text:
    10017.
    Wheelis v. Appleton & Company.
    Decided April 16, 1919.
    Petition for certiorari; from Laurens superior court—Judge Kent. July 12, 1918.

      Fred Kea, for plaintiff in error. Larsen & Crockett, contra.
   Jenkins, J.

This was a suit on account, in a justice’s court, for the contract price of §, certain set of books sold by the plaintiff to the defendant under a written contract of purchase and sale. At the trial the-contract was introduced in evidence, and it was admitted that the goods as described in the written agreement were delivered by the plaintiff and accepted by the defendant, and that the full agreed price remained unpaid. The defendant was denied the right of varying by parol the written terms of the unconditional agreement on which the account was based; which the defendant, in his exceptions, claims he had the right to do, for the sole reason that the suit was not brought on the contract, but was based upon an open account. The jury found for the plaintiff, and the defendant applied for certiorari. Held, that the judge of the superior court did not err in refusing to sanction the certiorari. Alabama Construction Co. v. Continental Car Co., 131 Ga. 365 (5), 368 (62 S. E. 160) ; International Harvester Co. v. Morgan, 19 Ga. App. 716 (92 S. E. 35).

Judgment affirmed.

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


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
    10024.
    SANDERS v. ALEXANDER.
    Decided April 16, 1919.
    The. judge of the superior court erred in overruling the certiorari on the ground that it did not appear that a demand for trial by jury had been legally made in the municipal court of Atlanta.

      Certiorari; from Fulton superior court—Judge Pendleton. June 24, 1918.

      Morris Macks, Virgil Jones, Samuel A. Massell, for plaintiff in error. Moore & Pomeroy, J. C. Savage, contra.
   Jenkins, J.

Judgment was rendered by a judge of the municipal court of Atlanta against the defendant in a suit on a promissory note. The suit was entered on the calendar of cases in which no demand for a jury trial had been entered, and, upon being reached in its order on that calendar, was disposed of by the judge in the absense of the defendant and his counsel. The defendant alleged in a petition for certiorari that he had at the proper time legally entered his written demand for a jury; but the judge of the superior court overruled the certiorari, on the ground that it did not appear that a demand for a trial by jury had been legally made. The judge of the municipal court in his answer to the certiorari made the following statement: “The rules of the municipal court of Atlanta require either party to the case desiring a jury trial to demand same on a form for demanding a trial by jury, supplied by the clerk; and the form supplied by the clerk and in force under the rule of court at the time this defendant filed his answer and appearance, on March 6, 1918,, was upon a pink card or sheet of paper, one of the blanks or cards being hereto attached and marked Exhibit A. This card is required; otherwise the clerk of the court and the judge trying the case is liable to overlook the demand if made on some other blank than the one furnished; and the card so furnished is eonspieious on account of its color, and is used for this reason, in order that no demand for jury trial may be overlooked. The card used by attorney for defendant, now petitioner in certiorari, is what is known in the municipal court as the appearance card, and is used simply for this purpose, and.is not intended by the court to be used other than as an appearance card.” He attaches as a part of his answer an identical copy of the “appearance card” referred to by him and used by the attorney for the defendant in entering the demand. This form appears on its face to have been-prepared and printed for the double purpose of entering an appearance by attorney and demanding a trial by jury. While badly filled out, it appears from this exhibit that a trial by jury was in this manner and under the terms of this printed form actually demanded. It also appears from the judge’s answer that such demand must have been received and accepted by the clerk, since an entry of such demand was actually entered and dated on the court’s dockét.

Assuming that the rule of court referred to by the trial judge in his answer, to the effect that either party to the case desiring a jury trial is required to “demand same on a form for demanding a trial by jury, supplied by the clerk,” could, under the authority of the act creating the court, be held to be reasonable and binding, still, since in the record there is nothing going to show that the clerk had formally and legally prescribed an exclusive form for such a demand, -different from the one actually contained in the printed form furnished to the defendant in this case, and since such a demand appears to have been actually contained therein and to have been received and accepted by the clerk and noted by him upon the court’s docket, it is our opinión that the judge of the superior court erred in overruling, the certiorari on the ground that no legal demand for jury trial- had been entered.

Judgment reversed.

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


text:
      10032.

    Whitehead v. Prince.
    Decided June 20, 1918.
    Distraint; from eity court of Carrollton—Judge Beall. June 20, 1918.

      Leon Hood, for plaintiff in error. Buford Boykin, contra.
   Jenkins, J.

A distress warrant for rent was issued on behalf of the defendant in error, which was properly made returnable to the city court of Carrollton. On the trial the amount of the claim to the extent of the verdict rendered for the plaintiff was proved by undisputed testimony. Eeld, that the court did not err in directing the verdict.

Judgment affirmed.

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


text:
    10036.
    BURTON et al. v. JERNIGAN.
    Decided April 16, 1919.
    The contract in question is unilateral and the court did not err in dismissing the action.
    Action on contract; from city court of Leesburg—Judge J. R. Long. July 5,1918.

      Robert R. Forrester, James T. Mann, for plaintiffs.

      Yeomans & Wilkinson, W. G. Martin, for defendant.
   Jenkins, J.

An action for damages was brought by George T. Burton and C. E. Eagan against E. E. Jernigan for an alleged breach of the following contract:

“In consideration [of the] stipulations herein named and of $5.00 paid to E. E. Jernigan of Smithville, Ga., as a bonus by Geo. T. Burton and C. E. Eagan of Dawson, Ga., the first party of the contract promises to deliver unto the second parties of this contract 2000,00 [ ?] bushels of sound dry white Spanish peanuts not later than October 15th, 1917, at a contract price of eighty cents per bushel and thirty pounds to the bushel, also scale weight to govern at Smithville, Ga. And at the time of the delivery, should these peanuts be selling at forty cents or as high as $2.00 per bushel, the first party of this contract promises to deliver at eighty cents per bushel as the contract calls for.
“Signed, sealed, and delivered in the presence of witnesses. This the 25th day of January, 1917.
Witness B. .E. Jones, First Party. E. E. Jernigan.
N. P. Lee Co. Ga. Second Parties. Geo. T. Burton.
Second Parties. C. E. Eagan.”

It is alleged in the petition that by reason of Jernigan’s failure and refusal to deliver the amount of peanuts called for by the contract, the plaintiffs were damaged in the sum of $2,000.

1. The action being in one count for damages arising from the breach of a contract of sale already effected, the court did not err in sustaining a general demurrer thereto. The alleged contract as thus taken and sued upon is plainly unilateral, and therefore unenforceable, since under it the plaintiffs, as the alleged purchasers, did not assume any obligation on their part to accept or to pay for -the goods which they contend the defendant seller had bound himself to deliver. Morrow v. Southern Express Co., 101 Ga. 810 (28 S. E. 998); Simpson v. Sanders, 130 Ga. 265 (60 S. E..541); Martin v. Cox, 13 Ga. App. 236 (79 S. E. 39); Haynes Auto Co. v. Turner, 18 Ga. App. 22 (88 S. E. 717).

2. What the rule would be had the plaintiffs declared upon the contract as one of option, or added a separate and distinct count to that effect, is not before this court for determination. Hillside Cotton Mills v. Ellis, 23 Ga. App. 45 (4) (97 S. E. 459).

Judgment affirmed.

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


author: Per Curiam,

text:
    10051.
    Williams et al. v. State of Georgia.
    Decided April 16, 1919.
    Condemnation under liquor law; from city court of Quitman— Judge W. H. Long. July 31, 1918.

      Theodore Titus, Bennet & Harrell, for plaintiffs in error.

      John E, Morris Jr., Branch & Snow, contra.
   Per Curiam,

In a statutory proceeding to condemn or confiscate a certain automobile, alleged to have been employed in the illegal transportation of liquor contrary to the provisions of section 20 of the act of 1917, all the witnesses testified that at the time of the seizure of the car no intoxicant of any kind was found therein. While one witness swore that at a time previous to the seizure there were intoxicants in “a” ear, he swore further: “I do not know whether that car [having reference to the car in litigation] was used in hauling liquor or not . . . I can’t swear that that ear ever hauled any liquor or not.” Held, that the entire evidence was legally insufficient to support a verdict finding the car subject, and the judgment overruling the defendant’s motion for a now trial must be

Reversed.

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


author: Luke, J.

text:
    10070.
    Harvey v. Lewis.
    Decided April 16, 1919.
    Lien foreclosure; from Evans superior court—Judge Sheppard. July 15, 1918.

      J. J. E. Anderson, S. T. Brewton, for plaintiff in error.

      J. Saxton Daniel, contra.
   Luke, J.

Motions for continuance of cases are addressed to the sound legal discretion of the court, and the party making such a motion must show that he has used due diligence. Civil Code (1910), §§ 5721-4. In this ease the trial judge did not abuse this discretion. See Blackwell v. Jennings, 128 Ba. 264 (57 S. E. 494). For no reason assigned did the court err in overruling the motion to continue the case, or in overruling the motion for a new trial.

Judgment affirmed.

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


author: Wade, C. J.

text:
    10082.
    JONES v. SOUTHERN MORTGAGE COMPANY.
    Decided April 16, 1919.
    The extension granted by the creditor ifi taking the joint promissory note of the defendants for the antecedent debt of one of them was sufficient consideration to support the promise of the other.

      Complaint; from Burke superior court—Judge H. C. Hammond. June 29, 1918.

      C. B. Garlick, for plaintiff in error.

      E. V. Carter, Brinson & Hatcher, contra.
   Wade, C. J.

The Southern Mortgage Company brought suit against R. P. Jones and T. D. Jones upon a joint promissory note, and also, foreclosed a mortgage given by T. D. Jones to secure the payment of the note. R. P. Jones did not defend against the note, and default judgment was taken against him. T. D. Jones filed a defense. The two suits were, by agreement of counsel, tried as one. The defense interposed by T. D. Jones was. twofold: (1) that the. instruments were signed by him to settle or prevent a threatened criminal prosecution against R. P. Jones; and (2) that both instruments, so far as he was concerned, were without any consideration whatsoever. The case was submitted to a jury, and the verdict was in favor of the plaintiff. .Counsel for the plaintiff in error, in his brief, insists only upon that ground of the motion for a new trial which complains that the court erred in failing to charge the law applicable to the defense of failure of consideration.

The instruments sued upon being under seal, the law presumes a consideration (Civil Code of 1910, § 4241); and this presumption was not rebutted by the defendant. To the contrary, he admitted in his answer and in his evidence that there was a consideration for both the note and the mortgage, to wit, that his brother was indebted to the plaintiff in the amount sued for, and that this indebtedness was extended on' account of the note and mortgage executed by him. “An extension of time by a creditor to his principal debtor is a sufficient consideration to support the indorsement of a note’renewing, the original debt. The court committed no error in striking defendant’s pleas and in directing a verdict against him.” Hollingshead v. American National Bank of Macon, 104 Ga. 250 (2) (30 S. E. 728). See also, in this connection, Carr v. Rountree, 9 Ga. App. 393 (71 S. E. 589). The defense of failure of consideration not being sustained by the proof, the court did not err in’failing to charge on this subject.

Judgment affirmed.

Jenkins and Luke, JJ„ concur.


text:
    10242.
    Slack v. Pettigrew et al.

    Decided April 16, 1919.
    .Certiorari; from Morgan superior court—Judge Park. November 18, 1918. . '
    Suit for money had and received was brought in a justice’s court against officers of a lodge by a deceased member’s' widow, who contended that as his nearest relative she was entitled on his death to certain money from the lodge which was paid to others instead of to herself. There was evidence that Jim Booker, the treasurer of the lodge, who was one of the defendants, paid the money in question to persons other than the plaintiff, and that some of it was turned over by him to Perry, another defendant, and paid over by Perry under his direction. It does not appear that when Perry paid out the money he knew that it belonged to or was claimed by the plaintiff. The defendants other than Perry testified that they did not receive any of the money and had nothing to do with its payment. The trial of the case by a jury in the justice’s court resulte'd in a verdict for the defendants. The judge of the superior court, on certiorari, granted’a new trial as to Jim Booker, but overruled the 'Certiorari as to the other defendants. The plaintiff excepted to this judgment.

      M. C. Few, for plaintiff.
   Luke, J.

Upon the petition . for certiorari and the answer thereto the judge of the superior court did not err in overruling the certiorari as to all the defendants therein named except Jim Booker. See Citizens Bank of Fitzgerald v. Rudisill, 4 Ga. App. 37 (5), 42 (60 S. E. 818).

Judgment affirmed.

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


text:
    10245.
    Brown v. Nichols, administratrix.
   Luke, J.

1. It is essential to the validity of every contract that there be a consideration; and the fact that a promissory note is under seal ■ will not defeat the right of the maker or his administrator to plead want of consideration. A contract nudum pactum is no more .enforceable when under seal than when not under seal, as against a timely defense and proof thereof. Seawright v. Dickson, 16 Ga. App. 436, 440 et seq. (85 S. E. 625); Krueger v. Simmons, 22 Ga. App. 210 (95 S. E. 718), and eit.

(a) The court did not err in refusing to charge the jury that “a promissory note under seal may be the subject of a valid gift, as between the maker and the payee thereof, and needs no other or further consideration.

Decided April 18, 1919.

Complaint; from Bleckley superior court—Judge Graham. November 18, 1918.

Dykes A. Brown, the payee of a promissory note for $5,000, purporting to have been signed by B. E. Nichols, brought suit thereon against the administratrix of the estate of Nichols. The defendant pleaded non est factum, payment, and that the note was nudum pactum; and introduced evidence which it was contended would authorize a finding in favor of any of these defenses. There was testimony as to declarations of the plaintiff tending to show that the decedent intended by this note to make a gift to him. The note was under seal. On the proposition that a promissory note under seal may be the subject of a valid gift as between the maker and the payee, counsel for the plaintiff cited Lacey v. Hutchinson, 5 Ga. App. 874. On the question whether total want of consideration may be pleaded to a note under seal, he cited: Weaver v. Cosby, .109 Ga. 310 (2); Sivell v. Hogan, 119 Ga. 167 (1); Van Dyke v. Van Dyke, 123 Ga. 686; Slaton v. Fowler, 124 Ga. 956. As to want of consideration, counsel for the defendant cited: Loudermilk v. Loudermilk, 93 Ga. 444 (2); Davis v. Morgan, 117 Ga. 507; Monroe v. Marlin, 137 Ga. 262. As to such a defense to a sealed note he cited: Lacey v. Hutchinson, supra, p. 865; Sims v. Scheussler, 5 Ga. App. 850 (4); Saul v. Southern Seating &c. Co. 6 Ga. App. 843; Williams-Thompson Co. v. Williams, 10 Ga. App. 251; Strickland v. Farmers Supply Co., 14 Ga. App. 661; Bruton v. Wooten, 15 Ga. 570; Neil v. Bunn, 58 Ga. 583; Simms v. Lide, 94 Ga. 553; Weaver v. Crosby, 109 Ga. 310 (2); Clark, Contr. 72, par. 33.

H. F. Lawson, for plaintiff.

Hamilton McWhorter, Hall & Grice, for defendant.

2. The court did not err in overruling the objection to the admissibility of evidence as set out in ground 1 of the motion for new trial.

3. The evidence supported the verdict, which has the approval of the learned trial judge; and for no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

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


text:
    10250.
    Taylor v. Keller.
    Decided April 16, 1919.
    Certiorari; from Bibb superior court—Judge Mathews. October 30, 1918.

      L. D. Moore, for plaintiff in error. Matcher & Smith, contra.
   Luke, J.

The petition for certiorari assigns error upon the ground that the evidence did not authorize the verdict. The evidence, though conflicting, supports the verdict, which the trial court and the judge of the superior court approved. It was not error to overrule the certiorari.

Judgment affirmed.

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


text:
    10262.
    Reserve Loan Life Insurance Company v. Davis.
    Decided April 16, 1919.
    Certiorari; from Fulton superior court—Judge Ellis., October 29, 1918. -
    It was contended on the part of the insurance company that although the plaintiff did not receive the policy, it became effective and remained in force throughout the period covered by the premium paid, that there was no rescission or cancellation which would relieve the company from liability on the policy, and that the plaintiff therefore received the consideration for which the premium was paid.

      Moore & Pomeroy, Jack C. Savage, for plaintiff in error, cited:
    Park’s Ann. Code, § 2470; N. Y. Life Ins. Co. v. Babcock, 104 Ga. 67; 1 Joyce, Ins., §§ 90, 100; 3 Joyce, Ins., § 1397 ; Alston v. Greenwich Ins. Co., 100 Ga. 286; Fireman’s Fund Ins. Co. v. Pekor, 106 Ga. 1 (1); Mass. Mut. L. Ins. Co. v. Boswell, 20 Ga. App. 446 (2); Metropolitan L. Ins. Co. v. Thompson, 20 Ga. App. 706 (1-2); Home Ins. Co. v. Chattahoochee Lumber Co., 126 Ga. 334; Hollingsworth v. Germania &c. Ins. Co., 45 Ga. 294; Favors v. Bankers Ins. Co., 18 Ga, App. 522.
   Luke, J.

Davis applied to the Reserve Loan Life Insurance Company for a policy of life-insurance and paid the first premium in cash. The company issued the policy and sent it to an agent of the company, for the purpose of delivery, but, after holding it a short time, the agent declined to deliver it, and returned it to the principal office of the company, for cancellation, and it was there destroyed. Repeated demand was made for return of the premium, but it was retained by the company, and Davis sued the company for the premium. He pleaded a good cause of action, and by uneontradicted evidence proved his case as laid. The trial judge did not err in directing a verdict for him. For no error assigned did the.judge of the superior court err in overruling the certiorari.

Judgment affirmed.

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

J. A. Branch, contra, cited:

Supreme Council v. Jordan, 117 Ga. 808; Alabama Gold L. Ins. Co. v. Germany, 74 Ga. 51.


text:
    10279.
    Butler v. Mooty, administrator.
    Decided April 16, 1919.
    Motion for a new trial; from city court of LaGrange—Arthur Greer, judge pro hac vice. December 11, 1918.
    From the bill of exceptions it appears that a judge pro hac vice, by agreement of the parties and under “orders regularly entered on the minutes, in accordance with the requirements of the law,” presided on the trial of this case at the March quarterly term of the city court of LaGrange. A verdict was rendered in favor of the plaintiff, and the defendant filed at the same term a motion for a new trial, and at that term and during a session of the court when the judge of the city court was presiding the judge pro hac vice signed a rule nisi directing the plaintiff to show cause on a named day in vacation why the motion should not be granted, and signed an order extending until the hearing the time for presenting a brief of the evidence. The bill of exceptions states that these orders were not signed while the judge pro hac vice was upon the bench presiding, but were signed while he was in the bar of the court. By subsequent order he extended the time for the hearing of the motion for a new trial, and at the December quarterly term, 1918, he approved the brief of the evidence and an amendment to the motion. The plaintiff then moved to dismiss the motion, because the rule nisi “was not issued from the city court of LaGrange, it not being signed by the judge of said court,” and because the order continuing th.e.;hearing of the motion was not signed by the judge of the city court.. The judge pro hae vice sustained this motion and dismissed the motion for a new trial; and to this the defendant excepted.
   Luke, J.

This case is controlled by the decision in Gainesville Buggy and Wagon Co. v. Morrow, 23 Ga. App. 268 (98 S. E. 100). The judge pro hac vice erred in dismissing the motion for a new trial. Let it he reinstated.

Judgment reversed.

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

Hatton Lovejoy, Duke Davis, for plaintiff in error.

M. U. Mooty, contra.


text:
    10280.
    Cox v. Barton & Powell.
    Decided April 16, 1919.
    Complaint; from city court of Yaldosta—Judge Cranford. November. 14, 1918.

      A. T. Woodward, Whitaker & Dukes, for plaintiff in error-

      James M. Johnson, contra.
   Luke, J.

Assignments of error not urged in the brief of the plaintiff in error will be treated as abandoned. The evidence in this case, though conflicting, was sufficient to authorize the verdict. The finding of the jury having the approval of the able trial judge, and there being no error of law in the trial, insisted upon here,- the judgment overruling the motion for a new trial is-

Affirmed.

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


author: Bloodworth, J.

text:
    8323.
    Reliance Life Insurance Co. v. Hightower.
   Bloodworth, J.

“An insurance company may limit the power of its agent, and when notice that the agent’s power is limited is brought home to the insured in such manner as would put a prudent man on his guard, the insured relies at his peril on any act of the agent in excess of his power.

“ (a) The insured is bound by plain and unambiguous limitations upon the power of the agent contained in his policy.

“ (5) Where the application for a policy of life-insurance and the policy itself stipulate that the insurance shall not become effective until the first premium shall have been actually paid while the applicant is in good health, and that agents are not authorized to modify the policy or extend time for paying a -pi-enurm) the actual payment of the first premium during the good health of the applicant is a condition precedent to the liability of the insurer; and a local agent of the company could not waive such condition.

“ (c) The formal acknowledgement of the receipt of the first premium in a policy of life-insurance containing the provisions above stated is not conclusive of payment, so as to estop the company from denying the validity of the policy, except in a ease of due or unconditional delivery of the policy by the company.”

The foregoing rulings, made in answer to questions certified to the Supreme Court by this court, dispose of all the material issues raised in the motion for a new trial, and are controlling on the questions involved. For full opinion see Reliance Life Ins. Co. v. Hightower, 148 Ga. 843 (98 S. E. 469). Under the principles announced therein, the judgment of the trial court must be

Decided December 11, 1916.

Action on insurance policy; from Murray superior court—Judge Fite. December 11, 1916.

Brewster, Howell & Heyman, C. N. King, for plaintiff in error.

Bryan & Middlebrooks, Leo Sudderth, contra.

Reversed.

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


text:
    10229.
    Plair v. The State.
    Decided April 16, 1919.
    Indictment for misdemeanor; from Colquitt superior court— Judge Thomas. November 13, 1918.

      Parker & Gibson, for plaintiff in error.

      C. E. Hay, solicitor-general, contra.
   Bloodworth, J.

1. The evidence in this case was sufficient to establish that the offense charged was committed on May 28, 1918, and from the record it is clear that both the State and the defendant so understood and accepted it, though the evidence on the trial, which took place in July, 1918, was that the offense was committed on “May 28th,” without stating in what year. Tipton v. State, 119 Ga. 304 (2), (46 S. E. 436); Goldberg v. State, 22 Ga. App. 122 (95 S. E. 541). This being true, and the evidence showing that the offense was committed solely on that date, the charge of the judge that the jury might return a verdict of guilty on the indictment (which was brought under the prohibition act of March, 1917), if they believed the accused to be guilty of the offense charged any time within two years previous to thp finding of the indictment (in July, 1918), was harmless. See Tatum v. State, 22 Ga. App. 638 (7) (96 S. E. 1046; Adams v. State, 22 Ga. App. 252 (95 S. E. 877). In this connection see also Ford v. State, 21 Ga. App. 499 (94 S. E. 627).

2. There was ample evidence to support the verdict.

Judgment affirmed.

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


text:
    9928.
    PHILLIPS-JONES COMPANY INC. v. BLACKSTOCK, HALE & MORGAN.
    When a contract for the sale of goods is still executory on both sides, notice by the purchaser to the seller that he will not accept and pay for the goods amounts to a breach of the contract. Thereafter the seller can not deliver the goods to a common carrier, consigned to the buyer, and, having done so, treat the contract as executed on his part, by suing the buyer for the purchase-price of goods sold and delivered;” but his remedy is an action to recover damages for a breach of the contract, or one of the remedies pointed out in section 4131 of the Civil Code of 1910.
    Decided April, 17, 1919.
    Complaint; from Fulton superior court—Judge Ellis. June 20, 1918.
    This is the second time this case has been before this court. See Blackstock.v. Phillips-Jones Co., 21 Ga App. 774 (95 S. E. 265). It was a suit on account for the price of certain shirts sold by the plaintiff, Phillips-Jones Company, to the defendants, Black-stock,'Hale & Morgan. The first trial resulted in a verdict for the plaintiff, and the judgment refusing to grant a new trial was reversed by this court upon the ground that there was no evidence to support the allegation of the plaintiff’s petition to the effect that after the refusal of the defendants to accept the goods, they “stored same as the property of defendants, and same are now stored as the property of defendants, and petitioners bring this suit and pray judgment for the purchase price with interest,” etc. Hpon the second trial the plaintiff, in an effort to meet this ruling introduced testimony from Phillips, a director and the general manager of the plaintiff, that “The articles sued for are stored at present in our factory, 829 East 134 Street, New York City, . . and are stored there because they were refused by Blackstock, Hale & Morgan, and are being held subject to the decision in this case. Since the commencement of this suit they have been stored. Some of the goods were lost in transit, while being brought back. A claim is pending with the railroad company. . . The shirts were shipped as instructed. They were refused at destination, and were then stored with the Morrow Transfer & Storage Company at Atlanta, Georgia, and they were then, ordered back from them to our factory. . . They were shipped back by the storage company in Atlanta, Georgia, on the 21st day of November, 1914,” two days after the filing of the suit. At the conclusion of the plaintiff’s testimony the court granted a nonsuit; .to which the plaintiff excepted.

      Mayson & Johnson, for plaintiff.

      Joseph W. & John D. Humphries, for defendants.
   Jenkins, J.

' (After stating the foregoing facts.) It is con-, tended by counsel for the plaintiff that this additional testimony. adduced upon the second trial entitles the plaintiffs to-recover under section 4131 of the Civil Code'(1910), which provides, that, ‘‘If a purchaser refuses tó take and pay for goods bought, the seller may . . store or retain the property for' the vendee and sue him for the entire price.” With' this contention, however, we can not agree." As stated in the former decision in this ease, “It is undisputed that (as shown by-the'testimony of' Phillips)' a'director .and the-general manager of the plaintiff) the’, defendant's eountermanded the order for the shirts several months prior to the delivery, to the carrier. .Phillips- admitted receiving'a letter-from the defendants on October-24) 1913,' cancelling the order, á.nd &" letter from them on November 28, 1913, again cancelling the ordéir, and notifying the plaintiff that they would not accept the goods.' The goods, were-delivered to the'carrier, as alleged in the petition on April 30, 1914.’’-. The evidence further shows that after the failure"-of the defendants to accept the "goods upon arrival at destination, and prior to the bringing of this suit, the plaintiff ordered their return, and a portion of the- goods-were lost in transit; and'while the witness testifies that the goods ordered by 'the defendants" are .now stored -at the plaintiff’s factory) his testimony further shows that'this,-is not true as'to' all- of them,'and fails to disclose’ what portion of them is thus actually held'; The evidence 'thus fails to prove the ease as laid, in that i-t shows that at least’ portion of the goods as ordéred is not now and' was- not at the time the suit-was instituted stored for the vendee. . Inour opinion,- the evidence brings this case squarely within.the rulé announced by the .Supreme Court in Rounsaville v. Leonard Mfg. Co., 127 Ga. 735. (56 S. E. 1030). Here, as in that case, the plaintiff failed to pursue, the- remedy on which he attempts 'to rely, as provided- by section-4131 of the Civil Code. Oklahoma Vinegar Co. v. Carter, 116. Ga. 140 (S. E. 378, 59 L. R. A. 122,.94 Am. St. E. 112.) In the instant case- the vendor originally' undertook, not to -store the goods for the defendants, but to deliver thém to the defendants; and-in.attempting to make the-unauthorized delivery a portion of' the goods was lost. The delivery of the original shipment, to common carrier being unauthorized, it did not-amount to a deliver^to the vendees; and since the-requirement of section 4131 relative" to the storage of goods by the vendor, on which the claim is based, has not nnder any possible theory or contention been complied with, the court did not err in granting a nonsuit.

Judgment affirmed.

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


text:
    9944.
    Copeland v. Maxwell.
    Decided April 17, 1919.
    Complaint; from city court of Cairo—Judge Willie. June 28, 1918.

      L. W. Rigsby, Ira Carlisle, for plaintiff in error.
   Jenkins, J.

This was a suit by a cropper against his landlord for the value of a half of the crops raised, wherein it was alleged that “the plaintiff was to leave on said place and did leave on said place the same amount of seed-cane that was planted by him,” and that “he dug- up and banked the same amount of seed-cane that he planted.”' The defendant demurred specially to these allegations, upon the ground that the petition failed to set forth the amount of seed-cane planted and the amount left on the place; and he also demurred generally. The demurrer was overruled, the case proceeded to trial, and the verdict was in favor of the plaintiff. Held:

1. The court did not err in overruling the general demurrer that the petition set out no, cause of action. Woolley v. Adams, 85 Ga. 659 (11 S. E. 784) ; Payne v. Watters, 9 Ga. App. 265 (70 S. E. 1114).

2. The averments setting up the stipulations in regard to the seed-cane, and compliance with the plaintiff’s resultant obligation, were not averments necessary as a condition precedent to the bringing of the suit; and since the plaintiff does not claim any indebtedness by reason of these averments, the defendant had no right to require elaboration of the petition in this respect. If the plaintiff failed to comply with the stated provision of the contract relating to the seed-cane actually furnished to him by the defendant, it was a matter within the knowledge of the landlord, and could be set up by way of defense.

3. There was evidence sufficient to authorize the verdict, and the court did not err in overruling the motion for a new trial, which was based on general grounds only.

Judgment affirmed.

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


text:
    9984.
    Davis v. Davis & Joiner Realty Company.
   Wade, C. J.

1. A “broker’s commissions are earned when, during the agency, he finds a purchaser ready, able, and willing to buy, and who actually offers to buy on the terms stipulated by the owner” (Park’s Ann. Code, § 3587, and note) ; and in view of the testimony of the defendant in this case, that the plaintiff (a broker suing for commission) “told me that Mr. Monerief [the would-be purchaser] was ready to take the property on the terms stated; . . I knew that Mr. Monerief was able to pay for the-property,” which evidence was corroborated by the testimony of the broker and of the would-be purchaser, the verdict in favor of the plaintiff can not be set aside by this court on the general grounds of the motion for a new trial.

Decided April 17, 1919.

Complaint; from city court of Thomasville—Judge W. H. Hammond. July 8, 1918.

Titus, Dekle & Hopkins, for plaintiff in error.

C. E. Hay, contra.

2. None of the special grounds show reversible error, and the judgment overruling the motion for a new trial is

Affirmed.

Jenkins and Luke, JJ., concur.


text:
    9992.
    Price v. Cocke.
    Decided April 17, 1919.
    Complaint; from city court of Dawson—Judge Edwards. July 6, 1918.
    The petition alleges: that on August 11, 1917, the defendant entered into a written contract with the plaintiff, appointing him as her exclusive agent for a period of twenty days to sell a described plantation of 1668 acres at the price of $18 per acre, on which he was to- be paid a commission of five per cent., if during the life of the contract the property should be sold by him, or by the defendant or any one else; that during the life of the contract he succeeded in interesting E. C. Speer in the purchase of the property, and made known to the defendant the fact that he had succeeded in getting a prospect, and by mutual agreement the term of the contract was extended to September 7, 1917; that before that date he took up negotiations for a sale of this land with Speer, and carried Speer over the land, used the utmost diligence in all matters pertaining to a sale of the land, and acted in the utmost good faith'towards the defendant; that after making an inspection of the land Speer made to him a counter-proposition to that stated in the said contract, so far as the price was concerned, .to wit, $15 per acre; and the plaintiff immediately submitted to the defendant, during the life of the contract, this counter-proposition of Speer, and the defendant declined it and so notified the plaintiff; that she acted in bad faith in so doing, and did so with the concealed'purpose of depriving the plaintiff.of his commissions under her contract with him, by allowing the term of his agency to expire and thereafter closing the sale on the proposition as made by Speer; that as soon as the term of the plaintiff’s agency expired the defendant accepted Speer’s counter-proposition and sold the land to him at $15 per acre cash, finally consummating the sale in accordance with that proposition; that this was due solely to the plaintiff’s efforts in procuring Speer as a purchaser; that the defendant secretly accepted Speer’s counter-proposal when it was submitted to her by the plaintiff, but deferred a communication of her acceptance to Speer until after the expiration of the plaintiff’s agency, for the sole purpose of depriving him of his commissions, in all of which she acted in bad faith; that she received from Speer $25,000 cash for the land, and, under her contract with the plaintiff, is indebted to him 5% of this amount, to wit, $1,250, besides interest, for which the plaintiff sues. A copy of the written contract is attached to the petition. By amendment allegations were added as to the defendant’s purpose fraudulently to take advantage of the plaintiff’s efforts and- labor to procure a purchaser on terms at which she was willing to sell, and thereby to defraud him of his commis•sion; it is alleged that on the next day after the expiration of-■his term of agency, and without further negotiations, thé defendant communicated to Speer that she was willing to sell the land according to the said counter-proposition, and she did sell the land according to that proposition. The petition was dismissed on general demurrer.
   Wade, C. J.

Where a suit for a commission- on a sale of land is based upon a contract authorizing the plaintiff to sell the land for the defendant for a fixed price per acre within a specified time, and it does not appear from the petition that the plaintiff procured a purchaser ready, able, and willing to buy at the price stipulated, or that during the life of the contract there ■ was such interference on the part of the defendant as to prevent a sale of the property, or any secret agreement, collusion, or mutual understanding between the defendant and the prospective buyer, while negotiations were pending, to delay the consummation of the trade until after the expiration of the contract, the petition is subject to general demurrer, even though it be' alleged that immediately after the expiration of the contract (time being of the essence) the defendant sold the property to one who had been negotiating with the plaintiff. The trial judge in this ease therefore did not err in dismissing the suit on demurrer. See Civil Code of 1910, §,3587; Morris v. Jackson, 9 Ga. App. 848 (72 S. E. 444) ; Emery v. Atlanta Real Estate Exchange, 88 Ga. 321 (14 S. E. 556); Humphries v. Smith, 5 Ga. App. 340, 342 (63 S. E. 248) ; Case Threshing Machine Co. v. Binns, 23 Ga. App. 46 (3), (97 S. E. 443).

Judgment affirmed.

Jenkins and Luke, JJ., concur.

Yeomans & Willkinon, Ware G. Martin, for plaintiff cited:

Humphries v. Smith, 5 Ga. App. 343; Graves v. Hunnicutt, 8 Ga. App. 99; Doonan v. Ives, 73 Ga. 395 Hill v. Wheeler, 3 Ga. App. 349; 9 Corpus Juris, 601, 606.

Parks & Parks, for defendant, cited:

Civil Code (1910), § 3587; Morris v. Jackson, Emery v. Atlanta Real Estate Exchange, and Humphries v. Smith, supra.


text:
    10000.
    RELIANCE FERTILIZER CO. v. PERRY et al.

    Decided April 17, 1919.
    The issue of partnership or no partnership, raised by the pleading in this case, was broad enough to authorize proof by the plaintiff of either a partnership in fact or an ostensible partnership. The writings signed by the defendants which the plaintiff offered in evidence and which the court excluded were competent to show a partnership in fact; though, in the absence of proof that the plaintiff, when entering into the contract sued upon, relied upon or was misled by the admissions in the excluded writings, they were not admissible to show an ostensible partnership. The court erred in excluding them, and in directing a verdict for the defendants.
    Action on contract; from city court of Thomasville—Judge W. .H. Hammond. June 37, 1918.

      W. L. Clay, Merrill & Grantham, for plaintiff.

      Titus, Delete & Hopkins, Peacock & Gardner, for defendants.
   Wade, C. J.

The Reliance Fertilizer Company “ brought suit against the Boston Oil Mill Company, as a copartnership composed of F. S. Perry, G. M. Cochran, and S. A. Cole, for breach of a-yritten contract. The alleged partners jointly filed a plea of misjoinder, and also filed separate pleas- of no partnership-, as well as an answer to the petition. When the case came on for trial the defendants moved that the issues raised by their' pleas of misjoinder and of no partnership be tried before the trial of the issues made by the petition and their answear thereto. The court granted ■this motion. At the conclusion of the testimony submitted by the plaintiff, the court on motion directed a verdict for the defendants. Thereupon, the plaintiff sued out a bill of exceptions, assigning error upon the direction of the verdict, and upon the exclusion of certain evidence offered by the plaintiff.

The evidence the exclusion of which is complained of is a recorded agreement between the defendants and the Southern Bank and Trust Company dated September 28, 1916, an agreement between the same parties dated August 25,1916, and a recorded mortgage between the same parties dated October 21, 1916. These instruments were each signed by each of the defendants, and show that the Boston Oil Mill Company was at the time of their execution a partnership composed of F. S. Perry, G. M. Cochran, and S. A. Cole. The trial judge stated that his reason for not allowing these instruments in evidence was that they “were, under the law as laid down by the Georgia Supreme Court [in American Cotton College v. Atlanta Newspaper Union], Vol. 138, page 14 (4 a), irrelevant, because there was no proof that the plaintiff had knowledge of such agreements at or prior to its alleged contract with the defendants upon which suit is brought.” The ruling referred to has reference to ostensible partnerships only, and is, as we hereinafter endeavor to make clear, entirely inapplicable tó the instant case, there being a manifest distinction between proof of a partnership in fact and proof of an ostensible partnership. The issue raised by the pleadings was partnership or no partnership, and the plaintiff, in order to hold the defendants liable on their contract, could-rely either upon proof that they were partners in fact or upon proof that they were merely ostensible partners. . The issue therefore was not ■ solely whether the defendants were ostensible partners. Had this been the case, they could not (the principle of estoppel applying) be held liable as ostensible partners, without proof of some misleading act on their part, known to the plaintiff and upon which the plaintiff acted to its detriment. The evidence - rejected was entirely admissible to show actual partnership, though not an ostensible partnership;- and consequently the learned trial judge erred in ruling it out altogether.

In the case of Swygert v. Bank of Haralson, 13 Ga. App. 640 (79 S. E. 759), this court,' speaking through Chief Judge Hill, very clearly drew the distinction between proof of a partnership in fact and the' law applicable thereto, and proof of an ostensible partnership not existing in fact, and the law applicable thereto. In that decision (p. 641) it was said: “Bepeated admissions were proved to have been made by each one of the alleged copartners that he was in fací a member of the firm of Swygert Brothers. It is contended by the learned counsel for the plaintiff in error that the existence of a partnership cannot be proved by the admissions of those alleged to be members. The general rule on this subject, which seems to be well settled, is that a partnership may be proved by evidence that each and all of the alleged partners admitted its existence, but that the admissions of one defendant, made in the absence of the others, is not evidence against the others of the existence of the partnership. This rule is stated as follows in Flournoy v. Williams, 68 Ga. 707: ‘The sayings or admissions of one of an alleged partnership, not in- the presence of others, nor brought to their knowledge and assented to or ratified by them, are inadmissible to bind the other party, or establish the existence of the partnership so as to bind the other parties.’ ” Now, in the case under consideration, the rejected-evidence (which was in the form of written instruments) admitted over the signature of each one of the defendants the existence of a partnership. Therefore on this point we have the written statement of each of the alleged partners, admitting a partnership and his relation thereto. In the opinion in the Swygert ease, supra, it was said (p. 642): “The evidence is also undisputed that in making the loan represented by the two promissory notes sued upon the plaintiff bank relied upon the truth of the statement of each one of the alleged partners that they were in, fact members of the firm. The bank, having acted upon these admissions, could have relied upon the doctrine of estoppel on this question of partnership, under the principle laid down in Thornton v. McDonald, 108 Ga. 4 (33 S. E. 680); but the plaintiff is not compelled to invoice this doctrine. It can rely upon the fact of the partnership as proved by the admissions of each of the alleged members thereof." (Our italics.) This is a clear statement of the position taken by the plaintiff in' the instant case,—-that he was not compelled to rely upon the doctrine of estoppel, but could rely altogether upon proof of-partnership in fact.

It is true that the rejected testimony shows that the admissions of the alleged partners that they were, as between themselves as well as towards the public, actual copartners, liable for the obligations of the Boston Oil Mill Company and entitled to participate in its profits, involved transactions prior to the contract sued upon. However, such admissions were amply sufficient to show the existence of a partnership at the time they were made. Park’s Ann. Code, §§ 3155, 3158; Pursley v. Ramsey, 31 Ga. 403; Chaffee v. Rentfroe, 32 Ga. 477; Fleshman v. Collier, 47 Ga. 253 (2); Cary v. Simpson, 15 Ga. App. 280 (3), 283 (82 S. E. 918). And a partnership once proved is presumed to continue until proof of its termination. Pursley v. Ramsey, supra; 16 Cyc. 1053.

Consequently, our judgment is that the able trial judge erred in rejecting the proffered testimony discussed above, and in thereafter directing a verdict for the defendants. Moreover, even if the rejected testimony had been legally inadmissible, the court was (there being no evidence introduced in behalf of the defendants) without authority to direct a verdict against the plaintiff on the theory that it had not made out a prima facie ease, since it has been repeatedly held that, if the evidence fails to support the allegations of the petition, the trial court, though possessing the right to grant a nonsuit when the plaintiff rests, has no power to direct a verdict for the defendants. Hanson v. Crawley, 51 Ga. 529; Exposilion Mills v. W. & A. R. Co., 83 Ga. 441 (10 S. E. 113). However, had the direction of a verdict been the only error in the trial of this case, the judgment of the lower court would be affirmed, on the condition that the verdict directed be vacated, and a judgment of nonsuit entered. Guest v. Tyner, 141 Ga. 402 (6) (81 S. E. 125.)

The other assignments of error, all of which complain of the exclusion of certain testimony, are without substantial merit, or the alleged errors are not likely to recur'on another trial.

Judgment reversed.

Jenkins and Luke, JJ., concur.


text:
    10054.
    Perry, administrator, v. Gammage.
   Jenkins, J.

Where a motion for a new trial is filed during the term of the trial and an order is then entered setting down the hearing of the motion for a named day in vacation, that day, relatively to the hearing of the motion, is in legal contemplation a continuance of the term at which the order was entered. When that day arrives the court has jurisdiction to hear the motiqn, but if it is not then either heard on its merits or dismissed, it must by express written order be continued to some subsequent day, or else it will go over to the next succeeding term of the court in which it was .made, unless it be in the meantime disposed of under the provisions of the Civil Code (1910), §§ 4852, 4853. Perry v. State, 12 Ga. App. 573 (77 S. E. 879) ; Moore v. Citizens Bank, 19 Ga. App. 593 (91 S. E. 932). See also Cozart’s Georgia Practice Pules, 76, § 208, citing Broadway National Bank v. Kendrick, 130 Ga. 382 (60 S. E. 998). The mere oral announcement of a continuance by the court, made on the day set for the hearing in vacation, even though verbally assented to by counsel, .will not keep the court -thereafter open for further proceedings upon the motion. Atlanta &c. Ry. Co. v. Strickland, 114 Ga: 998 (41 S. E. 501). The motion in this ease is therefore still pending in the court below, undisposed of by any valid judgment.

Decided April 17, 1919.

Garnishment; from city court of Americus—Judge-Harper. July 26, 1918. -

L. J. Blalock, for plaintiff in error.

R. L. Maynard, contra.

Judgment reversed.

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


text:
    10057.
    DANCE v. CITY OF ROME.
    Decided April 17, 1919.
    There was no demurrer to the petition; and there being evidence tending to establish all its material allegations, as to damage to the plaintiff by reason of changes made by the city in the sidewalk and ditch in front of her premises,' the case should have been submited to a jury, and the court erred in directing a verdict for the defendant..
    - Action for damages; from city court'of Eloyd county—Judge Nunnally. August 12, 1918.

      J. W. Ewing, Dean & Dean, for plaintiff.

      Max Meyerhardt, contra.
   Wade, C. J.

Mrs. Regina'Dance, as the owner of a house and lot (known as No. 4) on the- south side of Blanche Avenue, about 15 or 20 yards from the corner of South Main street, which avenue now is and has been for a number of years one of the streets of the City of Rome, under its control, supervision, and dominion, brought suit against the city for damages, and in her petition alleged: That during the year 1915, South- Main street (which is between Blanche Avenue and Glover street) was, because of certain construction work, “torn up” and in such condition that the traveling public were forced to make exclusive use of Blanche Avenue and Glover street in going to and from East Rome, and that this condition continued for a number of 'weeks; that during the course of the construction work on South Main street the city elevated the road-bed in front of her house and with its heavy wagons traveled over the sidewalk upon which her property fronted, and permitted .other vehicles to do the same, causing the sidewalk to be lowered to a level with her lot; that prior to the improvement work on South Main street there was a ditch or gutter running along the sidewalk in front of her house, amply sufficient to drain and carry off all the water that naturally flowed down Blanche Avenue, but that the heavy travel on said avenue, due to the said work on South Main street, eliminated her sidewalk and caused the ditch to fill up, so that water, after every hard rain, was forced upon her lot, damaging her property and her family; that this condition’ existed for more than a year, notwithstanding she had, through her husband, repeatedly requested the officers and agents of the municipality to remedy the evils complained of; that she suffered several attacks of malarial fever, caused by the constant overflow of her premises and the ponding of water thereon; that the city, having constructed the sidewalk and ditch in front of her house, was legally bound to keep the same in such a condition as to protect 'her property; that the defendants negligent and wrongful acts aforesaid damaged the market value of her property, as well as its rental value, and caused her physical and mental pain and suffering; and that notice of her claim for damages was duly served upon the city before this suit was brought. The defendant filed a plea denying liability for the injuries complained of. The case went to trial, and, at the conclusion of the evidence for both sides, the court directed a verdict for the defendant. To this the plaintiff excepted.

The sole question for adjudication is, therefore, whether there was sufficient proof of the case as made by the pleadings to require its submissionrto a jury. As to the construction by the city of the sidewalk and ditches in front of. her property, the plaintiff testified: “That sidewalk and ditch in front of my house the City of Borne built and dug. They had’ been there for years. I have been there for 18 years, and there was a sidewálk there when I moved there. That sidewalk had been maintained by the City of Borne all during that time, from the time I first moved there until now, and the ditch in front of my house also.” The witness Coppage testified: “In 1901 and 1902 I worked for the City of Borne on the streets. I was foreman of a gang on the street, a street-gang. At'that time Mr. Hanks was mayor and Mr. Pollock was chairman of the street committee, and he saw me one afternoon and told me to'take the gang over there on Blanche‘Avenue and, clean out those ditches,—Mr. Pollock told me that. Mr. Pollock’s position, with reference to the city at that time, was that of chairman of the' street committeee of the council, and I went and opened those ditches on both sides of Blanche Avenue. That was about 1902. I put the' ditches a great deal lower than the sidewalk, and built the sidewalk up as I cut the ditches.” “If a municipal corporation negligently constructs a system of sewerage or drainage, or negligently maintains one properly constructed, so as to injure private citizens or their property, it will be liable in damages for the injury' thus occasioned.” Langley v. Augusta, 118 Ga. 590, 598 (45 S. E. 486, 98 Am. St. E. 133). The allegation in the petition, that the sidewalk and ditches in front of the plaintiff’s property were, prior to the work done on South Main street, sufficient to carry off the water which naturally flowed down Blanche Avenue, was supported by her'husband’s testimony: “Up to the time the city began to make these improvements on" Main street, the condition of those ditches on each side of Blanche Avenue, as to carrying off the wafer, was that they were kept cleaned out and were thoroughly equipped to take off the water as it ran down along Blanche Avenue, going towards Silver Creek. The water has never run out of Blanche Avenue onto my wife’s lot when the ditches were, clean. Those u-.ches had been sufficient, up until then, to carry all the water that came, except one time, about 6 or 8 years ago. . . After those repairs on Main street began was the first time it had been wet under the house. The brick began to crumble under the house,— began to sink, and the plastering cracked and tore our paper off. The water ran under the house, up three fourths of the way.” The plaintiff testified: Eor 18 years “that ditch served to keep the water away from me. As long as they kept that ditch open it carried all that water off down Blanche Avenue towards Silver Creek. . . The water would not have gotten into my lot if the sidewalk L. 1 not been lowered, and the sidewalk was lowered on account of the traffic, because the East-Borne bridge was closed up, and that is what caused the water to get on my lot. . . The water would stay underneath the house, and it molded my carpets' and mattings, and cracked my walls, and the plastering in , places fell off, and the floors were warped also on account of this water. Those things had never happened before that time. Wagons traveled over the sidewalk—the general public and the city wagons •traveled over it, they did too; in filling up there in the street, filling with crushed rock.” Captain-J. W. Ewing testified:'“I found the sidewalk in front of her [the plaintiff’s] house had been almost eliminated. The baseboard or plank upon which the fence rests is there to show for itself, where it had rotted down, how high the dirt came up on the sidewalk. The sidewalk, I would say, was at least eight or nine inches higher before they began work on South Main street than it is to-day, or than it was when I brought this suit [as attorney for the plaintiff]. The ditch or gutter had all been filled up at the time this suit was brought. It sloped from the middle of the street into her lot; that is, the middle of the street was then higher thañ hér lot in front of her house. The ditch had been filled up and there was a slope into ' her lot, across from the middle of the street. . . The whole trouble, I want to state, is that,—the elimination of that sidewalk. If that sidewalk had not been disturbed, the water would not have gotten over it. Even if the ditch had been filled up, if that sidewalk had been left as it was, the water was bound to have gone on down Blanche Avenue to Silver Creek. I know what reduced that sidewalk. I saw it, saw the heavy wagons going over it, with iron ■ rims on the wheels, and it would pick up the dirt off the sidewalk and carry it off. .Travel was congested at that time. The East Borne bridge was down. . . They didn’t travel Main street, because they could not get along there. I have been there, had trouble getting along there on foot, it was so filled up with wagons, repair wagons for the city or county. They were repairing Main street and putting down rock in the middle of the' street. The City of Borne was doing the work.”

The witnesses W. A. Dance, his wife, W. T. Andrews, and J. W. Ewing'all testified that the market value of the plaintiff’s property had been diminished one half -or piore by reason of the elimination of the sidewalk and ditch in front of her house. ’ There was also evidence from the plaintiff to the effect that the rental value of her property had diminished about one half. She testified also that prior to the flooding of her property with water there were' practically no mosquitoes about the premises, and she had never been'sick with malaria or other disease. Dr. Wicker testified, that malaria "was caused by a mosquito bite; that persons living near the breeding places of mosquitoes were more likely to become inoculated with malarial poison; that he had known the plaintiff ' for a number of years, and that she had never been sick prior to the time she had malaria, and that he attributed her malaria attack to poison from mosquito bites.

As to whether the city had notice of the defective condition of the sidewalk and the ditch in front of his wife’s, house, D.ance testified: “When that gutter got filled up, and with the view of having it cleaned out, I went to Mr. Gammon, after the construction was over with, went to him and asked him—he was our head commissioner then. (Admitted by defendant that Gammon was chief commissioner of the city at that time.) I went to him and complained about it, and he said he would have some men to clean it out. I explained the condition and what caused it, told him they had made a road out of my sidewalk, and that the sidewalk was lower than the street, and the ditch that they had there was filled up, and that I wished he would go there and throw the dirt out of the ditch onto the sidewalk and raise it up, and told him the water was damaging me; and he said, ‘1 will have it done to-morrow.’ I don’t remember the. date when I told him this, but immediately after they finished up so that Main street could be traveled. Two or three days passed and nobody came, and I went to him again, and he said T will send Mr. Booz- out there.’ - No one came, though, and I went back to him, and this time he says, ‘I will have a man out there to-morrow;’ says_T have been pushed up so I have not had a chance to do anything.’ I waited two or three days on him, and there was still nothing doing, and I went to the waterworks hunting for Mr. Booz, but I could not find him, and I left a notice there with the waterworks man where Mr. Booz had his office, and he made a minute of it and. put it on Mr. Booz’s desk, and I left three notices there for him to have it cleaned out, and tíren I went back to Mr. Gammon, and it hadn’t been cleaned out then. . . Went there four times to see him personally, and then I went there and left the notices.”

The contention that the sidewalk in front of the plaintiff’s property was lowered by the public traveling over the sidewalk, and that therefore -the city was not liable, is without merit. " If this contention were legally sound, it would be irreconcilable with the well-settled principle that it is the duty of a municipality to maintain its streets and sewerage systems and keep them in repair so as to prevent damage to owners of abutting property, provided, of course, the municipality has notice or reasonable opportunity or time in which to acquire notice of the defective condition. Langley v. Augusta, supra; Massengale v. Atlanta, 113 Ga. 966 (39 S. E. 578); Mayor &c. of Brunswick v. Tucker, 103 Ga. 233 (29 S. E. 701, 68 Am. St. R. 92); City of Atlanta v. Trussell, 21 Ga. App. 340, 345 (94 S. E. 649).

There being no demurrer to the petition, and the evidence above narrated having tended to prove all the material allegations thereof, the trial judge erred in directing a verdict for the defendant.'

Judgment reversed.

Jenkins and Luke, JJ., concur.


text:
    10224.
    Evitt v. Western & Atlantic Railroad Company.
    Decided April, 17, 1919.
    Action for damages; from Catoosa superior court—Judge Tarver. October 4, 1918.
    In the motion for a new trial it is stated that after the jury had been out for some time the judge recalled them and asked whether they had agreed or were likely to agree upon a verdict. A juror replied: “I don’t know; it don’t look like we are going to get together.” The court: “Is it a question of law or of fact that is disturbing you?” Juror: “A little of both, I reckon. Somehow or another we can’t get convinced just how about the fire.” The court: “It is a question of fact then?” Juror: “Tes, sir.” The court: “If it is a question of fact I could not be of any [help] to you; if a question of Taw I might be'able to help you. Without stating which number favor one side and which the other, you might state how you are divided as to numbers.” Juror: “It is eight to four.” The court: “Has there .been any change very recently?” Juror: “Yes, sir.” The court. “I will let you retire, gentlemen. I want to say this to you: that you ought to go over the evidence as it was delivered from the witness stand, carefully and conscientiously. No juror ought to, surrender any'honest conviction that he may have as to what the truth of the evidence is.
   Luke, J.

1. The charge of the court, when considered as a whole, was full and fair and not subject to the criticisms urged.

2. The fact that in offering certain evidence, which the court, on objection, excluded, the defendant’s counsel stated what he was offering as evidence, and his reasons therefor, was not, in view of the judge’s order refusing to admit the evidence, ground for a new trial.

3. The error assigned upon the conduct of the judge in inquiring of the jury, during their deliberations, if they had made a verdict, etc., was not error for any reason assigned. See Dalton Fruit & Produce Co. v. Puryear, 22 Ga. App. 489 (96 S. E. 344), and cases there cited.

4. The evidence fully sustained the verdict, which had the approval of the trial judge; and for no error assigned is a reversal of the judgment overruling the motion for a new trial required.

Judgment affirmed.

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

' At the same time you ought to view the evidence from every angle, from your fellow’s standpoint as well as from your own; and if, after careful consideration, it is possible for you to arrive at a conscientious verdict, which in your opinion speaks the truth, you ought to do so. You can retire.” It is alleged that the court erred in inquiring how the jury were “divided as to numbers;” that this was an invasion of the province of the jury and tended unduly to induce the four jurors to agree to a verdict; that the question, “Has there been any change very recently?” was objectionable for the same reason; that the court erred in instructing the jury as set out above; that they should, have been sent back without any instruction; that the language of the court pressed them unduly towards finding a verdict, and was misleading as to their duty in making a verdict. Counsel for the plaintiff cited as to these exceptions: Ga. R. v. Cole, 77 Ga. 77, 78; Ala. Great So. R. Co. v. Daffron, 136 Ga. 555. Opposing counsel cited: Dalton Fruit &c. Co. v. Puryear, 22 Ga. App. 489; Chandler v. Stale, 124 Ga. 821(3), 822; Golatt v. State, 130 Ga. 18; Gambo v. Dugas, 145 Ga. 614, and citations.

William E. Mann, Gordon Mann, for plaintiff.

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


text:
    10228.
    Burress et al. v. Montgomery et al.

   Luke, J.

1. Where a contract provides that A, B, and C, individuals undertaking its performance, may be relieved *as such individuals when, upon the organization of a corporation, the contract shall have been transferred to the corporation and its obligations assumed by the corporation, such transfer of the contract and a course of dealings by the opposite party with the corporation, and acceptance of payments and notes of the corporation for liabilities incurred, thereunder, relieve A, B, and C from their individual liability under the contract.

Decided April 17, 1919.

Complaint; from Fulton superior court—Judge Ellis. April 16, 1918.

Burress & Dillard, Horton Brothers, for plaintiffs.

A. E. Wilson, Evins & Moore, for defendants.

(а) Under the evidence in this case the court was authorized to direct that the jury find that there was no individual liability upon the part of the defendants. . • -

(б) There was no evidence that the defendants had ever incurred as individuals any liability to the plaintiff's.

2. The court did not err in directing a verdict in favor of the defendants.

.Judgment affirmed:

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


author: Broyles, P. J.

text:
    10260.
    PARKER v. THE STATE.
    Decided April 12, 1919.
    Rehearing Denied May 16, 1919.
    1. Where an indictment charging larceny of seed-cotton alleges joint ownership in two persons, proof that one of them was the landlord and the other his half-cropper is sufficient to establish the .allegation of joint ownership, where the- undisputed evidence further authorizes a clear inference, that the landlord had been fully paid for all advances made to the cropper in the year the crop was raised, and that at the time of the larceny, -they were each entitled to an undivided half interest in the cotton which was then in the possession of the cropper.^ Under these circumstances the cropper has such an interest in the cotton as will sustain the allegation as to his joint ownership with his landlord of the stolen property. '■ ,
    2. There is no substantial merit in any of the special grounds of the motion for a new trial.
    3. The corpus delicti was sufficiently established.
    4. The evidence was sufficient to show that the cotton, which the defendant admitted came into his possession shortly after the theft was com-' mitted, -was the identical cotton which was the subject-matter of the larceny charged.
    5. The evidence was sufficient to authorize the conviction.
    Accusation of larceny; from city court of Nashville—Judge Christian. November 30, 1918.

      R. A. Hendricks, for plaintiff in error.

      J. H. Gary, solicitor, H. L. Jackson, contra.
   Broyles, P. J.

In Randolph v. State, 16 Ga. App. 328 (85 S. E. 258), the first headnote is as follows: “Where an indictment charging larceny of seed-cotton alleges joint ownership in two persons, proof that one of them was the landlord and the other was his cropper, but that all advancements made to the cropper by the landlord in the year in which the seed-cotton was raised were fully paid, and that at the time of the larceny they were each entitled to an undivided half interest in the cotton, which was then in the possession of the cropper, would sufficiently sustain the allegation of joint ownership; for while the legal title is vested by law in the landlord until fhe has received his part of the crops so raised, and is fully paid for all advances made to the cropper in the year said crops were made to aid in making the said crops’ (Civil Code, § 3706 [3705],), the cropper has such an interest therein as will sustain an allegation as to his joint ownership of the stolen property.’’ In the instant case the indictment charged that the stolen cotton was the property of N. D. Parker and Henry Lynch. Upon the trial the proof showed that the cotton was raised by Henry Lynch and was stolen from the fields, and that Lynch was the half-cropper of N. D. Parker. The undisputed evidence further showed that the defendant, who was a brother of the landlord, subsequently paid Lynch, for'one half of the stolen cotton,■ stating to Lynch at the time that he had bought the cotton from Perry Crowley, and that if Lynch had lost the cotton he desired to pay the owner for it. In addition to this, the undisputed testimony of doe landlord' was that the stolen cotton belonged to him and Lynch—his half-cropper, and that on the day following the larceny he went to Perry Crowley and accused him of taking the cotton, and that Crowley admitted it, stating that he had sold it to the defendant, Turner Parker, but that the defendant had not paid him fot it; and that he (the landlord) then told Crowley that if he would agree for Turner Parker to pay him (the landlord) and Henry Lynch the value of the cotton, and would leave the county and State, he would not prosecute him.

Under these circumstances we think the jury were authorized to infer that all advancements made to the cropper by the landlord in the year in which the cotton was raised had been fully paid, and that at- the time of the larceny they were each entitled to an undivided half interest in the cotton, which was then in the possession of the cropper. This being true, then, under the ruling in the Randolph case, supra, and the authorities there cited, the proof was sufficient to sustain the allegation as to, the joint ownership of the stolen property.

The cotton was stolen from land in the possession of and worked by Henry Lynch, who was the half-cropper of N. D. Parker. It appeared from the testimony of several witnesses for the defense, and from the statement of the defendant to the jury, that on the morning after the alleged larceny the defendant bought some cotton from one Perry Crowley, and that subsequently, on the, same day, Crowley admitted to them that he had taken this cotton from the fields of Henry Lynch. It was also shown that the defendant subsequently paid Lynch for his half interest in this cotton. This evidence was sufficient to authorize the jury to find that the cotton which was in the defendant’s possession and which he claimed was bought from Perry Crowley was the identical cotton which was the' subject-matter of the larceny charged. However, under the evidence in the case, the jury were not compelled to find that this cotton had in fact been honestly bought hy the defendant, as he claimed. It was undisputed in the evidence, and not denied in the-defendant’s statement, that he never paid Crowley anything whatever for the cotton, and' never paid Lynch for his interest therein until after Lynch had sworn out a warrant charging him with the theft thereof. There was further evidence that after the theft of this cotton was discovered the defendant gave Crowley $2 and told him not to stop within 300 miles; and that the defendant carried this cotton to the gin before daylight on the same morning that it was stolen. Under these facts this court can not say, as a matter of law, that the jury were not authorized to find that the defendant had participated in the theft of the cotton and was guilty as a principal. In misdemeanor eases there are no accessories, but all who participate in the commission of such an offense are guilty as principals. Moreover, there was other evidence that the defendant, in a conversation with Crowley (in which he told Crowley that he would give him %y<¿ cents per poupd for all the cotton he could get for him), stated that he (Crowley) need not go to Henry Lynch’s, for he (the defendant) had teen there. The undisputed evidence' was that the seed-cotton stolen from Lynch’s was worth 8 or 10 cents per pound. In the light of these and the other facts of the case, there was a fair inference, arising from this testimony, that the defendant’s rgal proposition to Crowley—so understood by both of them—was that he (the defendant) would pay Crowley cents per pound for all the cotton that Crowley could steal for him, and that he told Crowley, in this connection, in effect, that he need not go to Lynch’s, for the reason that he (the defendant) had already been there and stolen Lynch’s cotton. As this confession was corroborated by proof of the corpus. delicti, and by proof that the stolen cotton, shortly after the theft, was found in the possession of the defendant," the jury were, authorized to find that the defendant was the actual perpetrator of the crime. It is true that the defendant denied making any confession to Crowley about having been to Lynch’s, and denied that after the theft was discovered he had given money to Crowley and told him not to stop.within 300 miles. It is also true that in these particulars Crowley’s testimony was uncorroborated by any other evidence in the case; nevertheless it was within the province of the jury to believe Crowley and to take his unsupported testimony in preference to the other evidence and the defendant’s statement. In misdemeanor cases the. testimony of an accomplice does not require corroboration. The conviction of the defendant was authorized by the evidence, and, no error of láw appearing, this court is without authority to interfere. ■

Judgment affirmed.

Bloodworth and Stephens, JJ., concur. .


text:
    9933.
    HICKS v. SOUTHERN RAILWAY COMPANY.
    Decided April 17, 1919.
    Rehearing Denied Mat 13, 1919.
    Under the allegations of the petition, negligence of the railway company, in failing to heat and to keep in proper condition the heating apparatus of the mail-car in which the plaintiff was working as a postal clerk-in cold weather, did not entitle him to recover damages for resulting illness, it appearing that he took the risk of working in the car with knowledge of its condition.
    (Certiorari granted by the Supreme Court.)
    Action for damages; from Pulton superior court—Judge Pendleton. ' June 6, 1918.

      Edgar Latham, for plaintiff, cited:

      Atlantic Coast Line R. Co. v. Powell, 127 Ga. 805; Southern Ry. Co. v. Harrington, 166 Ala. 630;. 5 Ruling Case Law, § 686, p. 44..

      McDaniel & Blade, for defendant, cited:
    Hopkins, Pers. Inj., § 206, and cases cited in the decision; Civil Code (1910), §§ 4426, 4506.
   Wade, C. J.

The plaintiff sued the Southern Bailway Company for damages, alleging: That he was employed by the United States as a railway postal clerk, and was engaged in the performance of his duties as such on January 10th, 11th, and 12th, 1918, being assigned to defendant’s ear No. 234, which was a mail-ear; that the weather was then very cold—between 10 and 15 degrees above zero—and that the said car in which he was working was not heated; that this condition was reported to certain conductors, engineers, flagmen, and porters of the defendant; that the defendant’s agents and employees failed and refused to heat the car, saying it was out of fix; that the defendant failed to repair the car, and the steam pipes gave out no heat, and it was very cold in the car, causing the plaintiff to become ill as a result of exposure. It was alleged that the defendant was negligent “in that said car was out of repair and the heating apparatus was out of repair, in a manner not known to petitioner, and in a manner that could have been known to defendant had its agents made investigation, and said agents refused to make any investigation of said car or any investigation whatever, and refused to repair the same;” and that “defendant violated its duty to provide heat for said car, it being the duty of defendant to heat mail cars in the same manner as other passenger-cars.” • It was further alleged that the petitioner “was without fault in the premises, and could not have avoided the injuries by the exercise of ordinary care.” The defendant demurred to the petition, on the ground that it did not set out a cause *of action. The demurrer was sustained and the petition dismissed, and the plaintiff excepts.

We think a fair construction of the petition under review shows conclusively that the plaintiff was made ill as the result of his own negligence in working three extremely cold days in a ear that was not heated, when he must have known, as a reasonably prudent man, that such exposure was likely to cause him injury. He was fully aware of the unsafe condition of the car in which he voluntarily placed himself. It is well settled that a person cannot recover damages from a railroad company for injuries to himself where they were caused by his own negligence, or where by the exercise of ■ ordinary care he could have avoided the consequences to himself caused by the negligence of the defendant. The doctrine of contributory or. comparative negligence, of force in this State, does not apply where the plaintiff’s own negligence was the sole cause of the injury, or where by the exercise of ordinary care he could have avoided the consequences to himself caused by the defendant’s negligence. See Western & Atlantic Railroad v. Blooming dale, 74 Ga. 604; Smith v. Central R. Co., 83 Ga. 801 (10 S. E. 111); Central R. Co. v. Denson, 84 Ga. 774, 785 (11 S. E. 1039); Williams v. Southern Ry. Co., 136 Ga. 710, 713 (55 S. E. 948). The law imposed upon the plaintiff the duty of avoiding the negligence of which he fully knew; and since he did not avoid it, he failed to use ordinary care for his own safety. This lack of ordinary care on his part made him the architect of his own misfortune. In other words, his negligence was, as a matter of law, the proximate cause of his injuries. The fact that the defendant company was likewise negligent did not lessen the legal duty resting upon him to exercise ordinary care for his own safety. Civil Code (1910), § 4436; Simmons v. Seaboard Air-Line Ry., 130 Ga. 335 (47 S. E. 570, 1 Ann. Cas. 777); Hill v. Louisville & Nashville R. Co., 134 Ga. 343, 345 (53 S. E. 651, 3 L. R. A. (N. S.) 433); Turley v. Atlanta &c. Ry. Co., 137 Ga. 594, 597 (56 S. E. 748, 8 L. R. A. (N. S.) 695).

The ease of Atlantic Coast Line R. Co. v. Powell, 137 Ga. 805 (56 S. E. 1006, 9 L. R. A. (N. S.) 969, 9 Ann. Cas. 953), is clearly distinguishable on its facts from the case under consideration. In that case the plaintiff’s petition showed that she was transported as a passenger in a car which was not heated, although the weather was extremely cold, and in consequence of the failure to heat the car she contracted a severe illness, on account of which she brought suit. These facts are similar to the facts in the instant case, but it further appears in that case that the plaintiff “suffered as a result of the cold Tn a few moments after the train left Albany,’ ” at which place she entered the car. She was warranted in assuming before she entered the coach that it was properly heated, and could only have discovered the contrary through her physical sensations, or from inquiry, after she c.ame into the car and when the train must have already left the station. The distinct allegation is thát she contracted the cold which caused the injury to her health “in a few moments” after she had entered the coach, and it does not appear that if she had been able to do so and had left the train after making the discovery that the car was not heated, the same consequences would not have resulted to her, as she had already contracted the cold. In the case now under consideration the plaintiff must have discovered on the 10th of January that the car in which he was expected to work was not heated, but notwithstanding this he ^voluntarily entered the car and remained therein throughout that trip, and again made a trip in the same car, which he knew to be in the same condition, on the 11th and on the 12th, and in fact he alleges in his petition that on the 12th, “prior to the departure of the train for Birmingham,” he reported the condition to the inspector of the defendant company, but nevertheless, with full knowledge of this defective condition, he again entered the coach and remained therein, though he knew that the weather was extremely cold and that, the car was not heated throughout the entire trip from Atlanta to Birmingham. The petition is somewhat vague as to the time when the plaintiff reported to the conductors, engineers, etc., the lack of heat in the car, or when they declined to heat it, for the reason “it was out of fix and they did not know what to do;” but it must be inferred that the refusal to repair the car was at least made prior to the last trip undertaken by the plaintiff on the 12th, and therefore he must have known when he entered the coach on that date not only that the heating apparatus in the car was out of repair, but that no attempt would be made by the employees of the defendant company to remove the trouble. It is not alleged, as in the Powell case, supra, that the plaintiff contracted the illness for which he brought suit immediately or in a few moments after entering the frigid coach on the 10th, the first named date, but his illness resulted from the cold to which he was subjected during the three-days period between the 10th and 12th inclusive, and, so far as the allegations disclose, may have been brought about altogether from the low temperature of the car on the 12th, or perhaps on the 11th, after he had full opportunity, by reason of his journey in the same car on the 10th, to ascertain all the conditions and circumstances and to fully realize the danger to which he would expose himself by again traveling in the unheated coach.

Generally speaking, ordinary care is, of course, a question for determination by a jury, but where a petition (as does the petition in this ease) discloses facts which show, as a matter of law, that no other legal conclusion could be reached save that the facts complained of constitute a lack of ordinary care, it is the duty of the court so to hold.

The trial court therefore did not err in sustaining the demurrer' and dismissing the suit.

Judgment affvrmed.

Jenkins and Luke, JJ., concur.