wagon went into the swamp and turned ‘around. “It looked like there was blood there; like hogs or something had been carried that way and had trailed the blood to the wagon—I mean where the wagon was, I did not see any wagon. I saw some hair, a lump. It was fresh blood I saw and it was hog hairv The road. . . runs pretty much the same way as the Ogeechee river. . . . The color of the hair J saw was red looking.” .

The only special ground of the motion for a new trial complains of the refusal of the court to give to the jury certain requested instructions as written and without qualifying them. Under numerous rulings of this court we are not called upon to pass upon this ground, because it does not appear that the request was made before the jury retired to “consider of their verdict.” See Penal Code (1910), § 1087; Seaboard Air-Line Ry. v. Lyon, 18 Ga. App. 267 (6) (89 S. E. 384); Shirley v. State, 5 Ga. App. 611 (2) (63 S. E. 583). However, the judge gave the requested charge, which was as follows: “The act of killing the hogs, even though you may believe that these defendants did so, does not constitute the offense of larceny. The State must go further and show that the defendants took and carried away, with intent to steal, the hogs in question; and if it has not been so shown, by the evidence, you would not be authorized to find the defendants guilty, but should find them not guilty.” But the judge added thereto the following: “The slightest moving by the defendants or any of them from the place where t]re hogs were would be sufficient to authorize you to find that there had been an asportation of the hogs.” What the judge added was a correct statement of the law. “In giving to the jury as law what has been reduced to writing by counsel in a request to charge, it is not error for the court to add oral comments, where no request is 'made to give the whole charge in writing, and where the comments added' are. pertinent and correct.”' Moughon, v. State, 57 Ga. 102 (10). As the comments added were “pertinent and correct,” the court did not err in thus supplementing the 'written request to charge. They were “pertinent and correct,” for there was evidence that the defendants not only shot the hogs and cut off their ears, but that hogs fitting the description of those stolen were hauled by them late in the afternoon following the morning on which the hogs were alleged to have been shot. This evidence, if true, made out a complete case against the defendants, and the jury had the right to believe it. But without this evidence as to the hauling of the hogs and the carrying of them to the home' of the mother of Ennis, the evidence as to the shooting and killing of the hogs and the cutting off of their ears, and the running away of the defendants when discovered, under the rulings of our Supreme Court, was sufficient to authorize the judge to make the addition to the charge, of which complaint is made. The first headnote in Gross v. State, 64 Ga. 443, is as follows: “Evidence to the effect that a hog was' heard to squeal, that the witness ran to him, that defendant ran off from him, that the hog was dead, being knocked in the head, is enough to show the taking and carrying away with intent to steal. Lundy v. State, 60 Ga. 143; Williams v. State, Ib. 367 [27 Am. B. 412].” See also Smith v. Slate, 15 Ga. App. 403 (83 S. E. 437); Johnson v. State, 9 Ga. App. 411 (71 S. E. 507). The facts in the instant case, as to the shooting of the hogs, are very much like those in the case of Tinker v. State, 125 Ga. 743 (54 S. E. 662), where a verdict of guilty of an attempt to commit larceny was allowed to standi If there is a conflict between the decisions in the Cross ease and the Tinker case, the former is the older, and we must follow it.

Our Supreme Court has said: “This court has always recognized that the. greatest weight and consideration should be paid to the verdicts of juries, and in many cases has held that while the verdict was different from what the judges would have rendered.as men, the court would not interfere. So, too, where the evidence was conflicting, it would not .disturb the finding, although it might think that the preponderance was in favor of the losing party. In testing the sufficiency of evidence this court can not consider the credibility of witnesses, that being a matter-exclusively for the jury, who note their manner of testifying, and consider the thousand and one things transpiring during a trial, which cannot be photographed or transcribed and transmitted to this court as a part of the record.” Patton v. State, 117 Ga. 234 (43 S. E. 534). “When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but whenever there is any evidence, however slight, to support a verdict which has been'approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732). See Bradham v. Slate, 21 Ga. App. 510 (94 S.E. 618), and cases cited.

Applying the above rulings to the facts in this ease, the judgment overruling the motion for a new trial must be

Affirmed.

Broyles, P. J., and Stephens, J., concur.


text:
    10192.
    THOMPSON v. THE STATE.
    Decided January 9, 1919.
    The evidence being insufficient to support the verdict, it is contrary to law-, and the court below erred in overruling the motion íor a new trial. '
    Indictment for larceny after trust; from Whitfield superior court—Judge Tarver. June 29,-1918.
    W. E. Mann, W. Gordon Mann, for plaintiff in error.

      Joseph M. Lang, solicitor-general, contra.
   Stephens, J.

The plaintiff in error, Thompson, was indicted in Whitfield superior court for the offense of larceny after trust. The indictment alleged that the defendant, Thompson, was entrusted by C. L. King with certain merchandise described in the indictment, “for the purpose of selling said merchandise,” the proceeds of said sale to be paid over to C. L. King, the owner thereof, and that the said Thompson did then and there wrongfully and fraudulently convert said merchandise to his own use, and did appropriate the proceeds of said merchandise to his own use without the consent of said 0. L. King, etc. The evidence upon which the conviction was obtained was as follows: The sole witness for the State, 0. L. King, the prosecutor, testified that Charley Thompson, the defendant, “bought” a bill of goods from him, to the amount of $39.28, and was "to pay” for them “some every week;” that the defendant made three or four payments of five or six dollars each, as shown by certain bills exhibited to the witness, and that the defendant was to sell the goods for whatever he could make on them after paying the prosecutor the cost. The State introduced certain' bills or statements showing an account between the prosecutor and • the defendant, running for several months, some of them marked paid and some bearing credits by the payment of money. The defendant made a statement in which he stated that he operated a store and had been trading with, and buying goods from, the prosecutor for a number- of years, on a running account, and-was to pay the prosecutor for the goods as much .as he could every two weeks. This he did until ho became financially embarrassed. The evidence for the State and the statement of the defendant are in perfect harmony. It is undisputedly shown that a running account had existed between the prosecutor and the defendant for some time, and that the defendant, along at different times, made payments on this account. The evidence utterly fails to make out a case of larceny after trust, and this court will not allow a conviction upon such evidence to stand.

Judgment reversed.

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


author: Luke, J.

text:
    9499.
    Frey v. Thompson et al.

    Decided October 16, 1918.
    Rehearing denied January 14, 1919.
    Action for damages; from Cobb superior court—Judge Patterson. December 22, 1916.

      Mozley & Gann, H. B. Moss, B. T. Frey, for plaintiff in error. J. Z. Foster, contra.
   Luke, J.

1. The real issue in this case is as to the proper location of a land line. There was evidence pro and eon, the jury found in favor of the defendant, there was evidence to authorize this finding, and the verdict has the approval of the trial judge. Osteen v. Wynn, 131 Qa. 209 (02 S. E. 37, 127 Am. St. R. 212).

2. The charge of the court, when considered as a whole, was full, fair, and not subject to the criticisms offered. The court did not, for any - of the reasons assigned, err in overruling the motion for a new trial.

Judgment affirmed.

Wade, C. J., mid Jenkins, J., concur.


text:
    9531.
    Farmers Supply Company v. Smith.
    Decided October 16, 1918.
    Rehearing denied January 14, 1919.
    Complaint; from city court of Yaldosta—Judge Cranford. January 18, 1918.

      John J. Murry, E. K. Wilcox, for plaintiff.

      John P. Knight, Dan R. Bruce, for defendant.
   Luke, J.

1. A conveyance of realty in the form of an absolute fee-simple deed can be shown by parol evidence to be only a security deed, where the grantor, after making the deed', retains possession of the realty conveyed. Askew v. Thompson, 129 Ga. 325 (58 S. E. 854); Spencer v. Schuman, 132 Ga. 515 (64 S. E. 466). See also Pusser v. Thompson, 132 Ga. 280-284 (64 S. E. 75, 22 L. R. A. (N. S.) 571.

2. The charge of the court fully and fairly presented the issues to the jury. For none of the reasons assigned did the judge err in charging the jury.

3. The evidence authorized the verdict, which has the approval of the trial judge. It was not error to overrule the motion for a new trial.

Judgment affirmed.

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


author: Jenkins, J.

text:
    9278.
    Mattox v. Board of Education of Liberty County.
    Decided January 14, 1919.
    Complaint; from Liberty superior court—Judge Sheppard. September 19, 1917.

      H. H. Elders, for plaintiff.

      W. B. Stubbs, Parker & Parker, for defendant.
   Jenkins, J.

In accordance with the answers, made by the Supreme Court to the questions certified to it in this ease (148 Ga. 577, 97 S. E. 532), the ruling of the court below, sustaining the demurrer to the plaintiff’s petition, is affirmed.

Judgment affirmed.

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


text:
    9546.
    Charleston & Western Carolina Railway Company v. Hart.
   Luke, J.

The evidence in this case does not show that the injury alleged to have been sustained by the plaintiff was more than mental anguish and physical pain unaccompanied by physical injury to the person.Her inconvenience and physical illness were not a natural or reasonable consequence of the defendant’s alleged tort, nor could the defendant have anticipated that such a consequence would naturally or reasonably flow therefrom. The court erred in overruling the defendant’s motion for a new trial. See Western Union Tel. Co. v. Knight, 16 Ga. App. 203 (84 S. E. 986) ; Goddard v. Waters, 14 Ga. App. 722 (82 S. E. 304) ; Southern Railway Co. v. Jackson, 146 Ga. 243 (2) (91 S. E. 28), and cases cited.

Decided January 14, 1919.

Action for damages; from city court of Richmond county— Judge Black. February 7, 1918.

Mrs. Hart obtained a verdict for $200 in an action against the railway company for damages on account of alleged negligence of the conductor of a train on which she was a passenger, to whom she gave her ticket for transportation to Parksville, telling him that she was going to that place, and who (according to her testimony), on being asked by her at a certain station at which she had started to leave the train, “Is this the town?” replied, “This is the place;” thus causing her to leave the train at that station, when Parksville was eight miles beyond that point. She testified that she had an appointment at Parksville on that day to collect certain accounts for her employer, and, after leaving the train, had to hire a buggy, at an expense of $4, to take her to Parksville, in order to keep her appointment. In her petition it is alleged, that on account of her exposure to rain and sleet on her trip in the buggy “her health has been seriously and permanently damaged, and that her nervous system has been seriously and permanently impaired;

. . . her throat and lungs have been seriously and jiermanently impaired; that she suffered great pain immediately after said exposure, and continues to suffer pain from the same;” and that she was put to an expense of $38 for medical treatment, and $15 for medicine. Her damages were laid at $1,950.

The trial judge excluded the plaintiff’s testimony as to injury from cold, neuralgia, and throat trouble, resulting from exposure on her trip in the buggy, but allowed her- to testify, as to her' feelings and condition after the train had gone and she had discovered that she was not at Parksville, but was in the depot at Clark’s Hill: “I felt very much disconcerted, of course, at my condition. I was shocked and distressed by my plight. I was very nervous, of course. I felt that I had to get away, because my position depended upon making these collections.” (In answer to the question: “What effect, if any, did the distress and shock that you have testified to have received when you discovered your .plight have upon your nervous system?”) “I suffered a severe breakdown, from which I have never recovered. . . It has been permanent. . . Just a little bit of excitement tears me to pieces, is all I can tell you. A little excitement makes me hysterical. . That is continuous.” (In answer to the question: “Has it had any effect on your heart or. otherwise?”) “Yes. I suffered heart trouble from which I still suffer. . . I suffered with my nerves, severe nervous trouble,—getting off the train, being put off the train and alighting at the wrong station, through mistake.” A physician testified, in behalf of the defendant, that he did not know “any way by which simply a mental disturbance, . . from getting off the train at the wrong station, could produce any physical disability of any sort. . . You don’t" get physical diseases from an ordinary nervous shock or disappointment.”

Judgment reversed.

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

In the motion for a new trial it is alleged that the verdict was contrary to law and the evidence, and was excessive; that the court erred in admitting the plaintiff’s testimony as to her nervous condition and her “heart trouble,” over the objections of the defendant; and that the court erred in certain instructions to the jury.

William K. Miller, for plaintiff in error.

John J. Jones, Oswell R. Eve, contra.


author: Wade, C. J.

text:
    9547.
    CHICKAMAUGA MANUFACTURING COMPANY v. AUGUSTA GROCERY COMPANY.
    Decided January 14, 1919.
    No binding contract for the manufacture and delivery of the goods specified in the defendant’s order to the plaintiff is shown by the petition. Acceptance of the order in full is not shown by the allegation that the defendant “ordered out” a certain part of the goods “during the time specified in said order.” The court did not err in sustaining the demurrer and dismissing the petition.
    Action on contract; from city court of Richmond county— Judge Black. February 8, 1918.
    The petition alleges: “2d. That on the 12th day of March, 1912; defendant purchased of your petitioner 250 gross of Honest John Bluing at $2.75 per gross net, less the freight, to be delivered at Augusta, Georgia, by a written order, a copy of which said order is hereto attached. . . [The attached order is for goods of the quantity and price named, "to be used as ordered within 12 mos. from date. . . 25 gross now.”] 3d. That said 250 gross of Honest John Bluing were to be manufactured by plaintiff and put up under their particular brand in a special package for defendant, in accordance with defendant’s instructions. 4th. That your petitioner was at all times prepared to deliver said 250 gross of Honest John Bluing to defendant at Augusta, Georgia, under the terms of said contract, at any time during the twelve months between the 12th day of March, 1912, and the 12th day of March, 1913. 5th. That defendant ordered out 45 gross of said 250 gross of bluing during the time specified in said written order, but refused to accept the remainder of said contract of 205 gross. 6th. That notwithstanding your petitioner had fully, complied with the terms of the contract and stood ready and prepared to deliver said bluing under and in accordance with the terms and conditions of said order, defendant, without lawful warrant or authority, refused to accept the same, and notified your petitioner that it would not accept the 205 gross of Honest John Bluing. 7th. That your petitioner has been damaged in the sum of $194.75 by defendant’s breaching its contract, in that the actual cost of manufacturing, crating, and delivering said 205 gross of bluing at Augusta was $1.80 per gross, leaving a. net profit to your petitioner of 95 cents per gross on 205 gross. Wherefore your petitioner prays judgment for $194.75, and that process issue,” etc.
    The defendant demurred on the grounds: (1) No cause of' action is stated. (2) The alleged contract is without consideration. (3) The alleged order appears not to have been accepted. (4) The alleged order is unilateral, wanting in mutuality, and not binding on the plaintiff, and consequently not binding on the defendant. (5) There are no sufficient allegations on which to base the alleged claim for damages. (6) The allegations do not show that the plaintiff is entitled to recover damages; and if any wrong was committed, it was without damage.
    P. C. O’Gorman, Charles G. Reynolds, for plaintiff, cited: (On ground 1 of the demurrer) Oklahoma Vinegar Co. v. Ford, 116 Ga. 140; Linder v. Cole Brothers Co., 10 Ga. App. 102; Levy v. Bixler Co., 20 Ga. App. 766; Rounsaville v. Leonard Mfg Co., 127 Ga. 735; Civil Code (1910), §§ 4246, 4242. (On grounds 3 and 4 of the demurrer ) Civil Code, § 3222, par. 7; Columbus Crate Co. v. Evans, 130 Ga. 432; Maine v. Howell, 7 Ga. App. 311; 2 Elliott, Contracts, §§ 1332, 1319-20; Damon v. Osborn, 1 Pick. 476 (11 Am. Dec. 227); Garfield v. Adams, 96 D. S. 557; Gault v. Brown, 48 N. H. 183 (2 Am. B. 210); Towne v. Davis, 22.Atl. 450; Theilen v. Both, 50 N. W. 183; Gabriel v. Kildare Elevator Co., 10 L. R. A. (N. S.) 638; Linton v. Williams, 25 Ga. 391, 394; 1 Gr. Ev., § 268; Trigg Candy Co. v. Emmett Shaw Co.. 9 Ga. App. 358; Luke v. Livingston, 9 Ga. App. 116; Capital City Brick Co. v. Atlantic Ice & Coal Co., 5 Ga. App. 436; Groover v. Warfield,, 50 Ga. 645, 654; Justice v. Lang, 42 N. Y. 493 (1 Am. R. 576); Le Vine v. Whitehouse, 37 Utah, 260 (Ann. Cas. 1912C, 407); Smith v. Jones, 66 Ga. 338; Wemple v. Knopp, 15 Minn. 440 (2 Am. R. 147); Re Neff, 157 Fed. 57 (28 L. R. A. (N. S.) 349; Hodges v. Kowing, 7 L. R. A. 87; Lee v. Vaughn Seed Store, 141 S. W. 496 (37 L. R. A. (N. S.) 352; Flegel v. Dowling, 54 Oreg. 40 (19 A. & E. Ann. Cas. 1159, 2 L. R. A, (N. S.) 221; Ulsperger v. Meyer, 217 Ill. 262 (3 A. & E. Ann. Cas. 1032, and note, 1036); Bailey v. Leishman, 32 Utah, 123 (13 A. & E. Ann. Cas. 116, and note); Wharton v. Tolbert, 65 S. E. 1056; Beckwith v. Clark, 188 Fed. 171; Crutchfield v. Donathon, 49 Tex. 691 (30 Am. R. 112); Mizell v. Burnett, 69 Am. D. 744; Old Colony R. Corp. v. Evans, 60 Am. Dec. 394; 35 Cyc. 52, par. 3, 58, par. 6; Strickland v. Jelks, 18 Ga. App. 86; Harris v. Amoskeag Lumber Co., 97 Ga. 465 (4); Phillips v. Ocmulgee Mills, 55 Ga. 634 (4); 9 Cyc. 257, 260; Draper v. Macon Dry Goods Co., 103 Ga. 661; Bluthenthal v. Moore, 106 Ga. 424 (2); Anderson v. Hilton & Dodge Co., 121 Ga. 688; Georgia Engineering &c. Co. v. Horton, 135 Ga. 58 (1), and cit.; Freeman v. Matthews, 6 Ga. App. 164; Ansley v. Hightower, 120 Ga. 719 (3); Allen v. Powell, 125 Ga. 438 (1); Crovatt v. Baker, 130 Ga. 507. (On ground 5 of the demurrer) Carolina Portland Cement Co. v. Columbia Improvement Co., 3 Ga. App. 483; Cen. Ry. Co. v. Cooper, 14 Ga. App. 738, 740; United Roofing Co. v. Albany Mill Supply Co., 18 Ga. App. 184; 35 Cyc. 594-5, par. 2, 596.. (On ground 6 of the demurrer) . Gabriel v. Kildare Elevator Co., 10 L. R. A. (N. S.) 638. (In reply brief, as to acceptance 35 Cyc. 52, 58; 6 R. C. L. 605, 686-7; 13 C. J. 339; Brown v. Bowman, 119 Ga. 153; Robson v. Weil, 142 Ga. 429, and cit.

      Callaway & Howard, for defendant, cited cases cited in the following opinion, and Simpson v. Sanders, 130 Ga. 365; Oliver Construction Co. v. Reeder, 7 Ga. App. 376; Cooley v. Moss, 133 Ga. 707; Mallet v. Watkins, 133 Ga. 700 (1); Glessner v. Longley, 135 Ga. 676 (4); Civil Code (1910), §§ 4346, 4330, 4341, 4317; 13 Corpus Juris, 339-40-41.
   Wade, C. J.

This suit was for damages on account of a breach of an alleged contract. The defendant signed an order, directed to - the plaintiff, for 350 gross of a certain commodity therein described, to be delivered by freight and “to be used as ordered within 13 mos. from date.” The petition alleges that tins commodity was to be manufactured by the plaintiff “and put up under their particular brand in a special package for the defendant, in accordance with defendant’s instructions,” and that the plaintiff “was at all times prepared to deliver said 350 gross of Honest John Bluing to defendant at Augusta, Georgia, under the terms of said contract, at any time during the 13 months between the 13th day of March, 1913 [the date of the order], and the 13th day of March, 1913.” It is not, however, expressly alleged that this order was accepted by the plaintiff, either orally or in writing, or that the goods were ever manufactured in accordance with the terms of the-order, or were ever tendered or delivered by the plaintiff; and it does not appear that the plaintiff ever expressly -bound itself to manufacture and deliver the total quantity of 350 gross of the commodity ordered, in exact conformity with all the terms of the 'order as to price, time of shipment, etc. The unaccepted order -did not itself constitute a valid contract, as it was wanting in mutuality until accepted, orally or in writing, or by the conduct of the parties, so as to bind both the prospective vendor and the vendee.

It is alleged that the “defendant ordered out 45 gross of said 350 gross of bluing during the time specified in said order, but refused to accept the remainder 'of said contract of 305 gross,” and “notified your petitioner that it would not accept the 305 gross of Honest John Bluing.” The statute of frauds was not involved in this case, and shipment of some of the commodity specified in the order, before the defendant directed that no further shipments be made, would not amount to such an acceptance of the entire order as would legally bind the plaintiff to ship the remainder of the quantity therein specified and at the price, etc., therein named, it not even being alleged that the plaintiff advised the defendant or indicated to it in any manner, at the time this particular shipment was made or before the order for the remainder of the commodity was revoked, that the shipment was so made under the terms of the order. The shipment of some of the commodity ordered, without reference to its terms, could not of itself convert the mere order into a valid and binding mutual agreement between the parties. See, in this connection, Morrow v. Southern Express Co., 101 Ga. 810 (28 S. E. 998); Waycross R. Co. v. Southern Pine Co., 115 Ga. 7 (41 S. E. 271); McCaw Mfg. Co. v. Felder, 115 Ga. 408, 411 (41 S. E. 664); Harrison v. Wilson Lumber Co., 119 Ga. 6 (45 S. E. 730); Sivell v. Hogan, 119 Ga. 167 (46 S. E. 67); Seaboard Air-Line Ry. v. Harris, 121 Ga. 707 (49 S. E. 703); Swindell v. First Nat. Bank, 121 Ga. 714 (49 S. E. 673); Simpson v. Sanders, 130 Ga. 265 (60 S. E. 541); Denton v. Butler, 7 Ga. App. 267 (66 S. E. 810); Trigg Candy Co. v. Emmett Shaw Co., 9 Ga. App. 358 (71 S. E. 679); Martin v. Cox, 13 Ga. App. 236 (79 S. E. 39); Haynes Auto Co. v. Turner, 18 Ga. App. 22 (88 S. E. 717).

The court did not err in sustaining the demurrer to the plaintiff's petition.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9571, 9591.
    Park, receiver, v. First National Bank or Blakely et al.; and vice versa.

   Jenkins, J.

1. The evidence in this case is substantially the same as that submitted at the former trial, with the exception that on the second trial the defendant introduced its agent and its attorney, who gave testimony in its behalf. Upon the former trial a verdict was directed in favor of the plaintiff receiver. Upon the second trial the jury rendered a. verdict in favor of the defendants, First National Bank of Blakely, nominal party, and the Birmingham Fertilizer Company. Upon the former writ of error it was held by this court, as the law of the case, that before the plaintiff could regain possession of the collateral notes which the bank had hypothecated with the defendant Birmingham Fertilizer Company, in order to secure its previously issued cashier’s check, it was incumbent on the plaintiff to show that the bank, of which the plaintiff is now the receiver, had made the transfer of the collateral notes at a time when it was insolvent, or that the assignment was made in contemplation of insolvency, and that it was mad'e with intent to create a preference, and also that the Birmingham Fertilizer Company was not an innocent purchaser for value, without notice or knowledge of the hank’s condition. First National Barilo of Blakely v. Park, 20 Ga. App. 42 (92 S. E. 350). The effect of this ruling was to eliminate the other contentions now relied upon by the plaintiff receiver, relating to the illegality and invalidity of the cashier’s check, 'and the invalidity of the subsequent collateral assignment, other- than for the causes named. Without going into a separate discussion of each of the thirty-six special assignments of error set forth in the amended motion for a new trial, twenty-two of which relate to the court’s refusal to charge as requested, and eight to certain portions of the charge as made, it can he generally stated that the special assignments not herein specifically referred to are thought' and' held to be without merit, for the reason that they do not take into account the law of this particular case as it was' settled and determined by the previous ruling referred to.

2. The 27th and 28th grounds of the motion, relating to the exclusion and admission of testimony, are without substantial merit. The print ciples embodied, in the requests to charge, as set forth in grounds 22 to 2'6 inclusive, were sufficiently covered by the general instructions. This applies also to. the failure' to charge as complained of in the 39th ground.

3. The record shows that the cashier’s cheek was issued to the defendant, Birmingham Fertilizer Company, by the Bank of Blakely on May 1, 1915, and that the collateral notes which were assigned to secure it, and for the recovery of which this suit was brought by the bank’s receiver, were subsequently hypothecated with defendant on May 13. The .Bank of Blakely went into the hands of a receiver on June 7, 1915. Grounds 32, 33, 34, 37, and 38 of the motion for a new trial assign error upon the court’s instruction to the effect that before a recovery could be had, it was necessary for the plaintiff receiver to show that the Bank of Blakely was insolvent at the time the cashier’s check was issued. This instruction not being in harmony with the law of the case as laid! down in the previous ruling, the grant of a new trial is necessitated. The issue as to insolvency relates to whether or not the bank was insolvent at the time the collateral securities were hypothecated, and whether or not such assignment was then made in contemplation of insolvency.

4. The excerpts from the charge complained of by the defendants in error in the cross-bill of exceptions were not erroneous. The definition of “insolvency” as given by the judge in his charge, to the effect that the insolvency of a bank means the inability of the bank to meet its current obligations in the ordinary course of business, in the ordinary course of banking, was a proper one to be given in a civil proceeding such as the instant case. Clarke v. Ingram, 107 Ga. 565, 582 (33 S. E. 802). In a criminal proceeding a stricter rule might obtain. Griffin v. State, 142 Ga. 636, 646 (83 S. E. 540, L. R. A. 1915C, 710, Ann. Cas. 1916C, 80). The requests to charge set forth in the cross-bill of exceptions, so far as legal and pertinent, were substantially-covered in the general instructions given by the court.

Decided January 14, 1919.

Trover; from city court of Blakely—Judge Sheffield. February 19, 1918.

Glessner & Collins, for plaintiff.

Yeomans & Wilkinson, L. M. Rambo, for defendant.

Judgment reversed on main bill of exceptionsj affirmed on cross-bill.

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


text:
    9574.
    WESTERN UNION TELEGRAPH CO. et al v. OWENS.
    Decided January 14, 1919.
    Rehearing denied January 28, 1919.
    1. The meritorious special demurrers to the petition were sufficiently cured by amendment, and the petition as amended was not subject to the general demurrers interposed by the three defendants. There was no misjoinder of parties, under the allegations made.
    2. The evidence disclosed liability on the part of the Georgia Northern Railway Company and the Western Union Telegraph Company, but failed to fix liability against the Southern Bell Telephone and Telegraph Company.
    3. There was no harmful error in the failure of the court to instruct the jury that' they might find one or-more or all of the defendants liable.
    4. Whether or not the defendant failed to exercise ordinary care was a question for determination by the jury.
    5. Where a series of propositions are presented en bloc in a single request to charge, the court is not required to give them or any part of them, if any one of them is erroneous or inapplicable to the case on trial.
    6. The court erred in overruling the motion for a new trial made by the Southern Bell Telephone and Telegraph Company, but the judgments overruling the motions for a hew trial made by the Georgia Northern Railway Company and the Western Union Telegraph Company are affirmed. - ’ -
    Action for damages; from city court of Thomasville—Judge W. H. Hammond. January 28, 1918.

      Bennet & Harrell, Watters & Redfearn, Theodore Titus, Merrill & Grantham, for plaintiff in error.

      Branch & Snow, H. J. MacIntyre, contra.
   Wade, C. J.

The plaintiff’s petition alleged that he was injured by stumbling over certain telegraph and telephone wires which had been precipitated to the ground by a violent wind, across a road in daily use by pedestrians and vehicles, because of the defective and rotten condition of the posts to which the wires were affixed, and that said posts and wires were maintained jointly by all three of the defendants named, for the 'transaction of their business, as was particularly set out, and that all of said defendants “did have and maintain” the line of posts from which were suspended the wires causing the injury; and it was further alleged that all of the defendants were negligent in that they maintained, across and over said road, telegraph and telephone wires attached to posts which were rotten and insecure, and therefore liable to fall at any time across the road, and in allowing said posts to become rotten and unsafe, and in failing to replace or repair said posts, notwithstanding the defendants had long known of their insecure and unsafe condition, or could have had such knowledge by the exercise of ordinary care. Under the allegations made, there was no misjoinder of parties. The petition as amended was not subject to the general demurrers or to the various special demurrers separately interposed by the three defendants.

Upon the trial the evidence .disclosed that the Georgia Northern Eailway Company originally constructed a telegraph line along its right of way, which it thereafter sold absolutely to the Western Union Telegraph Company, making at the time a separate contract •with said telegraph company that in consideration of the setting apart for the exclusive use of the railway company of one of the wires attached to the posts of the system, said railway company would “furnish at its own expense all the labor to maintain the telegraph company’s line of poles and wires along the railway company’s railroad. . . in good order and repair, and to reconstruct said lino of poles and wires when required by the telegraph company;” all poles, wires, insulation, and other material for such repairs and reconstruction to be furnished by the telegraph company. It was further shown that the Southern Bell Telephone and Telegraph Company purchased from the telegraph company, at an agreed price per annum, the privilege of attaching to said posts two lines of wire, which were to be exclusively owned, used, and maintained by said telephone company, but the evidence nowhere discloses which particular wires so attached to the posts of the telegraph company were the property of the telephone company, or which one of the two wires which belonged to .the telegraph eom- . pan-y was allotted to the use of the railroad company; nor did it appear which particular wire or wires caused the plaintiff to stumble, fall, and suffer the injuries sued for.

. (a)' The telegraph company being the owner of the poles, the defective condition of which was the direct cause of the injury complained, of, was liable therefor, and this regardless of what particular wires, attached to its poles by its consent, actually produced the injury. The fact that said telegraph company had employed the railway company to repair and maintain the posts and wires belonging to said telegraph company could not in anywise relieve the owner of the posts from liability to third persons because of the failure of its 'servants or employees to carry out and perform the contract and repair, and the court did'not err in declining to allow the amendment setting up the said maintenance contract as a matter of defense. Incidentally, it appears that this contract provided that the line of poles and wires should be reconstructed by the railway company only “when required” by the telegraph company, and there was no proof that any such requirement had ever been made.

(6) The railway company parted absolutely with the title to the wires and poles of the telegraph system, and its failure to maintain them in safe condition, in accordance with its- contract with the telegraph company, did not, therefore, render it primarily liable to third persons, suffering injury resulting from its breach of contract with the telegraph company. Nevertheless it must be inferred from the evidence (and it is conceded in the brief for the railway company) that the posts of the telegraph system, though owned, since the sale to the telegraph company on December 12, 1899, by the last-named company, were' allowed and permitted by the railway company to remain upon its right of way, in a rotten and unsafe condition, with potentially dangerous wires attached thereto, crossing over a public way. Hence said railway company was liable for any injuries directly resulting to passers along said road, from contact with said wires, where such persons were at the time in the exercise of proper care, not because of any omission to perform its duty to maintain the wires and posts under its contract with the ' telegraph company, but for wrong-doing in permitting the_dangerous instrumentality to exist on its property. The decision in Southern Railway Co. v. Sewell, 18 Ga. App. 544, 552, 553 (90 S. E. 94), in so far as it relates to misfeasance and nonfeasance, is not opposed to this ruling.

(c) The telephone company, though having no title to the posts on which its wires were strung, nevertheless strung such wires over and across a public highway, where people constantly passed, and where injury to them was liable to result unless, in the exercise of proper diligence towards the public, the wires were safely attached to sound and stable posts or other objects on either side of such highway, and consequently liability attached to’ said company for any injuries resulting to a traveler on said highway, brought about by contact with its particular and individual wires. The telephone company would not, however, be liable for injuries resulting from the defective and rotten condition of the posts to which its lines were attached, by the consent of the actual owner of the posts, unless it was made to appear that the injuries were caused by its particular wires. If the wires of the telephone company did not in fact injure the plaintiff, it was of course immaterial whether they were attached to stable or unstable supports, . or whether the supports fell or remained standing, so far as the creation of any liability against that company, was concerned.- The evidence failed altogether to indicate or even in anywise to suggest which of the four wires attached to the rotten posts were the property of the telephone company, and there was no testimony from which it could be definitely inferred that the plaintiff stumbled against or came in contact with either or both of the wires of the telephone company .in such a way as to produce or contribute to the injuries complained of, and- hence the verdict as against the telephone company was unauthorized by the proof, as no injury was shown to have resulted from its negligence in properly supporting its wires.

Under the foregoing rulings the telegraph and railway companies were both liable for any injuries to travelers on the -highway, shown to. have resulted from the rotten and defective posts actually owned by the one company, and permitted by the other to remain on its right of way, to which the wires inflicting the injury were attached, and, the jury having found that the plaintiff was entitled to compensation for such injuries, no harm resulted to either of these defendants from the failure of the court to instruct the jury that a joint or several verdict might be returned—or a verdict against one or more of the three defendants or in favor of the remaining one or more. Likewise, it is unnecessary to consider the several grounds of the motion for a new trial made by the telephone company which are based upon the failure of the court to submit various contentions of that defendant, a new trial being granted to the last-named, company because the evidence was insufficient to show that it was liable.

Whether or not the plaintiff failed to exercise ordinary care and diligence in running along a well-rknown road in the dark, with his hat partially over his eyes to protect them from the sand and trash carried by the high wind prevailing 'at the time, notwithstanding the degree of knowledge possessed by him as to the defective condition of one of the poles adjacent to the road, was a matter for the jury, and this court cannot arbitrarily usurp their province.

It is not error to refuse a request to give in charge to the jury a series of propositions presented en bloc, where any one of the propositions is unsound, notwithstanding the various propositions included in the one request are stated in separate paragraphs, more or less disconnected. In this case, among the propositions presented in the one request, was the following: “I charge you further, that before the plaintiff is entitled to recover any amount in this case of the defendant, you must believe from the evidence that the plaintiff was free from fault.” This was not a’ correct statement of the law, and the court properly refused to comply with the request as presented. The legal principles embodied in the request which were applicable were'in fact submitted to the jury. See, in this connection, Thompson v. O’Connor, 115 Ga. 120 (5), 123 (41 S. E. 242); Wallis v. Heard, 16 Ga. App. 802, 803 (86 S. E. 391); Shippey v. Owens, 17 Ga. App. 127 (3) (86 S. E. 407); Woodard v. State, 18 Ga. App. 59 (2) (88 S. E. 825); Conley v. State, 21 Ga. App. 135 (6) (94 S. E. 261). In Thompson v. O’Connor, supra, the request to charge not only comprehended various propositions of law presented in separate paragraphs, but the paragraphs were identified as “ (a) ”, “ (b) ”, “ (c) ”, etc. In Shippey v. Owens, supra, the request held to be an en bloc request was introduced with the words: “The court is requested to charge,” and following this appeared five different propositions, numbered 1, 2, 3, 4, and 5. In the ease under consideration, not only does the presiding judge, in approving the -grounds of the amendment to the motion for a new trial presented by the defendant that preferred the request whieh was refused, certify that the several propositions included in the one request to charge “were not preferred separately, but were embodied in a single request,” one of which was not the law, but the request itself, which appears in the bill of exceptions as an exhibit, is headed: “Bequest to charge made by Bennett and Harrell, attorneys of record for the Western Union Telegraph Company,” and each of the 14- paragraphs following commences “I charge you further,” except one which commences, “You will determine,” etc. Clearly this was, under the rulings cited, an en bloc request, and not a number of separate requests; and one, if not more, being erroneous, the court did not err in declining to comply with the request as preferred.

The evidence authorized the verdict returned against the Georgia Northern Railway Company aüid the Western Union Telegraph Company, and the judgment overruling their motions for a new trial is affirmed. But as the evidence does not authorize a recovery against the Southern Bell Telephone .and Telegraph Company, the judgment overruling its motion for a new trial is reversed. See, in this connection, Austin v. Appling, 88 Ga. 54 (6) (13 S. E. 955); Bonner v. Standard Oil Co., 22 Ga. App. 532 (96 S. E. 573).

Judgment reversed in part, and affirmed in part.

Jenlcins and Lulce, JJ., concur.


text:
    9602.
    WHITES v. STATE OF GEORGIA.
    Decided January 14, 1919.
    In a statutory proceeding to condemn or confiscate a vehicle employed in the illegal transportation of liquor contrary to the provisions of section 20 of the act of 1917 (Ga. L. Ex. Sess. 1917, p. 16), where the owner of the vehicle had previously sold it to the party engaged in the illegal transaction, but reserved title to it until full payment of the purchase-price, part of which purchase-price was represented by a retention-of-title note duly recorded, and the remainder of which was by agreement to be covered by a similar note in case the vendee failed to pay the remainder on or before a date -specified, and where the evidence disclosed that the vendors were wholly without knowledge of the illegal intent or acts of the vendee, and the property was seized in behalf of the State before the agreed time when the second note reserving title was to be executed in the event that the amount to be covered thereby had not been previously paid', the owner would be entitled to the fuH amount of the purchase-money due, as might appear from the evidence, including both the amount covered by the note actually given and the note agreed to be given.

      Condemnation under liquor law; from city court of Dublin— Judge Flynt. February 16, 1918.

      Burch & Daley, J. B. Green, for plaintiffs iii error.

      S. P. New, solicilor, contra.
   Wade, C. J.

This case arose under the act of 1917 (Ga. L. Ex. Sess. 1917, § 20, p. 16), which provides that “All vehicles and conveyances of every kind and description which are used on any of the public roads or private ways of this State, . . in conveying any liquors or beverages, the sale or possession of which is prohibited by law, shall be seized by any sheriff or other arresting officer, who shall report the same to the solicitor of the county, city or superior court having jurisdiction in the county where the seizure was made, whose duty it shall be within ten days from the time he received said notice to institute condemnation proceedings in said court by petition, a copy of which shall be served upon the owner or lessee if known, and if the owner or lessee is unknown notice of such proceedings shall he published once a week for two weeks in the newspaper in wdiich the sheriff’s advertisements are published. If no defense is filed within thirty days from the filing of the petition, judgment by default shall be entered by the court at chambers, otherwise the case shall proceed as other civil cases in said court. Should it appear upon the trial of the case that said vehicle, [or] conveyance, . . was so used with the knowledge of the owner or lessee, the same shall be sold by order of the court after such advertisement as the court may direct.”

The case was determined by the trial judge without the intervention of a jury, upon the following agreed statement of .facts: “1st. That V. Chavous, a policeman of the City of Dublin, Georgia, did on the 19th day of January, 1918, arrest one O. E. Beach-man and seize one automobile, described as follows: Oakland Koadster automobile #3702124, motor #10751; and that at [that] time . . the said Beachman was carrying in said automohile whisky over the highways of Laurens county and into the City of Dublin, Georgia; that the said V. Chavous made said seizure and arrest without a search warrant, State warrant, or any legal process whatever. 2d. That the said O. E. Beachman is the conditional owner of the said automobile, having purchased the same from Whites, the intervenors hereiu; that he owes the said firm the sum of $815 and interest on the purchase-price of said automobile, and executed to the Whites a note reserving the title in them until they were paid; said note being for the amount of $515 and interest. 3d. That in addition to the sum represented by the above-stated note, Beachman is due on the purchase-price of said 'automobile the sum of $300, which said sum he agreed to pay on the 21st day of January, 1918; or, in lieu of making said payment, he was to give a note reserving title to said automobile in the Whites for the principal sum of $300. 4th. That the said sums as above set forth are now due and.unpaid. 5th. That the following is a true and correct copy of the said reservation of title note given by said Beachman to the said Whites, to wit: ‘$515. . . Dublin, Ga., January 14th, 1918. . . On February 10th after date I promise to- pay “Whites,” or order, five hundred fifteen and no/100 dollars, payable as follows: $200 on Feb. 10th, 1918, $165 on March 10th, 1918, and $150 on April 10th, 1918, with interest from date at 8 per cent, per annum, interest payable annually, for one’ Oakland Boadster, #3702124, Motor #10751. The title to said property to remain in said payee, his heirs and assigns until fully paid for. If said property is lost or destroyed in any way, I am still to pay this note, and all costs and attorney’s. fees incurred in its collection, which costs and fees I hereby agree to pay. And to secure the payment of this note. . w hereby mortgage and convey unto said payee, his heirs and assigns, the following property, to wit: .... I hereby waive for myself and family all rights or benefits of homestead or exemption of personality as against this debt or any renewal thereof. Witness my hand and seal the day and year above written. [Signed] O. E. Beachman (L. S.). Witness: C. A. Shepard, Com. N. P. L. Co. Ga.—State of Georgia, -Laurens Coimty. Clerk’s Office, Superior Court. Filed for record at 8 o’clock a. m., this 23rd day of Jan’y, 1918, and recorded in Book 90, folio 684, this 25th day. of Jan’y, 1918. „E. S. Baldwin, Clerk.’ 6th. That the Whites had no knowledge of the fact that said automobile was being used as a whisky carrier by the said O. E. Beachman, neither did they know, at the time they sold said automobile to the said O. E. Beachman, that he intended to use said automobile for said purpose.' 7th. That Y. Chavous said that he would pay the Whites the amount of its written reservation title, which was refused.”

The court rendered judgment condemning the automobile that had been seized, and ordering that it be sold, and that from the proceeds of such sale the sum of $5Í5, principal' and interest, be-paid on the claim of Whites, a partnership composed of certain' named persons, which had filed the intervention claiming a total sum of $815, as purchase-money thereof. This judgment was excepted to generally, as being contrary to both law' and evidence, and more specifically upon the ground that the court was without authority to order the sale of the 'automobile without providing for the payment to Whites of not only that portion of thp purchase-price included in the retention-ottitle note of record, but the full •amount due that firm upon the purchase-price. The judgment was further specially excepted to upon the ground that the lien under the reservation-of-title note was superior to any lien which the State of Georgia might obtain by reason of the illegal use of the automobile by the vendee, O. E. Beaehman, for the full amount due on the purchase-price thereof; and that the judgment was contrary to law in that it condemned the interest of Whites in said automobile without .showing any knowledge on their part .that the automobile was to be used for any illegal purpose; and that the court was without authority to condemn the car when not in its possession, custody, or control.

It is agreed in the brief of counsel for the State that no construction of the act of 1917, supra, is necessary for the determination of this case, since under the agreed statement of facts and the assignment of errors in the bill of exceptions, but one question is really presented, and that is, should Whites have had a judgment for $515, or for $815.

In the case of Shrouder v. Sweat, 148 Ga. 378 (96 S. E. 881), the Supreme Court held: "Where an automobile was sold on credit to one who gave his note for the purchase price, securing it by a mortgage upon the car, and where subsequently, before payment of the note, the purchaser being engaged in' conveying intoxicating liquors in the car, a sheriff arrested and .took him and the car into custody, and thereupon instituted proceedings to condemn the car under the provisions of section 20 of the act of the General • Assembly of this State, passed at its extraordinary session of March, 1917, relating to prohibition of intoxicating liquors, approved March 28, 1917 (Acts of General Assembly, Extraordinary Session, March, 1917, p. 7), a -court of equity, upon a petition for injunction brought by the holder of the mortgage, who did not participate in any way in the criminal enterprise of the purchaser, should have enjoined the condemnation proceeding until provision was made for application, after the final hearing, of the funds arising from the sale of the vehicle to the lien of the mortgage.” In the decision the court said further: “We are of the opinion that the judge erred in so refusing. The condemnation proceedings should have been enjoined, and the status quo preserved until the final hearing, when a decree upon the facts as then shown could have been rendered. The petitioner was the vendor of the car, and had a valid mortgage thereon for the purchase money. He had not participated in the criminal intent of the purchaser of the car, who was in possession thereof at the time it was seized while being used for the carrying out of the criminal enterprise whereby it was subject to seizure and confiscation. The vendor, the petitioner and the holder of the valid mortgage, could not intervene ip the statutory proceeding instituted in the city court for the purpose of condemning the car and to procure an order for its sale. His only redress for the enforcement of a clear equitable right was through an equitable petition, such as he filed in this case. The mortgage had not been recorded, but that did not affect its validity. Hnrecorded mortgages remain valid, but ‘are postponed to all other liens created or obtained, or purchase made prior to the actual record of the mortgage/ • Civil Code, § 3260. The provisions of the section of the act of March 28, 1917, to which we have referred,, and under the terms of which the condemnation proceedings were instituted, is penal in its nature. We do not think it was the intention, of the legislature to divest and destroy liens held by innocent third parties. The fact that the mortgage in this case was unrecorded may be considered in connection with any other evidence, if it should be produced on the trial, tending to show that the holder of the lien participated in the criminal enterprise or intent of the purchaser of the car; and if it should be made to appear that the vendor did participate in the criminal intent and enterprise, it may then be decided whether .he had any standing in a court of equity.”

In that' case the petitioner, who applied for an injunction, held simply an unrecorded mortgage for the purchase-money of the vehicle sought to be condemned. The act of 1917 supra makes no provision for the determination in the statutory proceeding of the rights of one claiming a valid mortgage upon an automobile or other vehicle about to be confiscated and condemned; and hence, as held by the Supreme Court, in the case above referred to, the doors of a court of equity should not be closed against such holder of a valid lien; and this notwithstanding the fact that the lien was not of record. In the case under consideration, the parties filing the intervention brought themselves within the terms of the act by showing that they were the actual owners of the property sought to be condemned, and their rights could therefore be determined in that proceeding, and without resorting to equity. It appears that under the contract of sale between Whites and Beachman, $515 of the purchase-price was evidenced by a retention-of-title note describing the property sold, which was duly recorded, and that the remainder of the purchase-money, amounting to $300, was not represented by any writing whatsoever. Nevertheless, it was distinctly agreed by the vendors and vendee, at the time the automobile was purchased, that the title to the same was reserved until the full sum of $815 was paid, the agreement between them being that in the event the vendee failed to pay the sum of $300 in excess of the note for $515, actually signed, on or before the 21st day of January, 1918, the vendee should thereupon execute a further note to the vendors, reserving title in them for said additional sum. The contract of sale between Whites and' Beachman for the full amount of the purchase-price of the automobile was enforceable, so far as they were concerned, whether evidenced by any writing or not. All the conditions of the contract between the parties were in fact enforceable, except as against third parties. Civil Code (1910), § 3318.

Of course, the secret understanding between Whites and Beach-man' touching the '$300 of the purchase-price not represented by any duly-recorded retention-of-title contract could have had no binding effect upon any third person acquiring contract rights against the property without knowledge of such understanding. Here, however, the State is seeking not even to enforce a judgment already obtained, but to obtain a judgment binding property to which the party whose illegal use thereof rendered it prima facie subject to condemnation had absolutely no title whatsoever. Even had there been no written contract of any kind, but merely an oral agreement between Whites and Beachman that the title to the automobile should remain in the vendors until payment of the full purchase-price of $815 on or before a time named, 'and the vendee immediately- upon the delivery of the machine to him engaged in the transportation of liquor, contrary to law, this would furnish no reason, under the provisions of the confiscation act, why the venders, who were wholly ignorant at the time of the sale of the intention of the vendee to thus illegally use and employ their property, and who in no' wise thereafter consented to such illegal employment, should be compelled' to suffer its entire loss. In the case as made, however, the vendors actually retained title in a legally sufficient instrument, which was duly recorded, though it covered only a portion of the purchase-price.

■ The agreed statement of facts discloses that Whites had absolutely no knowledge of the illegal use of the ear or of the intention of the purchaser to employ it in any unlawful manner. Section 20 of the act of 1917, ^supra, provides that vehicles, conveyance, etc., shall be sold by order of the court in the event it appears upon the trial of the case that they were used in the manner- prohibited thereby, “with knowledge of the owner or. lessee.”

Applying the principle laid down in the Shrouder case, supra, the decisions of the Supreme Court being binding as precedents upon this court, we hold, as the retention-of-title contract between Whites and Beachman was valid and enforceable between them for the full amount of the purchase-price agreed to be paid before the title to the automobile should vest in Beachman, that Whites were entitled to all of the said agreed purchase-price, and not merely to that portion represented by the recorded note. If Whites were entitled to exact the payment to them óf the $515 portion of the purchase-price represented by the recorded note, they were equally entitled to the remaining $300 of said purchase-price due them in excess of said note, which under the terms of the contract of sale must also have been paid by Beachman before any title would vest in.him. Clearly the State occupied no better position with respect to the portion of the purchase-price not covered by any written instrument of record than a third person would occupy who had extended no credit, parted with no rights, and suffered no injury by reason of the apparent ownership by the vendee of property in fact owned by some one else.

We hold, therefore, that the court erred in rendering the judgment complained of, since, under the agreed statement of facts fixing at $815 the amount of the purchase-price, until the full payment of which title to the property was reserved in Whites, they were entitled to collect the full amount.

Judgment reversed.

Jenkins and LuKe, JJ., concur.


text:
    9603.
    WATKINS et al„ executors, v. STULB & VORHAUER.
    1. A person actually insane has no power to contract so as to bind himself or his personal representative merely by virtue of the obligation imposed by the agreement. Contracts on his behalf, in order to be binding as such, must be entered into by his guardian legally appointed after commission sued out. If one wh'o is actually insane, but who has not been legally so adjudged, proceeds to execute a contract, the agreement thus made, when taken by itself alone, while not absolutely void, becomes voidable at the option of his personal representative upon such state of insanity being shown. The mere fact that the other party to the contract was ignorant that the person with whom he was •dealing was in fact insane, or even that the existence of such insanity could not have been discovered by the exercise of ordinary and reasonable prudence, will not of itself operate to prevent the exercise of such option and privilege on the part of the personal representative. But the contract of one who was insane at the time of the agreement, but who had never been legally so adj'udged, ceases to be voidable and becomes valid' and binding whenever it is shown that the obligation has been subsequently ratified either by the words or the conduct of the contracting party himself during a lucid interval, or by virtue of what amounts to a confirmation on the part of his personal representative. Civil Code (1910), § 4237; Bunn v. Postell, 107 Ga. 490 (33 S. E. 707); Orr v. Equitable Mortgage Co., 107 Ga. 499 (33 S. E. 708) ; Weeks v. Reliance Fertiliser Co., 20 Ga. App. 498 (2) (93 S. E. 152). Even where there has been no such actual ratification of a contract thus made, but where there had been no adjudication of the fact of insanity, and the opposite party to the contract was ignorant of the other’s disability, ’ and had no reasonable cause to suspect it, and the contract was fair and reasonable in its terms, and it is shown that the contract was entered into in good faith, without fraud or undue influence, and was founded upon a valuable and adequate consideration, and that the insane party has actually received the full benefit of the contract, and the parties can not be restored to the status quo; the liability under the contract will be upheld, not so much upon the theory of enforcing the promise because of the making of the contract itself as upon the idea that the insane party ought not to enjoy the full, adequate, and irrestorablo benefit of a contract ordinarily merely voidable, without himself complying with the terms thereof. Woolley v. Gaines, 114
      Ga. 122, 124 (39 S. E. 892, 88 Am. St. R. 22); 16 Am. & Eng. Enc. Law (2d ed.) 625; Flach v. Gottschalk Co., 88 Md. 368 (41 Atl. 908, 42 L. R. A. 745) ; Memphis National Bank v. Sneed, 97 Tenn. 120 (36 S. W. 716, 34 L. R. A. 274, 56 Am. St. R. 788) ; National Metal Edge Box Co. v. Vanderveer, 85 Vt. 488 (82 Atl. 837, 42 L. R. A. (N. S.) 343, Ann. Cas. 1914D, 865).
    2. Under, the evidence submitted, it was an issue of fact whether the defendant was sane or insane at the time he entered upon the original lease, as well as whether he was sane or insane at the time of its subsequent ratification. And under the additional proof submitted and the rulings made in the first headnote, the court did not err in charging the jury as complained of in the fifth ground of the motion for a new trial, nor in refusing the written requests to charge set out in the tenth and fourteenth, grounds.
    3. In a lease contract, where there is no stipulation to the contrary, the lessor impliedly warrants that the leased premises shall be open to ' entry by the lessee at the time fixed for taking ■ possession; and while the lease takes effect upon its execution, and the right of possession and enjoyment of the leased property is a condition precedent to the right of the lessor to recover the rent, yet, before the lessee can repudiate the contract on the ground that possession was wrongfully withheld from him, he must do something to show that he desires possession. He can not remain wholly inactive in reference to possession and justly claim that he is wrongfully excluded therefrom by the lessor. The law does not impose upon the lessor the duty of putting the lessee in possession of the leased premises. It demands only that the possession shall not be withheld when the lessee seeks it under the contract. Browder-Manget Co. v. Edmondson, 7 Ga. App. 843 (68 S. . E. 453).
    4. Where in a civil case the undisputed evidence clearly establishes a particular fact, it is not error for the judge, in his charge to the jury, to assume or indicate that the fact has been proved. To do so is not a violation of section 4863 of the Civil Code of 1910. Georgia Railway & Electric Co. v. Cole, 1 Ga. App. 33 (57 S. E. 1026) ; Dexter Banking Co. v. McCook, 7 Ga. App. 436 (66 S. E. 113) ; Jones v. Wall, 22 Ga. App. 513 (96 S. E. 344).
    5 Under the rulings stated in the third .and fourth headnotes, the court did not err in charging the jury as complained of in.the fourth, siyth, and seventh ground's of the motion for a new trial, for any of the reasons therein stated; nor did the court err in refusing the written requests to charge set out in the ninth, eleventh, and twelfth grounds.'
    6. The thirteenth ground of the motion for a new trial, assigning error ■upon the alleged refusal of the written request to charge set out in that ground, is without merit, since-the principle of law stated therein was given in charge to the jury in almost the identical language of the request. The request to charge set out in the eighth ground was sufficiently covered by the charge of the coui-t.
    7. Nor did the court err in refusing the written requests to charge set out in the fifteenth to eighteenth grounds, inclusive, of the motion for a new trial, since the principles of law contained in sections 3576, 4301v 4302, and 4303 of the Civil Code (1910) are not applicable to the facts in this case.
    Decided January 14, 1919.
    8.. The evidence act does not provide that when a suit is defended by the personal representative of a deceased person, the opposite party is an incompetent witness as to independent facts, knowledge of which was not derived from transactions or communications- with the deceased. The admission of the testimony objected to in the nineteenth to twenty-fourth ground's, inclusive, of the motion for a new trial was therefore without error. Gomez v. Johnson, 106 Ga. 513, 515 (32 8. E. 600); Parker v. Salmons, 113 Ga. 1167 (39 S. E. 475) ; Hall v. Hilley, 139 Ga. 13 (76 S. E. 566) ; Nugent v. Watkins, 129 Ga. 382 (58 S. E. 888) ; Cato v. Hunt, 112 Ga. 139 (37 S. E. 183).
    10. Complaint is made because the court permitted the plaintiffs to introduce in evidence the will of the defendants’ decedent, over the objection that it was irrelevant and was not admissible to show mental capacity to contract. Held: The standard of intelligence required to constitute mental capacity to make a will and the amount of mental capacity required to make a contract are not the same, since “an incapacity to contract may coexist with a capacity to make a will.” Civil Code (1910), § 3842. But since the judge in his charge explained such distinction by giving in charge this section of the code, the admission of this evidence, if error, will be treated as harmless. See Neel v. Powell, 130 Ga. 756 (61 S. E. 729).
    11. There was sufficient evidence to support the verdict, and the court did not err in overruling the motion for a new trial.
    Complaint; from city court of Bichmond county—Judge Black. January 24, 3918.

      Sam L. Olive, J. S. Watkins, for plaintiffs in error.

      Callaway & Howard, contra.
   Jenkins, J.

Stulb & Vorhauer, plaintiffs in the court below, were the holders of a lease contract from the Glenn Springs Company, of Spartanburg, South Carolina, of the Glenn Springs Hotel property (which was a summer hotel) for the season of 1915, at a rental of $3,500. On April 1, 1915, this lease was transferred to Bryan Lawrence, by a written contract signed by the plaintiffs and by Lawrence which provided that the lease was.to begin on that date and end November 1, 1915. About May 20, 1915, J. H. Milligan, who testified that he had been requested by Bryan Lawrence, prior to April 1, to operate the hotel for him during the season of 1915, went with Watkins, attorney for Bryan Lawrence, to Glenn Springs, and went over the hotel to ascertain its condition, for the purpose of opening the hotel in June. On their return to Augusta, they notified the plaintiffs that the president of the Glenn Springs Company informed them that the company liad never consented to the transfer of the lease to Bryan Lawrence. Thereupon Vorhauer, one of the plaintiffs, and the plaintiffs’ attorney, went to Glenn Springs, and on May 26, 1915, obtained the written consent of the Glenn Springs Company for Bryan Lawrence to operate the hotel during the season of 1915, without releasing the plaintiffs from their liability to pay the rent, and on the next day copies of this written consent were delivered to Watkins, the attorney, and Milligan, the agent, of Bryan Lawrence, and about June 1, 1915, Milligan went to Glenn Springs, took charge-of the hotel as the agent of Lawrence, and opened and operated it during the summer season of 1915. On June 2, 1915, Bryan Lawrence executed a power of attorney to his son, E. L. Lawrence, empowering him to do any and all things necessary for the operation of the Glenn Springs Hotel during the season of 1915. Bryan Lawrence went to the hospital some time during the month of April, 1915, and was in the hospital most of the time until his death in March, 1916. He died testate, leaving as the executors of his will Joseph S. Watkins, his attorney, and T. J. Morrow. On’ September 27, 1915, during the lifetime of Bryan Lawrence, the plaintiffs brought suit against him to recover the rental of the hotel, whereujwn lunacy proceedings were instituted, and his son, E. L. Lawrence, was appointed as guardian, and filed a defense in this case, setting up (1) that Bryan Lawrence was insane at the time of the execution of the alleged contract, and therefore not bound by its terms; and (2) that the plaintiffs failed to deliver the hotel property to Bryan Lawrence, or his agents, at the time specified in the contract, and that this failure to so deliver said hotel relieved Bryan Lawrence of the contract, or if it' did not wholly relieve him of the contract, he was entitled to have credit for whatever damages he suffered by reason of such delayed delivery. Upon the death of Bryan Lawrence his executors were made parties defendant, and upon the trial the jury returned a verdict in favor of the plaintiffs, for the full amount siiecl for. The defendants made a motion for a new trial, which was overruled, and to this ruling the defendants excepted.

Upon the question of the plaintiffs’ rights under a 'contract where. a plea of insanity had been interposed in behalf of the defendant, the judge charged the jury in substantial accord with the principles of law set forth in the first headnote of this opinion. On each of the issues of fact as made by the evidence upon the several questions thus involved, the jury was authorized to find in favor of the plaintiffs. The rulings stated in the headnotes do not require elaboration.

Judgment affirmed.

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


text:
    9609.
    Mayer v. Walker et al.

    Decided January 14, 1919.
    Complaint; from Spalding superior court—Judge Searcy. February 9, 1918.

      Albert B. Mayer, for plaintiff, cited:

      Sheppard, v. Bridges, supra; L. & N. R. Co. v. Nelson, 145 Ga. 594; Union Realty Trust Co. v. Wright, 138 Ga. 703; Beall v. McGrady, 32 Ga. 257; Dallas v. Heard, 32 Ga. 604; Leffler Co. v. Lane, 146 Ga. 741; Pomeroy, Eq. Jur. § 1207; South Carolina Ins. Co. v. Kohn, 95 S. E. 65; Civil Code (1910), §§ 5408, 5406; Ga. R. Co. v. Tice, 124 Ga. 463; DeLacy v. Hurst, 83 Ga. 229-30; Teasley v. Bradley, 110 Ga. 505 (4).
   Jenkins, J.

This was a suit against E. W. Bingham and Mrs. Laura L. Walker upon promissory notes given by Bingham to the plaintiff for the purchase-price of certain real estate, for which the plaintiff gave to him a bond for title. It. is alleged in the-petition that Bingham subsequently sold the real estate to defend'ant Laura L. Walker, and transferred to her the bond for title, and that, as a part of the consideration of the transfer, Laura L. Walker assumed the payment of the notes given to the plaintiff. The petition. prayed for a judgment against both defendants for the amount due upon the notes, together with attorney’s fees. Bingham' filed no-defense. Laura L. Walker demurred to the petition, on the ground that “It is not, alleged that this defendant made any promise to the plaintiff, or that there was any consideration moving from the plaintiff to this defendant.” This demurrer the trial court sustained, and the plaintiff excepted. Held:

1. The writ of error in this case having been originally filed in the Supreme Court, and having been by that court transferred to this court, such action by the Supreme Court was equivalent to a holding that the plaintiff’s petition was not an equitable proceeding, but an action at • law.

2. Whatever may be the plaintiff’s rights in a proper equitable proceeding, she can not maintain the present legal remedy, by which it is sought to enforce a contract to which the plaintiff was not a party, and which was made between other and different parties. Sheppard v. Bridges, 137 Ga. 615 (74 S. E. 245); McKenzie v. McKenzie, 23. Ga. App. 27 (97 S. E. 410).

Judgment affirmed.

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

E. M. & G. F. Mitchell, for defendants, cited:

Hawkins v. Con. R. Co., 119 Ca. 160 (6); Civil Code (1910), §§ 4249, 5516; Sheppard v. Bridges, supra; Union City Realty Co. v. Wright, supra; Steed v. Savage, 115 Ga. 101; Copeland v. Cheney, 116 Ga. 687; Fowler v. Davis, 120 Ga. 445, 687; Pound v. Smith, 146 Ga. 435; McKenzie v. Flannery, 90 Ga. 597.


text:
    9612.
    Lynchburg Shoe Company v. Daniel.
    Decided January 14, 1919.
    Complaint; from city court of Morgan—W. H. Gurr, judge pro has vice. February 18, 1918.

      Erle B. Askew, J. L. Dowling, for plaintiff.

      E. L. Smith, for defendant.
   Jenkins, J.

1. As between tlie original parties, the consideration of a contract is ordinarily open to inquiry for the purpose of showing either that the consideration was originally illegal, and for this reason the promise so predicated was void, or that the consideration has subsequently failed' in whole or in part, so as no longer to support the promise as made. If such be the real purport and intent of the plea, there results no infringement of the rule which forbids the variance by parol of the expressed terms of a written instrument. It is only when a defendant, under the guise of seeking to inquire into the consideration, is in fact using such privilege merely as a pretext, for the purpose of varying the written terms of the promise itself, that the inhibition of the parol evidence, rule- becomes applicable. Rheney v. Anderson, 22 Ga. App. 417 (96 S. E. 217).

2. Thus, in a suit against a surety on a promissory note, his plea setting up that he was induced to sign the note by the false and fraudulent representations of the plaintiff’s agent that in consideration of the defendant signing as surety, the plaintiff would proceed to furnish to the principal (a mercantile business) additional goods in a named amount, which promise the plaintiff had failed and refused to perform, and which failure resulted in injury and increased the risk and hazard to defendant, was not subject to general demurrer. Marchman v. Robertson, 77 Ga. 40. What was said by this court in the case of McKee v. Hurst, 21 Ga. App. 571 (94 S. E. 886), is not in conflict with the holding here made, since that ruling was based upon the idea that the surety, in subsequently renewing the notes, waived any such defense, he being estopped by reason of his knowledge then had of the facts, or by his negligence in failing to know them.

3. There was evidence sustaining the defendant’s plea, and the judgment of the trial court, overruling the motion for a new trial, can not bo disturbed on the theory that the verdict was contrary to the evidence.

Judgment affirmed.

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


text:
    9621.
    Bank of Ball Ground v. National Surety Co.
    Decided January 14, 1919.
    Action on bond; from Cherokee superior court—Judge Morris. March 2, 1918.

      King & Spalding, for plaintiff.

      Rosser, Slaton, Phillips & Ilopldns, for defendant.
   Wade, C. J.

1. Under the express terms of the fidelity bond forming the basis of this action, liability arises provided the employer shall have given certain specified notice to the surety of “any act of personal dishonesty” of the employee within “ten (10) days after becoming aware -éf such act, or facts indicating such act, or any loss, and shall have, within ninety (90) days after the discovery of any such loss, filed with the surety an itemized statement of such loss, and produced for all investigations all books, vouchers, and evidence, in the employer’s possession,” etc.

(a) It is not sufficiently alleged in the original petition or in any of the amendments thereto that these conditions of the policy were complied ■with by the plaintiff. Nor does the petition allege any facts sufficient to constitute a legal waiver by the surety company (within time) of the aforesaid conditions, upon the performance of which only could liability arise under the terms of the contract. t

2. The trial judge d'id not err in sustaining a general demurrer to the plaintiff’s petition.

Judgment affirmed.

Jenhins and Luhe, JJ., concur.


text:
    9666.
    Jones v. Mallory Steamship Company.
   Jenkins, J.

1. It is the duty of the master to furnish to the servants in his employ safe appliances for their labor, and a reasonably safe place in which to work.

2. This latter obligation does not require him to keep the place where they are employed in a safe condition at every moment of their work, so far as its safety depends on the due performance of that work by them and their fellow-servants. Byrd v. Thompson, 146 Ga. 300 (91 S. E. 100).

3. Where proper appliances are furnished, and an injury to a servant is occasioned, not by reason of a defect therein, but on account of the negligence of fellow-servants in failing to properly use them, the master is not liable. Fraser v. Smith & Kelly Co., 136 Ga. 18 (70‘S. E. 792) ; Henderson v. Ocean Steamship Co., 15 Ga. App. 790 (84 S. E. 230).

4. There being no allegation in the petition in this case charging negligence on the part of the defendant in not inspecting the gang-plank, the failure to properly secure which caused the plaintiff’s injuries, and it appearing from the testimony of the plaintiff himself that the placing and securing of the gang-plank was one of the ordinary duties of himself and his fellow-servants, the court did not err in excluding the following question and the plaintiff’s answer thereto: Question:

Decided January 14, 1919.

Action for damages; from Glynn superior court—Judge High-smith. January 24, 1918.

Francis H. Harris, D. W. Krauss, for plaintiff.

Bennet, Twitty & Reese, for defendant.

“Whose business was it to have fixed that gang-plank?” Answer: “It was our foreman’s business to see that it was fixed right.” But conceding that the master was negligent in not seeing that the gang-plank was properly secured, the plaintiff himself having testified that he could have discovered this by merely glancing at it before he stepped upon it, the court did not err in granting a nonsuit. Ludd v. Wilkins, 118 Co. 525 (45 S. E. 429) ; Henderson v. Ocean Steamship Co., supra.

Judgment affirmed.

Wade, G. J., and Luke, J., concur.


text:
    9673.
    Davis v. City of Rome
   Jenkins, J.

1. The writ of error in this case having been originally filed in the Supreme Court, and that court having by formal order transferred it to this court, the transfer of the case is equivalent to a holding by the Supreme Court that the constitutional questions which the plaintiff in error attempts to raise by the writ are not properly made.

2. Under the ruling made by the Supreme Court in Marks v. Rome, 145 Ga. 399 (2) (89 8. E. 324), the charter for that municipality establishes a recorder’s court. Furthermore, if one in point of fact has been tried, convicted, and sentenced by the municipal authorities sitting as a recorder’s court, and the defendant, at the time of the trial, raised no objection as to the competency of the tribunal sitting as such, and entered no exception to the judgment thus rendered, he can not, in an action subsequently brought against the city for the fine paid and the value of the services rendered under the sentence imposed, and for the alleged tortious and illegal acts of the subordinate municipal officers, done while he was in their custody, collaterally attack the competency of the court rendering judgment against him. Mayor &c. of Brunswick v. Sims, 14 Ga. App. 315 (80 S. E. 730). See also Bartlett v. Columbus, 101 Ga. 300 (28 S. E. 599, 44 L. R. A. 795).

8. In so far as the petition shows, the alleged tortious acts complained of relate solely to the conduct of the city’s subordinate officials done in the performance of its governmental functions, and do not in anywise relate to any act done in connection with the corporate affairs of the municipality. For acts done in the illegal performance of purely governmental functions, however illegally the authority may be exercised, the municipality is not liable. Thus, even though the sentence imposed by the recorder might have been wholly void, and although the alleged acts of the warden might have been both tortious and illegal, the court did not err in sustaining the demurrer interposed by the defendant municipality. Attaway v. Cartersville, 68 Ga. 740; Gray v. Griffin, 111 Ga. 361, 368 (36 S. E. 792, 51 11 R. A. 131); Doster v. Atlanta, 72 Ga. 233; Hammond v. County of Richmond, Id. 188; Bartlett v. Columbus, supra; Gilmor v. Salt Lake City, 32 Utah, 180 (89 Pac. 714, 12 L. R. A. (N. S.) 537, note, 13 Ann. Cas. 1016) ; 20 Am. & Eng. Ency. Law, (2d ed.) 1193, 1194. Nor can a municipality ratify the unlawful acts of its subordinate officials- done in pursuance of its governmental functions, so as thereby to make itself liable for such acts. Caldwell v. Boone, 51 Iowa, 687 (2 N. W. 614, 33 Am. R. 154) ; Peters v. Lindsborg, 40 Kan. 654 (20 Pac. 490).

Decided January 14, 1919.

Rehearing denied January 28, 1919.

Action, for damages; from Floyd superior court—Judge Wright. January 15, 1918.

Henry Walker, for plaintiff

Max Meyerhardt, for defendant.

Judgment■ affirmed.

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


text:
    9675.
    Armour Fertilizer Works v. Dasher.
   Wade, C. J.

1. It is complained that the judge erred in not confining his

charge to the issues made by the pleadings, in that he injected into the ease an issue as to whether or not the defendant paid-the purchase-price of the fertilizer in question to one J. E. Stapler as the agent of the plaintiff, whereas the only issue between the parties, according to the pleadings, were whether the defendant purchased from Stapler as an individual, the amount and brand of fertilizer described in the petition, and whether he paid Stapler therefor—there being no plea alleging that he made any payment to Stapler as the agent of the plaintiff. Although the pleadings do not raise the issue of agency '(it being merely alleged that the fertilizer was purchased from and payment made to Stapler in his individual capacity), the charge of the court on this subject was not erroneous, in view of the defendant’s admission in open court that the fertilizer in controversy was bought from Stapler as the agent of the plaintiff corporation, and that payment therefor was made to him in that capacity. It was not incumbent upon defendant to recast his plea in this particular.

2. The complaint that the charge of the court is too indefinite to make it clear whether the defendant - admitted that he purchased the fertilizer from Stapler as agent of the plaintiff or as an individual is without merit.

3. There is no merit in any 'of the assignments of error complaining that the identity of the fertilizer alleged to have been paid for by the defendant was not established. This issue was fairly submitted to the jury, and there was evidence to sustain their finding that the payment made was for the particular fertilizer involved.

Decided January 14, 1919.

Complaint) from city court of Yaldosta—Judge Cranford. April 5, 1919. '

Franklin & Langdale, for plaintiff..

Patterson & Copeland, Whitaker & Dukes, for defendant.

4. Certain testimony of the witness Jones was objected to as a whole; and since upon examination it appears that a part of it at least was admissible, under the repeated rulings of the Supreme Court and of this court the action of the trial judge in overruling the objection thereto will not be controlled. Birmingham Lumber Co. v. Brinson, 94 Ga. 517 (20 S. E. 437) ; Sweeney v. Sweeney, 119 Ga. 76 (3) (46 S. E. 76, 100 Am. St. E. 159) ; Strickland v. Richardson, 135 Ga. 513 (3) (69 S. E. 871) ; Great Southern Accident & c. Co. v. Guthrie, 13 Ga. App. 288 (6), 292 (79 S. E. 162), and cases there cited; Desverges v. Marchant, 18 Ga. App. 248 (2) (89 S. E. 221).

5. The- assignments of error objecting to portions of the defendant’s testimony as being inhibited by the Civil Code, § 5858, are without merit. The destruction after its payment -of the note given to the Eirst National Bank was not a transaction with the deceased agent. See Puryear v. Foster, 91 Ga. 444, 448. And the other circumstances testified to by the defendant were independent facts, not involving any communication or transaction with the deceased agent.

6. There was evidence to support the verdict, the charge of the court fairly submitted all issues to the jury, and the numerous special assignments of error are without such substantial merit as to require a reversal.

Judgment affirmed.

Jenkins and Luke, JJ., concur.