text:
    8270.
    Steinhauer & Wight Incorporated v. Adair.
   Jenkins, J.

1. The rule of law which does not permit a defendant in trover suit to set up damages by way of recoupment, even though growing out of the same contract, except where some special equity exists therefor, such as the non-residence or insolvency of the plaintiff (Bell v. Ober etc. Co., 111 Ga. 668, 36 S. E. 904; Harden v. Lang, 110 Ga. 392, 36 S. E. 100; Barrow v. Mallory, 89 Ga. 76, 14 S. E. 878), does not preclude a defendant in bail-trover where he, claiming title to the property sued for, prevails in the suit, from exercising his right to take a money judgment, in lieu of the property, against the plaintiff and the surety on the statutory bond given by the plaintiff. Thus, where in such a suit for the recovery of personal property the defendant in his answer claims title to the property by reason of a purchase from the plaintiff, and claims that under the contract of purchase a portion of the agreed price has been paid and the remainder, thereof has been tendered, and elects to take a money verdict, a finding for him in the amount of such payment, upon which judgment is rendered against the plaintiff and his surety on the statutory bond, is not contrary to •law. Lauchheimer v. Jacobs, 126 Ga. 261 (5) (55 S. E. 55); Bank of Blakely v. Cobb, 5 Ga. App. 289 (63 S. E. 24) ; Underwood Typewriter Co. v. Veal, 12 Ga. App. 11 (76 S. E. 645) ; Holmes v. Langston, 110 Ga. 867 (2) (36 S. F. 251).

2. Where, after the institution of such a suit and the giving by the plaintiff of the bond with security as provided for in such cases, the plaintiff is adjudged a bankrupt, such adjudication, or even a discharge in bankruptcy, would not operate to defeat the right of the defendant to recover of the surety on the bond. Such an adjudication or discharge in bankruptcy as to the plaintiff will not prevent a judgment against him together with the surety On the bond, even though as against the principal it could be enforced, the only effect of such judgment being to charge the surety with liability on the bond. King v. Central Bank, 6 Ga. 257; Phillips v. Solomon, 42 Ga. 192; Id. 520; U. S. Fidelity & Guaranty Co. v. Murphy, 4 Ga. App. 13 (4) (60 S. E. 831); Kaminsky; v. Horrigan, 2 Ga. App. 332 (4) (58 S. E. 497) ; Abendroth v. Van Dolsen, 131 U. S. 66 (5) (9 Sup. Ct. 619, 33 L. ed. 57); Brown & Brown Coal Co. v. Antezak, 164 Mich. 110 (128 N. W. 774, 130 N. W. 305, Ann. Cas. 1912B, 778, 25 Am. Bk. R. 898); Butterick v. Bowen Co., 33 R. I. 40 (80 Atl. 227, 26 Am. Bk. R. 718) ; Tormey v. Miller, 31 Cal. App. 469 (160 Pac. 858, 38 Am. Bk. R. 315). The practice pursued by the defendant in this ease, by which he sought and obtained-a stay of the discharge of plaintiff in the bankrupt court, was proper; and the admission in evidence of such proceeding was not erroneous. In re Maher, 169 Fed. 997 (22 Am. Bk. R. 290); In re Phillips, 224 Fed. 628 (34 Am. Bk. R. 877).

3. The admission of evidence complained of in the first special ground of the motion for new trial, though its admissibility was doubtful (the defendant being thus permitted to show how he came to meet with the alleged agent of the plaintiff), was not harmful error requiring a reversal, especially as there was some testimony inferentially tending to connect the plaintiff with the advertisement testified to.

4. Exception is taken to the admission of testimony of the defendant, reciting conversations between him and two of the admitted agents and employees of the plaintiff, in which it was disclosed to them by the defendant in the presence of Thomas, the person with whom the transaction was actually effected, that the defendant was about to buy from or through Thomas the car for which the suit was brought. The objection to this evidence was on the ground that the agency of Thomas could not thus be shown either by the declaration of, or by such notice to, another agent of the principal. While it is true that “agency can not be proved by the declaration of another agent of the same principal, made to the witness, unless it appears that the latter agent was authorized by the principal to make the declaration, or that it was made as a part of the res geste in the performance of some duty appertaining to his agency” (Hirsch v. Oliver, 91 Ga. 554 (6), 555, 18 S. E. 354), still, under the evidence of Steinhauer, the president of the plaintiff corporation, these same facts were likewise made known to him by the defendant. Steinhauer admitted that prior to the sale by Thomas, whose agency he now disputes, he met the defendant and Thomas out testing the ear, and that he inferred therefrbm that it was the defendant’s purpose to buy the car, and that prior to the purchase the defendant made inquiry of him .as to its condition; and he admitted that the defendant may have then told him, as claimed, that he was negotiating the purchase from Thomas. Thus, since the only effect of the evidence complained of was to establish a state of facts which the plaintiff admitted to be true, the admission of such testimony can not be held to be harmful error.

Decided August 3, 1917.

Trover; from Fulton superior court—Judge Bell. September 22, 1916.

Edgar A. Neely, for plaintiff. Dodd & Dood, for defendant.

5. The other grounds of the motion for new trial are without merit.

Judgment affirmed.

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


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
    8287.
    Turner v. Strauss-Epstein Company.
   Jenkins, J.

1. Unless there has been a final determination of the case in the court below, a writ of error will not lie to an order striking a plea, even though the effect oí such order may be to entitle the plaintiff to a judgment or verdict as matter of course (Johnson v. Battle, 120 Ga. 649, 48 S. E. 128) ; and even where it appears that final judgment has in fact been rendered, in order that exception may be • taken to the sustaining of a demurrer followed by the striking of defendant’s plea, error must also be assigned on the final judgment rendered. McCranie v. Shipp, 10 Ga. App. 544; Lyndon v. Georgia Ry. & El. Co., 129 Ga. 353.

2. Under the rule announced in Harvey v. Bowles, 112 Ga. 422 (37 S. E. 364), this court in such case will not grant an application for leave to file in the court below, as exceptions pendente lite, a copy of the original bill of exceptions, where it appears that the answer as amended is without merit.

3. The agreement set up by the plea, that the payee of the note obligated himself not to bring suit thereon, should have been in writing, in order to furnish a valid defense as a covenant equivalent to release within the meaning of section 430S of the Civil Code of 1910. Mansfield v. Barker, 59 Ga. 851; Dendy v. Gamble, 59 Ga. 434; Dinkler v. Baer, 92 Ga. 432 (17 S. E. 953); Johnson v. Cobb, 100 Ga. 139 (28 S. E. 72) ; Lunsford v. Malsby, 101 Ga. 39 (28 S. E. 496) ; Marietta Savings Bank v. Janes, 66 Ga. 286; Crooker v. Hamilton, 3 Ga. App. 190 (59 S. E. 722). Under the ruling made in Johnson v. Cobb, supra, it would seem that the plea itself should show that such agreement was in writing; but, however this may be, a fair interpretation of the amended plea shows that such was not the ease, and that the defendant relied upon a contemporaneous parol agreement never to sue. The plea of failure of consideration was but an amplification of the defense already referred to; and the additional plea, alleging that such stipulation was omitted from the writing by fraud practiced upon the defendant by the payee, does not meet the requirements of law as laid down by numerous decisions of the Supreme Court and of this' court. See Hart v. Waldo, 117 Ga. 590 (43 S. E. 998), and cases therein cited. Writ of error dismissed. Broyles, P. J., and Bloodworth, J., concur.

Decided August 3, 1917.

Complaint; from DeKalb superior court—Judge Smith. June 10, 1916.

Paul L. Lindsay, for plaintiff in error.

Foster & Stoclcbridge, contra.


text:
    8293.
    Newton v. Coe-Mortimer Company.
    .Decided August-3, 1917.
   Jenkins, J.

1. Where a farmer orders by letter, written in Georgia, commercial fertilizers for his own use, to be sent to Mm from South Carolina by a dealer in that State, and the goods are accordingly shipped by railroad from South Carolina to Georgia, and thereupon notes for the price are executed in Georgia and sent to South Carolina, the sale of the fertilizers is completed in South Carolina, and the law of Georgia relative to the tagging and branding of such commodities (act of August 22, 1911, 1 Park’s Ann. Code, § 1778 (a) et seq.) has no application to the transaction. By the terms of that act its provisions apply only to sales made in this State. See Atlantic Phosphate Co. v. Ely, 82 Ga. 438 (9 S. E. 170). The rule stated above, as to the place of the contract, is not altered by. the fact that prior to the sending of the letter by the purchaser be had written for. and received from the seller a description, of the fex-tilizers, with the prices.. While it is possible that an actual offer might be so made as to allow the offeree to determine the quantity and particular commodity which by the acceptance would constitute a-valid contract, still an invitation to enter into negotiation is not an offer which can be converted into a contract by acceptance; and whether certain acts or conduct constitute a definite proposal upon which a binding contract may be predicated, or is merely a preliminary step, depends upon the nature of the particular acts or conduct and the circumstances surrounding the transaction. 6 R. C. L. 600, § 23.

2. Eor the reason stated above, there could'have been no error in directing a verdict for the plaintiff and against the plea of the defendant.

.Judgment‘-affirmed.

Broyles, P..J.f dnd Bloodworth,-J'., concur.

Complaint; from Toombs superior court—Judge Hardeman. March 1, 1916.

Sines & J or dan, for plaintiff in error.

6. TF. Lankford, contra.


author: Bloodworth, J.

text:
    8520.
    BEAN v. LEGGETT.
    The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.
    Decided August 3, 1917.
    Complaint; from city court of Hazlehurst—Judge S. D. Dell. December 30, 1916.

      Bennett & Swain, for plaintiff in error.

      S. B. McCall, W. T. Burkhalter, contra.
   Bloodworth, J.

1. This was a suit against a married woman, on a note given for an automobile. She filed a plea in which she admitted signing the note, but alleged that the debt for which the note was given was that of her husband. In his charge the judge fully and fairly submitted this issue to the jury, who found in favor of the plaintiff. There was evidence to support the verdict. "This court has no power to determine that the preponderance of the evidence is in favor of one party to a cause rather than the other, or to award a new trial in any case where there is any evidence sufficient to support the verdict rendered.” Bunn v. Hargraves, 3 Ca. App. 518 (4) (60 S. E. 223).

2. There is no merit in the grounds of the amendment to the motion for a new trial.

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.


author: Broyles, B. J.

text:
    8730.
    Elkins v. Merritt.
   Broyles, B. J.

1. Eixing new lines is not within the power of processioners. Their vocation is to seek and find lines already existing, and to run and mark them again. Amos v. Parker, 88 Ga. 754 (16 S. E. 200); Wheeler v. Thomas, 139 Ga. 598 (77 S. E. 817); Civil Code (1910), § 3818 et se<p There was some evidence in this case, however, that the line established by the proeessioners was an old line already existing.

2. A parol agreement between two adjoining landowners that a certain road should be the dividing line between them is valid and binding as between them, if the agreement is accompanied by possession of the agreed line or is otherwise duly executed, and if the boundary line between the two tracts is indefinite, unascertained, or disputed. Farr v. Woolfolk, 118 Ga. 277 (45 S. E. 230). See also Cleveland v. Treadwell, 68 Ga. 835.

Decided August 3, 1917.

Processioning; from Grady superior court—Judge Cox. October 5, 1916.

L. W. Rigsby, for plaintiff.

Roscoe Luke, M. L. Ledford, for defendant.

3. Under the foregoing rulings and the facts of this case, it should have been submitted to the jury, and the court erred in dismissing the processioning proceedings.

Judgment reversed.

■Jenkins and Bloodworth, JJ., concur.


author: Broyles, P. J.

text:
    8734.
    Cartledge v. Brandon, administrator, et al.

    Decided August 3, 1917.
    Processioning; from Bichmond superior court—Judge Henry C. Hammond. March 17, 1917.

      I. 8. Peebles Jr., for plaintiff in error. 8. H. Myers, contra. ■
   Broyles, P. J.

When this case was before the Supreme Court (Cartledge v. Beago, 141 Ga. 113, 80 S. E. 290), it was held that under the evidence submitted, the return of the proeessioners was not according to the statute (Civil Code of 1910, § 3818 et seq.), and that the verdict in favor of the applicants was contrary to law and the evidence; and the judgment of the lower court was accordingly reversed. On the subsequent trial, now under review, there was some evidence which authorized the jury’s finding that the line established by the processioners was the correct line; and, this finding having been approved by the trial judge, and the motion for a new trial containing only the usual general grounds, this court has no authority to control the discretion of the judge in refusing to grant a new trial.

Judgment affirmed.

Jenkins and Bloodworth, JJ., eoneur.


text:
    8758.
    Garrett, sheriff, et al. v. Williams & McCollister.
   Broyles, P. J.

This was a proceeding brought by the sheriff of Carroll county for the purpose of obtaining direction by a rule for the distribution of money in his hands, arising from a sale under a mortgage fi. fa. in favor of Williams & McCollister against Milton Barker, the fund being claimed by other fi. fas. placed in the sheriff’s hands. Under all the facts of the case it does not appear that the court, sitting without the intervention of a jury, erred in holding that the claim of Williams & McCollister was entitled to be first satisfied out of the fund, and that the balance, if any, should be paid to the Peoples Bank.

Decided August 3, 1917.

Money rule; from city court of Carrollton—Judge Beall. February 15, 1917.

Tí. D. Jackson, for plaintiffs in error.

Buford Boykin, contra.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


author: Bboyles, P. J.

text:
    8833.
    Evans v. Farmers & Merchants Bank. Reece v. Farmers & Merchants Bank.
    Decided August 3, 1917.
    Complaint; from White superior court—Judge J. B. Jones. April 9, 1917.

      G. 8. Kytle, G. E. Edwards, B. P. Gaillard Jr., for plaintiff in error. Underwood & Henderson, W. A. Charters, contra.
    8836.
   Bboyles, P. J.

Under the ruling in Sloan v. Farmers & Merchants Bank, ante, 123 (92 S. E. 893), the court did not err in sustaining the demurrer to the amended answer and striking it, or in thereafter directing a verdict for the plaintiff for the full amount sued for.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


text:
    8859.
    Wiggins & Parker v. McCalla.
    Decided August 3, 1917.
   Bboyles, P. J.

1. The facts of the ease do not show that the trial judge abused his discretion in calling it out of its regular order on the calendar, it appearing that it was called on the day' on which it was assigned for trial.

2. In a suit where the petition alleges that the defendant is a partnership, and_ there is no special plea of no partnership, it is not ineumbent upon the plaintiff to prove the fact of partnership. Civil Code (1910), § 3166. ’

(a) A plea which merely “denies” that paragraph of the petition which alleges the fact of partnership is insufficient as a plea of no partnership. Crockett v. Garrard, 4 Ga. App. 360 (2 d) (61 S. E. 552).

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

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.

Complaint; from Liberty superior court—Judge Sheppard. March 24, 1917.

O. G. Darsey, for plaintiffs in error.

Ben. A. Way, 8. B. Brewton, contra.


text:
    8868.
    Chastain v. Barwick.
    Decided August 3, 1917.
    Complaint; from city court of Cairo—Judge Willie. January 20, 1917.
    Lib Barwick sued Chastain on a .promissory note, payable to the plaintiff, for $159 and interest. The defendant, in his answer, admitted the execution of the note, alleged that before and on the date of signing the note the plaintiff was owing him $652.50, for money and property which the plaintiff had received from him, and further pleaded as follows: “4. Defendant further says that plaintiff paid defendant said sum on the date, and said note was given for the reasons and purposes hereinafter stated. 5. That said plaintiff had sold to a negro named Tom Beaman a horse for the sum of $100, and that said horse was unpaid for, and that L. L. Barwick, brother of plaintiff, had bought said horse and had become paymaster for same. 6.. Plaintiff, Lib Barwick, stated to defendant that L. L. Barwick owed him, Lib Barwick, the $100 for the horse which he transferred to defendant, and that L. L. Barwick would pay defendant upon demand. 7. Defendant further says that the plaintiff had in his possession corn, hay, and cottonseed of the probable value of $60, belonging to defendant, which plaintiff was to check up and enter as credit on this note when amount was ascertained, .which was left to plaintiff to do, as lie claimed to have record of it at home. 8. Defendant says that when he called on L. L. Barwick fo,r the $100 which he was to pay-as a payment upon said note, the said L. L. Barwick denied owing him, L. L. Barwick [ ?], that sum or any other sum, and said that Lib Barwick was owing.him, L. L. Barwick, and said that there was a settlement to be had between them, Lib Barwick and L. L- Bar-wick, and for that reason positively refused to pay said sum. 9. Defendant further says that had said sum of $100 beenpaid.by L. L. Barwick as stated by Lib Barwick that he would do^'and the said checking of the property herein named and credit entered, th,at' said note would have been fully satisfied, and defendant, says for the reasons herein stated that said note is and should be satisfied. Wherefore defendant prays he be given credit for the account of $100 and for the corn, hay, and cottonseed of value of $60 upon said note, and that he be discharged with costs.”'
   Bboyles, P. J.

1. In an action upon a promissory note, between the original parties to the contract, the defendant may plead a partial failure of the consideration upon which the contract was founded. Civil Code (1910), § 5675.

2. Applying this principle of law to the facts of the case at bar, the court erred in. striking, upon an oral motion, paragraphs 4, 5, 6, 8, and 9 of the defendant’s plea.

3. The error in striking portions of the answer rendered nugatory the further proceedings in the case.

Judgment reversed.

Jerilcins and Bloodmorth, JJ., concur.

'Ledford & Christopher, for plaintiff in error.

•Q. Smith, contra.


text:
    8904.
    Interstate Chemical Corporation v. Ivey Company.
    Decided August 3, 1917.
    Complaint; from city court of Macon—Judge Mathews presiding. March 27, 1917.

      Minter Wimberly, Jesse Harris, for plaintiff in error.,

      Ellis & Clawson, contra.
   Broyles, P. J.

Under the evidence submitted there was no contested issue . of fact, and a verdict for the plaintiff was demanded. The court, therefore, did not err in directing a verdict for the plaintiff.

.Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


text:
    8920.
    Bank of LaFayette v. Wardlaw.
   Broyles, P. J.

. 1. Money in court, on a rule for its distribution, must be applied, as far as it goes, to the oldest lien that has attached to it, if there be nothing to affect the validity of the lien. Thomson v. McCordel, 27 Ga. 273.

2. Although the lien of a judgment against a shareholder in a corporation does not attach to the stock upon the rendition of the judgment, so as to prevent the transfer or alienation of the stock (Fidelity & Deposit Co. v. Exchange Bank, 100 Ga. 619, 624, 28 S. E. 393; Owens v. Atlanta Trust & Banking Co., 122 Ga. 521, 50 S. E. 379), yet in a money-rule contest between two judgments over a fund derived from the sale of stock in a corporation, the older judgment does not lose its priority because its fi. fa. was not levied on the stock, while the fi. fa. based on the younger judgment was so levied.

Decided August 3, 1917.

Money rule; from Walker superior court—Judge Wright. April 23, 1917.

ShaUuck & Shaiiuch, for plaintiff in error.

Rosser & Shaw, contra.

3. The fact that the fi. fa. on the senior judgment was not issued and recorded until after the fi. fa. on the junior judgment had been issued and recorded does not affect the priority of the older judgment. Griffith v. Posey, 98 Ga. 475 (25 S. E. 515).

4. An indorser, even though he be an accommodation indorser only, is a surety (Civil Code of 1910, § 3541), and a creditor who holds an execution against both principal and surety may, at his election, proceed against the property of either. Manry v. Shepperd, 57 Ga. 68; Jordan v. Farmers & Merchants Bank, 5 Ga. App. 244 (3) (62 S. E. 1024).

5. The court did not err in adjudging that the creditor holding the older judgment was entitled to the fund.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


author: Wade, 0. J.

text:
    8610.
    HENRY v. THE STATE.
    1. Sections 6094, 6095, 6096, and 6097 of the Civil Code of 1910 all relate to the trial of cases in' which new trials have been granted, and they must be construed together. Where a motion for a new trial is granted in vacation by a. judge of the superior court, the case will stand for trial at the next term thereafter, but where the motion is granted during a session of the court, the case stands for trial at that term, subject to the rules for continuances, laid down in the code.
    2. The court did not err in overruling a challenge to the array, based upon the ground'that certain tales jurors selected by the sheriff to fill out the panel put upon the accused were selected, not from among those actually present in the court-room when he made his selections, but from a list of qualified jurors furnished him by the clerk of the court, it not appearing that the clerk was himself seeking to select the jurors, or that either the clerk or the sheriff was actuated by any improper motive. or that the defendant was in fact harmed thereby.
    3. The court did not err in excluding negative testimony to the effect that certain witnesses were acquainted with the defendant, had visited his place of business frequently, and from their knowledge of him and his business did not .believe he was guilty of the offense charged against him.
    4. The evidence for the State authorized the verdict, and this court has no jurisdiction to pass upon the comparative veracity of the witnesses heard at the trial
    Decided August 3, 1917.
    Accusation of sale of liquor; from Glynn superior court—Judge Highsmith. February 24, 1917.

      Frank H. Harris, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, contra.
   Wade, 0. J.

The defendant was convicted at the December term, 1915, of the superior court, and during that term made a motion for a new trial, which was finally perfected and came on to be heard at the December term, 1916, at which time the motion was granted, and thereupon, during the same term, the presiding judge called the case for trial, required the defendant to announce, and, over his objection, proceeded with the trial. Exceptions pendente lite were filed, and error is assigned thereon in the final bill of exceptions, it being insisted that under the provisions of the Civil Code of 1910, § 6094, the case was not ripe for trial at the term during which a new trial was granted in the superior court, but that by operation of law the case went over to the next ensuing term thereafter. That section of the code is as follows: “When a new trial has been granted by the superior court, the case shall stand on the docket for trial at the next term as though no trial was had, subject to the rules for continuances provided in this code.” The act of 1892 (Ga. L. 1892, p. 103, sections 1, 2, ,3), codified in sections 6095, 6096, 6097 of the Civil Code of 1910, by its terms relates to cases decided by the Supreme Court which are not finally disposed of in that court, but are remanded to the trial court for some further proceedings. All the sections referred to, however, relate to the trial or hearing of cases in which. a judgment previously rendered by the trial court has been set aside or modified, and, generally speaking, relate to “the trial” of cases where a new trial or new hearing has been granted. This being true, there appears to be no sound reason for holding that while cases decided by the Supreme Court in which a new trial is granted, • where the lower court is in session when such decision is made, “shall stand for trial during-such term of the lower court,” yet in cases in which a new trial is granted by the superior court during a regular session thereof, the case shall not stand for trial during that term, if objection is made by either party, but must by operation of law “stand on the docket for trial at the next term” thereafter. There is no apparent reason why a different rule should be applied in such cases. We therefore construe the provision in section 6094, which declares that the case shall stand on the docket-for trial at the “next term,” where a new trial has been granted by the superior court, as specifically intended to refer to new trials granted by a trial court in vacation, in which event the case would stand for trial at the “next term, . . subject to the rules for continuances” provided in the code.

If the judge of the superior court should grant a new trial during a session of the court, and thereupon call the case for trial without affording the defendant a sufficient opportunity to prepare for trial, his action in pressing the case to trial would, as in other cases, be subject to review, to determine if he had abused the discretion vested in him by law. In this case it does not appear from the record that the action of the court in forcing the accused to trial during the term at which a new trial had been granted in the superior court was for any reason harmful to the defendant, and hence it can not be held that the trial judge abused his discretion. It is insisted by the plaintiff in error that section 6094 is mandatory, and he simply plants himself upon the proposition that under the law the ease was not ripe for trial during the term at which a new trial had been granted. Sections 6094, 6095, 6096, and 6097 all relate, as stated, to the trial of cases in which new trials have been granted either by the superior court or the Supreme Court, and must be construed together and given a reasonable intendment, and, as already stated, there can be no reason why a different rule should obtain as to new trials granted by the Supreme Court and new trials granted by the superior courts; and we therefore hold that the provision of section 6094 as to trial a.t the next term is intended to apply only to new trials granted in vacation. And therefore, since no abuse of discretion appears, the court did not err in declining to continue the case until the next term, merely for the reason that a motion for a new trial had previously been granted the defendant during the same term of the superior court. It may be added that the record discloses that several days elapsed between the grant of the new trial on January 12, 1917, and the new trial itself on January 17 thereafter.

The defendant challenged the array of jurors, “upon the ground that a number of said panel had not been drawn as jurors from the box, nor caught up as tales jurors according to law, from the casual disinterested bystanders, but that the sheriff’s deputy had obtained from the clerk of said court a list of the jurors who had served during the preceding week, and then been legally discharged as such jurors, some of said discharged jurors being in court, and from that list and of and from that discharged jury caught- said talesmen, to complete the panel of said twenty-four put upon defendant.” There is no merit in this assignment of error. In the first place, it does not appear that the talesmen objected to, for the reason that the sheriff had^ selected them from a list furnished him by the clerk of the court, were for any other reason disqualified to serve. The mere fact that the sheriff, in his effort to procure a sufficient number of qualified talesmen to complete the panel, applied to the clerk for, or received -from him, either a partial or complete list of qualified jurors, and from this list himself selected (without apparent suggestion or dictation from the clerk or any other person) jurors whose names appeared-thereon, and who, so far as appears, chanced to be present in the court-house as casual bystanders, can not be a sufficient ground for challenge. While the picking of jurors to suit particular cases, in deference to public sentiment, or on account of the preference that the officer selecting the jurors may entertain as to the conviction or acquittal of the accused, can not, óf course, be too strongly disapproved, yet after all, if the selection be made from those present in the court-house at the time it becomes necessary to fill the panel by summoning talesmen who are legally qualified to serve, it is for the officer charged with the duty of filling the panel to determine what particular qualified persons present shall be selected; and in this case it must be assumed, since nothing appears to the contrary, that the officer was prompted by proper motives in choosing the talesmen objected to.

The court did not err in excluding testimony of several witnesses to the effect that they had frequently visited the defendant’s place of business, and that from their observation it was their opinion that he was not conducting a “blind-tiger,” or selling liquor at his restaurant. No comment on the various grounds of the motion for a new trial complaining of the rejection of testimony of this character is necessary.

The remaining grounds of the motion for a new trial merely amplify the general grounds, and it is enough to say that a jury of the vicinage, who heard the testimony of the witnesses for the State and perhaps were acquainted with the defendant, and who heard his statement denying his guilt, acting under their oaths, found him guilty. This court is not a court for reviewing findings of fact, where there is some evidence to sustain the verdict; and hence we can have no proper concern with the question whether the defendant is a man of good or bad character, or whether the witnesses be paid informers, criminals of the lowest type, or men of the highest reputation. The evidence for the State authorized the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., concur.


author: Wade, C. J.

text:
    8840.
    Littleton v. The State.
   Wade, C. J.

1. The defendant was charged with having in her possession at one and the same time three quarts of whisky and thirty-nine bottles of beer, in violation of the prohibition laws of this State. The testimony showed that this exact quantity of intoxicants was found in her apparent possession, and, according to one witness, the defendant herself admitted, at the time her premises were searched, that one quart of whisky and a box of beer (shown to contain thirty-nine bottles) belonged to her. The evidence, therefore, authorized the verdict.

2. Testimony as to the existence of a push-button in Wilson’s .store, to which was attached a wire leading to the room of the defendant in the same building, was relevant, in view of testimony that people were seen “going in and out of Wilson’s store appearing to be drinking,” as tending to sustain the theory that considerable quantities of intoxicating liquors were stored in this building in the room of the defendant and that she was the custodian thereof, and therefore of the particular intoxicants found in her room.-

3. The admission of testimonv that a witness had seen the defendant drunk on the streets before the time of the raid will not require the grant of a. new trial. The fact- that the defendant was seen in this condition at least established her familiarity with and use of intoxicants, and tended to corroborate the testimony as to the presence of the intoxicants alleged to have been found in her room and their ownership by her, since it is more reasonable to infer that a drinking person would keep intoxicants in his or her possession than one unaccustomed to their use.

Decided August 3, 1917.

Accusation of misdemeanor; from city court of Columbus— Judge Tigner. April 14, 1917.

B. Terry, S. T. Pinkston, C. D. Smith, for plaintiff in error.

T. H. Port, solicitor, contra.

4. The trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Lulce, JJ., concur.


text:
    8855.
    ANDERSON v. THE STATE.
    The evidence authorized a finding that the accused sold intoxicating liquor, and that the liquor vas whisky, as charged in the accusation.
    Decided August 3, 1917.
    Accusation of misdemeanor; from city court of Dublin—Judge Elynt. April 17, 1917.

      T. P. Hightower, for plaintiff in error.

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

The accusation charged the defendant with a misdemeanor, in that he did unlawfully “sell whisky.” There was evidence from which the jury could infer that the intoxicating liquor sold was whisky, and not “gin,” as contended by the accused. The- testimony of several witnesses for the State referred to the liquor sold as “whisky,” it was testified that the defendant sold it as whisky, and one witness said “it was gin whisky;” and, notwithstanding other testimony to the effect that the liquor was gin, there was no such variance between the proof submitted and the allegations in the accusation as to require the grant of a new trial. The court did not err in declining to “exclude all evidence in the ease with reference to the sale of whisky,” on the ground that “the uncontroverted evidence showed that the stuff alleged to have been sold was gin and not whisky.” The uncontroverted evidence did not show that the liquor sold was “gin and not whisky.” Nor did the testimony relating to the two bottles of liquor introduced in evidence clearly establish that the liquor was gin and not whisky, as the witness testifying as to their contents, said merely: “I think this is gin; I think it is gin liquor, it smells like gin; that also smells like gin.”

The court did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., concur.


text:
    8877.
    Leverett v. The State.
    Decided August 3, 1917.
    Indictment for manufacture of liquor—conviction of attempt to manufacture liquor; from Jasper superior court—Judge Park. May 7, 1917.
   Wade, C. J.

1. Acts merely preparatory for the commission of a crime, and not proximately leading to its consummation, do not constitute an attempt to commit the crime. Groves v. State, 116 Ga. 516 (42 S. E. 755, 59 L. R. A. 598). “Attempt” is more comprehensive than “intent,” and implies both the purpose and an actual effort to carry the purpose into execution (Smith v. State, 126 Ga. 544, 546, 55 S. E. 475), and, in general, to constitute an attempt, there must be an act done in pursuance of the intent, and more or less directly tending to the commission of the crime. Groves v. Stale, supra. The evidence in this case clearly showed acts “proximately leading” to the consummation of the crime of manufacturing liquor, charged in the indictment. The cases of Groves v. State, supra, Moss v. State, 6 Ga. App. 524 (65 S. E. 300), and Leary v. State, 13 Ga. App. 626 (79 S. E. 584), are not precisely in point, and ■are clearly not in conflict with this ruling.

(a) An instruction by the court authorizing the jury to find the accused guilty of an attempt to commit the crime of manufacturing alcoholic, spirituous, malt, and intoxicating liquors was proper.

(b) There was some testimony tending to show that the crime had been not only attempted but consummated; but despite the inhibition of the Penal Code against a conviction of an attempt to commit an offense when it shall appear that the offense attempted was actually perpetrated by the defendant in pursuance of such attempt (Penal Code of 1910, § 19), and notwithstanding the evidence that a considerable quantity of whisky was found near the still which the accused was apparently attempting to operate, the jury were not compelled to conclude that he had assisted in the manufacture of the completed product, but were authorized to find that he was then attempting to manufacture intoxicants; and they may have entertained a reasonable doubt that he had been interested in the manufacture of the completed product discovered, or may have believed that he had but recently connected himself with the illicit enterprise and was attempting for the first time and with all the necessary equipment to engage in the manufacture of intoxicants.

2. Under the facts of this case, and taking into consideration all the admissions made by another defendant (charged with the commission of the same misdemeanors) in the presence of the defendant whose trial is now under review, at the. time they were both arrested and when both were present, the refusal of the court to exclude the testimony complained of will not require a reversal.

3. In the light of the entire charge of the court, there is no substantial merit in the exceptions to instructions not dealt with above, the evidence supported the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., concur.

Greene F. Johnson, for plaintiff in error.

Doyle Campbell, solicitor-general, contra.


author: • Wade, C. J.

text:
    8914.
    GARRETT v. THE STATE.
    1. The conviction of the offense of bastardy was authorized by the evidence.
    2. The grounds of the motion for a new trial relating to the refusal of the court to allow witnesses to answer certain questions are not in proper form for consideration.

      (a) Testimony in response to the question as to the number of bastardy warrants sworn out by the father of the prosecutrix for his daughters would not have been admissible for the purpose of showing her general character.
    3. The charge of the court touching impeachment of witnesses was not subject to the exceptions taken.
    Decided August 3, 1917.
    Indictment for bastardy; from Paulding superior court—Judge Bartlett. April 14, 1917.
    Paragraph 3 of'the decision relates to the following instruction: “When a witness is impeached by general bad character, it is for you to determine what weight shall be given the attacking evidence, —that is, the evidence that attacks, as well as the attacked evidence. It is for you to determine. So take the case and look at it, and consider what witnesses, if any, have testified as to bad character, and as to whether or not the attempt to impeach has been successful, and what credit, as before stated, should be given both the attacking and the attaclmd evidence.” It was alleged that this was error, because “it instructed the jury in effect that although they might find that a witness had been impeached successfully, still the jury had a right, after so finding, to believe such impeached witness in preference to the witness by whom such impeachment was made,” and because it tended to lead the jury [to the conclusion?] that there had only been an attempt to impeach, and that the impeachment had not been complete;” and further, because the word “attempt” was “the improper word to use in charging the jury, and the court should have left off said word entirely and used another word instead.” An- additional ground of tlie motion was that the charge of the court on the subject of impeachment of witnesses was not sufficiently full and specific.

      O. D. McGregor, Smith & Moore, for plaintiff in error.

      J. B. Hutcheson, solicitor-general, G. B. McGarity, contra.
   • Wade, C. J.

The evidence for the State was direct and.positive and authorized the verdict. ' The character of the witnesses and the comparative value of their testimony were matters to be determined by the jury, and can not be considered by this court.

The 1st ground of the amendment to the motion for a new trial complains that the court declined to allow a witness for the defendant “to answer the following question propounded by counsel for defendant: ‘Where is Gus Backers now?’ For the reason that said evidence was admissible to show that Gus Backers had run away, which was a circumstance to show his guilt after the defendant showed that Gus Backers and Mary Stiles, the mother of the child, had been seen in the woods together just nine months before the child was born.” Each ground of a motion for a new trial must be complete in itself, and it does not appear from this ground of the motion that the judge was advised, at the time he declined to allow the witness to answer the question, what the answer to the question would be or the purpose thereof. “Grounds of a motion for a new trial complaining of the refusal of the court to allow a witness to answer a certain question of counsel must be eompléte and must of themselves disclose the expected answer and that the judge was informed of it.” Western & Atlantic R. Co. v. Waldrip, 18 Ga. App. 263, 264 (3) (89 S. E. 346).

The 2d ground of the amendment of the motion for a new trial is for the same reason defective. This ground is as follows: “Because the court refused to allow Charlie Stiles, the father of. Mary Stiles, to answer the following question propounded to him by counsel for defendant: ‘How many bastardy warrants have you sworn out for your girls?’ For the reason, as movant contends, that said evidence was admissible to show that Charlie Stiles ran a lewd house and that Mary Stiles lived with him, and to show the general character of the witness and prosecutor, Mary Stiles. This ruling will be found on the 7th page of the brief of evidence.”

Testimony in response to this question, however, would not have been admissible for the purpose of showing the general character of the prosecutrix. See Rudulph v. State,. 16 Ga. App. 353 (7) (85 S. E. 365), where it was said: “The court did not err in refusing to admit testimony that the ‘reputation for chastity’ of the mother of the bastard was bad, or that her ‘general reputation and character for chastity prior to March 25, 1912’' (about the time the bastard must have been begotten), was bad. . . While it has been held that,- in a prosecution for bastardy, proof of specific instances of sexual intercourse between the mother of the bastard and other men than the accused, at and near the beginning of the period of gestation, when the bastard must have been conceived, is admissible, not for the purpose of impeaching her character, but as tending to show that some other person than the accused may have begotten the child (1 Wig. Ev. § 133, pp. 195-6; 5 Cyc. 661; 3 R. C. L. §-44, p. 763; State v. Roderick, 77 O. St. 301, 82 N. E. 1082, 14 L. R. A. (N. S.) 733), proof of the reputation or character of the woman is not admissible for the purpose of showing this fact.” See additional discussion and eases cited, in the Rudulph case, supra; also Morgan v. State, 17 Ga. App. 124 (86 S. E. 281).

There was no error in the charge of the court touching impeachment of witnesses by proof of general bad character, as an abstract statement of the law, and it does not appear that a written request for any fuller or more specific instruction was made. See Rice v. Eatonton, 15 Ga. App. 505 (83 S. E. 868), and numerous cases there cited; Rudulph v. State, supra; Smith v. State, 17 Ga. App. 298 (2) (86 S. E. 600); Brown v. State, 17 Ga. App. 402 (2) (87 S. E. 155); Hagin v. Rogers, 17 Ga. App. 515 (87 S. E. 769). Omission altogether to charge as to the impeachment of witnesses is not error in the absence of request. Wyatt v. State, 18 Ga. App. 29 (2) (88 S. E. 718); Winder v. State, 18 Ga. App. 67 (88 S. E. 1003); Seaboard Air-Line Ry. v. Barrow, 18 Ga. App. 261 (2) (89 S. E. 2); Garrison v. State, 17 Ga. App. 314 (3), 315 (86 S. E. 743); Shropshire v. State, 15 Ga. App. 345 (3) (83 S. E. 152). There is therefore no merit in the 3d and 4th grounds of the amendment to the motion for a nev trial.

The court did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., concur.


author: George, J.

text:
    8923.
    Kennedy v. The State.
    Decided August 3, 1917.
    Accusation of larceny; from city court of Jesup—Judge Clark. May 5, 1917.

      J. R. Thomas, for plaintiff in error.

      W. B. Gibbs, solicitor, contra.
   George, J.

The plaintiff in error, after'his trial and conviction, filed an extraordinary motion for a new trial, upon the ground that one of the jurors who returned the verdict of guilty against him was related within the prohibited degrees of affinity to a deceased stockholder in the prosecuting corporation, and alleged that such relationship was unknown to the movant or his counsel at the time of the trial, and could not, by the exercise of ordinary diligence, have been discovered. The evidence produced by the State on the hearing of the extraordinary motion authorized the trial judge, sitting as a trior of this issue, to find that such relationship was known to the movant’s counsel; and the discretion of the presiding judge in overruling the extraordinary motion will not be disturbed. Brown v. State, 141 Ga. 783, 786 (82 S. E. 238).

Judgment alfirmed.

Wade, O. J., and Luke, J., concur.


text:
    8170.
    ROBERTS v. DANCER, ordinary, for use, etc.
    Under the act of the General Assembly, creating a board of commissioners for the county of Miller, which provides that three members of the board “must concur in order to pass any order,” such concurrence was shown where four members were present when a resolution was put, and two members voted for its passage and one against it, and the other commissioner, the chairman, thereupon declared that it was carried. This declaration of the chairman was equivalent to a formal- easting of his vote in favor of its adoption.
    Decided August 3, 1917.
    Affidavit of illegality of-execution; from Miller superior court— Judge Worrill. June 17, 1916.

      W. 1. Geer, for plaintiff in error. Billie B. Bush, contra.
   Jenkins, J.

When this case was before the Supreme Court a new trial was granted (144 Ga. 341, 87 S. E. 287), and the only question to be thereafter settled was the issue of fact raised by the affidavit of illegality, as to whether, or not three commissioners concurred in the passage of the resolution directing the issuance of the execution against- the defendants in fi. fa. The act creating the board of commissioners of roads and revenues of Miller county (Acts 1905, p. 569) provides that “three of said board shall constitute a quorum for the transaction of business, and . . three must concur in order to pass any order or let any contract or grant or allow any claim against the county.” The minutes of the board of commissioners, for the meeting held December 31, 1910, show the following: “The Board of Commissioners of Miller county met in called meeting for the purpose of acting upon the shortage of the county treasurer, and in accordance with the rule absolute passed by the Honorable ¥m. C. Worrill, judge of the superior court of Miller county, Georgia, at the October term, 1910. Present, W. C. Dancer, chairman, G. W. Cook, F. E. Fudge, and W. J. Grimes. After a full and complete discussion of the matter, the following resolution was introduced by G. W. Cook, and on second of W. J. Grimes was adopted, F. E. Fudge voting in the negative. ‘Whereas’” etc. The minutes state that the resolution was adopted. There is nothing therein that can be taken to show that only two of the commissioners voted for it. The act creating the board does not require that the vote be taken by ballot, by ayes and nays, or that the vote be recorded. Therefore, the order is presumed to have been legally passed, and the burden would be upon one attacking its validity to show the contrary. 2 Dillon, Municipal Corp. § 579. Under the plain provisions of the act referred to, the ordinary, Dancer, was made a member of and chairman of the hoard of commissioners. The evidence on the trial-may be fairly taken to show indisputably that two of the commissioners voted for the resolution and one against it, and that the other commissioner, the chairman, without specifically and in terms voting for it, thereupon declared it carried. It is true that the chairman testified as follows: “G. W. Cook and W. J. Grimes voted for it, and I think I said ‘Aye.’ I know it was my intention to vote for it, but I don’t know-that I expressed myself as voting for it. When the resolution was introduced by G. W. Cook and seconded by W. J. Grimes, G. W. Cook and W. J. Grimes voted for it and F. E. Fudge voted against it; after they cast their votes, I stated that the motion was carried;” but since the witnesses for both parties agree in their testimony that the facts are as we have stated, we think it can be- assumed that this is the correct statement of what was proved.

It is our opinion that in order for the commissioners to pass a valid order, the provisions of the act' quoted require something more definite on the part of the third commissioner than mere tacit consent, implied acquiescence, or silent submission. While such conduct is frequently sufficient to operate by way of estoppel, as against a party to a transaction, he, in such cases, not being permitted to deny his implied acquiescence, the purpose and sense in which concurrence is required have much to do with the determination as to whether or not it has been given. In the present instance we think concurrence must -have been evidenced in some more active and positive manner than by acquiescence which is altogether implied, and that in some way actual and positive manifestation of such intent must have been given. It is our opinion that the statement of the chairman, in declaring the resolution carried, when the circumstances were such that his vote became necessary to its adoption, was equivalent to the express and formal casting of his vote therefor. We find a similar ruling by the Supreme Court of Maine in Small v. Orne, 79 Me. 78 (6 Atl. 153), in which it was held: “Where, by the city charter, the mayor is allowed a casting vote in the city council, in accordance with E. S., c. 3, § 34, his 'act is sufficiently formal for that purpose if he determines and declares which of the candidates is elected, although he may not go through the formality of casting a ballot.” The Supreme Court of Indiana in Rushville Gas Co. v. City of Rushville, 131 Ind. 212 (33 N. E. 73, 6 L. R. A. 315, 16 Am. St. R. 388), held that the declaration of a presiding officer that a resolution was adopted was equivalent to casting a vote in its favor, where the other votes were equally divided. The purport of the ruling in Launtz v. People, 113 Ill. 137 (55 Am. R. 405), was to the same effect. We find that the Tennessee Supreme Court, in Lawrence v. Ingersoll, 88 Tenn. 53 (13 S. W. 433, 6 L. R. A. 308, 17 Am. St. R. 870), has laid down a contrary rule, but we think the doctrine here followed is founded upon the better reason, and it is therefore adopted.

One of the grounds of the motion for a new trial complains that N. L. Stapleton, attorney for the board of commissioners, who was present at the time the resolution was acted on, was allowed to testify that “there was an informal discussion of the resolution among the four members of the board present, and in that discussion E. E. Fudge opposed the passing of the resolution and the other three were in favor of the passage of the resolution, and, after talking some time, informally discussing the matter,' the motion was put, and Judge W. C. Dancer declared the motion carried and the resolution passed.” If, however, we are correct in the ruling already indicated, the verdict was demanded, irrespective of this testimony, and therefore, even if the court erred in admitting it, thes error would not require a new trial. This is true also -as to the other grounds of the motion for a new trial.

Judgment affirmed.

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


text:
    8298.
    McNATT v. CITIZENS & SOUTHERN BANK.
    1. Where process dated. May 3 required the defendant “to be and appear at the next superior court of Toombs county on the 4th Monday, that being the 24th day of May next,” this meant the first 24th day of May after the date of the process, and not the 24th day of May of the next year.
    2. Where a note sued on provided that “Should [the payee] at any time deem it necessary for the protection or enforcement of any of its rights hereunder to employ an attorney or attorneys, or should this paper be placed in the hands of an attorney after default for collection or enforcement, I hereby agree to pay all fees and costs that may be incurred by said [payee], which fees and costs shall become a part of the principal debt secured hereby, and may be paid by said [payee] from the proceeds of any sale or sales as above,” and where the petition.' asked for “ten per cent, of the said principal and interest as attorney’s fees,” it was not- demurrable on the ground that,, under the contract, the amount of attorney’s fees sued for was not recoverable. Under the petition reasonable attorney’s fees, not exceeding the amount sued for, were recoverable.
    3. Recoupment, as a defense, must spring out of the contract upon which the plaintiff sues, and is confined to that. Any cross-obligation or independent covenant arising under that contract would be available as a • defense; but the defendant can not by plea recoup under a different and independent contract.
    Decided August 3, 1917.
    Complaint; from Toombs superior court—Judge Hardeman. August 29, 1916.

      W. L. Wilson, Hines & Jordan, for plaintiff in error.

      Adams & Adams, B. J. Giles, contra.
   Bloodworth, J.

The Citizens and Southern Bank brought suit against James MeNatt on a note due June 15, 1914, for the principal sum of $67,449.81. The defendant entered a special appearance for the purpose of moving to dismiss the petition, and filed a demurrer and a plea, and an amendment to the plea. We will discuss the motion, the demurrer, and the amendment to the plea in the order in which they were made.

The copy of the process attached to the petition is as follows:

“The defendant, James McNatt, of the said county of Toombs, is hereby required, personally or by attorney, to be and appear at the next superior court of Toombs county on the fourth Monday, that being the 24th day of May next, then and there to answer the plaintiff on the merits of the foregoing petition, as in default of such appearance the said court will proceed as to justice shall appertain. Witness, the Honorable R. N. Hardeman, judge of said superior court, this 3rd day of May, in the year of our Lord one thousand nine hundred and fifteen.
“Adams & Adams, plaintiff’s attorneys.
“Dess Gray, Clerk S. C. T. Co.”

The defendant moved to dismiss the petition and process, “because the process attached to said petition is dated May 3, 1915, and this defendant is thereby required to be and appear at the next superior court of Toombs county, on the fourth Monday, that being on the 24th day of May next, that is on the fourth Monday, being the 24th day of May, 1916, when said process should be returnable to the May term, 1915, of said court.” The next term of Toombs superior court after the process was issued would be held on the 4th Monday in that month. This motion was properly overruled. “The defendant was bound to know when the ‘next term’ of the superior court of his county would be held, and the fact that the notice incorrectly named the date of the term did not render it invalid.” American Bonding & Surety Co. v. Adams, 124 Ga. 510 (1-b) (52 S. E. 622). “The word ‘next’ in a writ of venire issued June 12, 1908, commanding the sheriff to serve the writ upon the jury commissioners, and requiring them to summon the jurors to appear before the common pleas court held on the 22d of June next, at 10 o’clock, etc., meant the next 22d day of June in that year, especially in view of the fact that the next term of the court after June 12th was June 22nd.” State v. Washington, 82 S. C. 341 (64 S. E. 386); Osgood v. Hutchins, 6 N. H. 374-384; Gibson v. Laughlin, Minor, (Ala.) 182; Fosdyck v. Perrysburg, 14 Ohio St. 472-480. In the decision in the case of Richmond & Danville R. Co. v. Benson, 86 Ga. 206 (12 S. E. 357, 22 Am. St. E. 446), we find the following: “In the case of Williams v. Buchanan, 75 Ga. 789, the original process required the defendant to appear ‘on the second Monday in April next/ hut hy mistake the copy process required him to appear ‘on the second Monday in December next.’ The process was dated December 28th. The following April was the time of the regular term, and no term of the court was to meet in December. It was held that service of this declaration and copy process was sufficient to put the defendant on notice of.the case. Jackson, C. J.> in the course of the opinion said: ‘When a man knows that he is sued, and is served with a copy of the declaration which tells him what he is sued for an¿ in what court, it would be well for him to step to the clerk of that court and find out something about any little mistake in the process, and attend at the first term to take advantage of the mistake, if it would avail him, or have it corrected and put off a term, if the court so decided; especially would it be prudent not to delay action until after trial term, verdict, judgment and execution, and then set up the mistake of the clerk, which must have been known to him the moment he read the copy declaration and process handed him hy the sheriff, and called to mind the fact, known to everybody in Sumter county, that the superior court met in April and not in December.’” See also Ware v. Lamar, 16 Ga. App. 560 (85 S. E. 824).

The defendant filed a demurrer, but in his brief discussed those portions thereof only which attacked the paragraphs of the petition asking for attorney’s fees, the demurrer alleging that no facts were stated in the petition which entitled petitioner to ten per cent, on principal and interest as attorney’s fees, and that no copy of the notice given to defendant as to attorney’s fees was attached to the petition; Where a note provides for attorney’s fees, and the holder seeks to recover fees with principal and interest, and alleges the giving of the notice required by law to enable him to recover such fees, it is not necessary that a copy of the notice be attached to the petition. It is sufficient if the petition shows (as was done in this ease) that “the holder of the obligation sued upon, his agent, or attorney notifies the defendant in writing, ten days before suit is brought, of his intention to bring suit, and also the term of the court to which suit will be brought.” Civil Code of 1910, § 4252. ■ “Every citizen is presumed to know the law; and the notice which the statute requires'to be given in order to fix upon the defendant liability for attorney’s fees (Acts 1910, p. 53) is sufficient if it states the contract upon which suit will be .brought, the term of the court to which the suit will be filed, and refers specifically to the act above cited.” Rylee v. Bank of Statham, 7 Ga. App. 490 (3) (67 S. E. 383). The note provides as follows: “Should said bank at any time deem it necessary for the protection or enforcement of any of its rights hereunder to employ an attorney or attorneys, or should this paper be placed in the hands of an attorney after default for collection or enforcement, I hereby agree to pay all fees and costs that may be incurred by said bank, which fees and costs shall' become pari¿ of the principal debt secured hereby, and may be paid by said bank from, the proceeds of any sale or sales as above.”

In the petition the plaintiff asked for ten per cent, of the principal and interest as attorney’s fees. Under this provision of the note the defendant claimed that this was not allowable, and that this part of the petition should be stricken, as the plaintiff, under this provision, could recover reasonable attorney’s fees only; There was no error harmful to the defendant in refusing to strike this part of the petition, because at last it was a question of proof as to what would be reasonable attorney’s fees, and under the petition the plaintiff could recover whatever amount was shown to be reasonable as fees up to, but not in excess of, ten per cent. However, as no attorney’s fees were allowed, this ruling-could not have harmed the defendant.

The defendant filed a plea denying the indebtedness, and offered an amendment, which the court refused to allow; and the defendant contends that this ruling was erroneous. An examination of the plea will show that it is intended as a plea of recoupment. It is couched in the language of a plea of recoupment, and alleges that because of the failure of the plaintiff to discharge its duty, and in violation of its cross-obligations, this defendant-has been damaged in a stated sum, which he asks to be allowed to recoup against the plaintiff, and prays judgment for said- sum against the plaintiff. Under our law, the plea of recoupment must grow out of the cross-obligations of the plaintiff under the contract upon which suit is brought. Civil Code (1910), § 4350. In the case of Hamilton v. Granger’s Life & Health Insurance Co., 65 Ga. 752, Justice Crawford said: “Eecoupment as a defense must spring out of the contract upon which the plaintiff sues, -and is confined to that. In this case the suit was brought on the promissory note, and any cross-obligation or independent covenant arising under that contract would be available as a defense; but it is sought by the plea to recoup under another distinct, independent, and antecedent contract. This can not be done.” In the case at bar the suit was upon a note, and the facts upon which the plea of recoupment were based did not spring out of any cross-obligation of the plaintiff, embraced in the note sued on, but dealt with a distinct and independent matter. It is based upon what is called a trust deed, and alleges that this trust deed was made to the bank as trustee to secure an issue of bonds. It admits that the creator of the trust deed, “said Oconee Eiver Mills, covenanted and agreed” to insure its building, etc., and to deposit the policies with the plaintiff, as trustee, which policies were to be made payable to the plaintiff, and that the “Oconee Eiver Mills agreed to pay the premium thereon and keep the same in full force and effect in a sum equivalent to the bonds secured by said deed.” This deed was between the Oconee Eiver Cotton Mills and the plaintiff only, and the defendant is not a party thereto. The plea further avers in general terms that it was the duty of the plaintiff as said trustee, and the plaintiff as such trustee undertook and agreed, in behalf of the holders of the bonds, to keep the policy in full force and effect by obtaining the necessary, customary, and proper agreements from the insurance company, permitting the establishment to be and remain idle. It does not, however, set forth any contract of this sort by the bank as trustee, or the consideration or terms thereof, and does not in any way withdraw the admissions, already noticed, to the effect that the Oconee Eiver Mills was to look after the insurance and keep it up. In the case of City of Moultrie v. Schofield’s Sons Co., 6 Ga. App. 464 (65 S. E. 315), the first headnote is as follows: “Pleadings are construed most strongly against the pleader, and where a plea both admits and denies the' execution of a contract which binds the pleader and the adverse party to mutual obligations, the admission, and not the denial, must prevail.” See also White Sewing Machine Co. v. Horkan, 7 Ga. App. 283 (2) (66 S. E. 811).

The plea further alleges that if the plaintiff, as said trastee for this defendant and the other bondholders, had, in accordance with its agreement, kept the policy in force by obtaining an extension agreement, plaintiff would have been able to collect the amount of the policy; and if it had been collected, the bank, as pledgee, would have received from the bonds more than enough to pay the note; and that, by reason of said failure of the plaintiff to keep said insurance in force, “this defendant was and is damaged in the sum of forty-one thousand dollars ($41,000.00), which loss and damage arose out of the breach of the cross-obligations of plaintiff to this defendant under said trust deed, and under the contract between the plaintiff and this defendant whereby the bonds and stock • of said Oconee River Mills were deposited with and pledged to secure the note sued on in this ease,” and that by reason of the failure to keep up said insurance said policy became null and void, and the plaintiff and the Oconee River Mills were unable to collect the full amount of said loss, but, on the contrary, compromised and settled with the insurance company for the sum of $75,000. The pleading concludes’ with the following: “By reason of the failure of plaintiff to discharge its duty in the above respects, and by reason of the violation of its undertaking and agreement, and in violation of its cross-obligations to this defendant, this defendant has been damaged in the sum of $41,000.00, which he recoups against the claim of plaintiff, and prays judgment for said sum against the plaintiff.”

From the foregoing it will be seen that the allegations of the plea seeking to set out recoupment grow out of a separate and independent contract from the note sued on, and the plea is therefore not good as one of recoupment.

The other and general allegations of the plea, as to damage to the defendant, based upon the alleged violation of duty in obtaining an extension of insurance, and thereby saving loss to the defendant, when considered in connection with the particular facts of this case, and especially in connection with the statement in the plea that the Oconee Mills agreed to insure the building, pay the premiums, and keep the insurance of full force, were properly stricken with the other portions of this amended plea.

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.


text:
    8302.
    ATLANTIC COAST LINE RAILROAD COMPANY v. LUKE & FLEMING.
    When the agent of a railroad company receives for shipment a number of bales of cotton, weighs them, and inserts in the bill of lading the number of bales and their total weight, and the number of pounds inserted is in excess of the actual weight, and the shipper attaches to the bill of lading a draft, which is paid by an innocent transferee, the railroad is bound by the error of its agent, unless the amount erroneously inserted in the bill of lading is so very large that the error would be apparent upon its face.
    The demurrer was properly overruled on all the grounds thereof.
    Decided August 3, 1917.
    Action for damages; from Richmond superior court—Judge Henry C. Hammond. December 13, 1915.

      William K. Miller, for plaintiff in error.

      Callaway & Howard, contra.
   Bloodworth, J.

The court did not err in overruling the demurrer on each of the grounds thereof. As the plaintiff in error specially urges that because the railroad delivered to the assignees of the bill of lading “all and the very same cotton it received from the shipper,” it should be relieved of liability, especially as the bill of lading had in it the words, “Weight subject to correction,” and “it was only quasi-negotiable, that is, assignable as to the property itself, not as to the quality of the goods,” we will discuss this proposition only. A bill of lading is not strictly a negotiable instrument, but rather a symbol or representative of the goods themselves. Section 4134 of the Civil Code of 1910 is as follows: “When a bill of lading is attached to a draft drawn on a third person, it will be treated as security for the draft, and neither title to the goods, nor right to the bill of lading, will pass to the drawee until, as required therein, he accepts, or accepts and secures, or pays the draft as the case may be.” In the case of American National Bank v. Georgia Railroad Co., 96 Ga. 665 (23 S. E. 898, 51 Am. St. R. 155), Chief Justice Simmons said: “The law seems to be, that where an agent has authority to issue bills of lading and does issue one with certain representations contained therein, and the bill of lading is negotiated to an innocent third person, the railroad company, as between itself and such third person, is estopped to deny the representations made in the bill of lading. Under these decisions it is immaterial that the bill of lading is not negotiable in the strict sense of the term. A representation in a non-negotiable chose in action, when acted upon, is, according to the .usual rule applied in eases of estoppel, held to be equivalent in all respects to one made in the ease of a negotiable paper. Some of the decisions referred to are also put upon the ground that where one of two innocent parties must suffer from the wrongful act of a third party, the law casts the burden of loss upon him by whose act, omission, «r negligence such third party was enabled to commit the wrong which occasioned the loss. The superior equity is with the bona fide assignee who has parted with his money upon the faith' of the recitals contained in the bill of lading. 2 Am. & Eng. Enc. of Law, Bill of Lading, p. 227, and cases cited: Bank of Batavia v. Railroad Co., 106 N Y. 195 [12 N E. 433, 60 Am. R. 440]; Howard v. Tucker, 1 Barn & Adol. 713; Armour v. Michigan Central R. Co., 65 N Y. 114 [22 Am. Rep. 603]; St. Louis R. Co. v. Larned, 103 Ill. 293; Brooke v. R. Co., 108 Pa. St. 529 [56 Am. Rep. 235]; Wichita Savings Bank v. R. Co., 20 Kan. 519; Sioux City R. Co. v. First Nat’l Bank, 10 Neb. 556 [7 N. W. 311, 35 Am. Rep. 488]; Coventry v. Great Eastern Ry. Co., 11 Q. B. Div. 776; Abbott’s Law of Merchant Shipping (13th Lond. ed.), p. 565, and cases cited. A very large proportion of the business of the country is founded upon transfers of bills of lading; and if the transferee were required at his peril to ascertain from the carrier whether the representations made in the bill of lading are true or not; it would practically put an end to this class of transactions. The better and safer rule is, to hold that the carrier who issues the bills of lading is bound by the representations of his agents. Mr. Justice Miller, in discussing this subject in the case of McNeal v. Hill, Woolworth’s U. S. Circuit Reports, p. 96 [Fed. Cas. 8914], says: ‘As civilization has advanced and commerce extended, new and artificial modes of doing business have superseded the exchanges by barter and .otherwise which prevail while society is in its earlier and simpler stages. The invention of the bill of exchange is a familiar illustration of this fact. A more modern, but still not recent invention of like character, for the transfer, without the cumbersome and often impossible operations of actual delivery or articles of personal property, is the indorsement or assignment of bills of lading and warehouse receipts. Instruments of this kind are sui generis. From long use and. trade they have come to have among commercial men a well understood meaning, and the indorsement or assignment of them as absolutely transfers the general property of the goods and chattels therein named as would a bill of sale, . . . If the warehouseman gives to the party who holds such receipt a false credit, he will not be suffered to contradict his statement which he has made in the receipt, so- as to- injure a party who has been misled by it.’ Horton, C. J., in the case of Wichita Savings Bank v. Railroad Co., supra, says: ‘Where one advances money on a bill of lading or buys the property therein set forth, by taking a transfer of such instrument absolutely, the only evidence which he has of the quantity .of goods which he has bought or advanced money on may be the statement contained in the bill of lading. Indeed, one of the main uses of bills of lading of grain, at this day, is to afford shippers opportunity to obtain advances, upon their shipments when they may and probably will be used with commission merchants, or at some bank,.to obtain advances of money. In the most of cases this result is almost certain to follow.’” See also Askew v. Southern Railway Co., 1 Ga. App. 80, 81 (58 S. E. 242).

■ In the case of L. & N. R. Co. v. Pferdmenges, 8 Ga. App. 83 (68 S. E. 617), Chief Judge Hill said: “The plea seeking to contradict the bill of lading as to the number of bales of cotton that had been delivered to the railroad company was properly stricken. The plaintiffs were the assignees or transferees for value of this bill of lading, and had the right to sue on it. Askew v. Sou. Ry. Co., 1 Ga. App. 79 (58 S. E. 242). While a bill of lading is in some sense a receipt and open to dispute between the parties, yet* when it is intended for negotiation, its recitals, in the hands, of - a bona fide transferee for value, operate as an estoppel against the carrier. The bill of lading in this case was issued by the railroad company with the intent that it should be negotiated. The purchasers of the cotton bought on the faith of the declaration of the railroad company that it had received 100 bales of cotton. If this statement was not true, the company might have some remedy against the shipper, but this does not relieve it from liability to the assignees of the .bill of lading. It is a universal rule that harriers can not contradict the recitals contained in their bills of jading as to the delivery of goods, their description, quantity, or condition, as against the lights of bona fide transferees for value. Bank of Sparta v. Butts, 4 Ga. App. 308 (61 S. E. 298); King v. The Lady Franklin, 8 Wall. 325 (19 L. ed. 456, and eases in note).” It is contended, however, that the rule that a carrier can not, as against a bona fide transferee for value, contradict bill of lading recitals as to quantity, etc., does not apply here, because in this case the bill of lading had in it the words, “Weight subject to correction,” and that this was sufficient to put the assignees of the bill of lading on notice that the weight stated was probably not correct. As between the shipper and the railroad company this would be a correct principle, but under the particular circumstances of this case we do not think it applicable. See Dickerson v. Seelye, 12 Barb. (N. Y.) 99. The petition shows that the agent of the defendant made the error in inserting the amount in the bill of lading, and, so far as the record shows, the shipper had nothing to do with weighing the cotton or with preparing the bill of lading. These words, “Weight subject to correction,” evidently are intended to apply where the shipper furnishes the weights, and they are inserted for the protection of the carrier against error in the weight furnished by the shipper. In the case of Tibbits v. R. I. & P. R. Co., 49 Ill. App. 561, it appears that the shipper delivered to the carrier a quantity of corn for shipment. It was weighed by the weighmaster of the board of trade, properly sealed, and shipped to its destination. The shipper filled out a blank bill of lading, inserting the weight as given by the weighmaster, and the defendant’s agent signed it. The bill of lading was then forwarded by the shipper to the plaintiff, and a draft was drawn on the plaintiff for the price of the corn according to the weight stated in the bill of lading, but, on opening the car, a shortage of 14,336 pounds of corn was found. The bill of lading contained a column at the top of which were the words, “Weight subject to correction,” and under this the weight of the corn was set down. It was held that the plaintiff, the consignee, had a right to recover on account of the shortage against the carrier.

In the case of Nashville, C. & St. L. Ry. v. Flournoy, 139 Ga. 582 (11 S. E. 797), it was held: “1. When a carrier issues a bill of lading containing a statement as to the quantity of goods received, with the understanding that the goods may be transferred .by means of a transfer of the bill of lading, the transferee is justified in relying upon the representation of the carrier, made in the bill, with reference to the quantity of goods received under it; and as to one who receives the bill in good faith, the carrier will be estopped from showing that, though he received some of the goods, he has not received the quantity recited in the bill. ” “ 2. To guard against such estoppel the carrier may insert in the bill of lading, Shippers load and count/ or some like clause qualifying his representation; and in that event he will not be liable to an assignee for value if he delivers all the goods received.” It will be noted that this qualification in paragraph 2 of the decision refers to the shipper, and not to the agent of the railroad; and this differentiates the instant case from the rule stated in that paragraph. In the case of Illinois Central Railroad Co. v. Doughty, 10 Ca. App. 317 (73 S. E. 541), the bill of lading described the property shipped as “100 bales of cotton weighing 51,990 pounds, marked ‘Tayk.’” This bill of lading was transferred to the plaintiff, Doughty, who took it as a bona fide holder for value and demanded 100 bales of cotton of the above weight and marking. The carrier was unable to find any such cotton, but tendered 100 bales marked “Park” and of some two hundred pounds less weight. The court said: “The bill of lading was conclusive upon the company, both as to the number of bales and as to the weight, and, so far as these things tended to fix value, bound the company to deliver to the bona fide holder of the bill of lading cotton of that value. . . Under the law as applied to this bill of lading, the carrier should have been held liable for the deficiency in weight.”

The description of the cotton in the bill of lading in the instant case was 119 bales weighing 61,703 pounds. It will thus be seen that the number of bales was but a part of the description of the property received by the railroad. It is a well-known fact that cotton is sold by the pound and not by the bale, and when the agent of the defendant incorporated the number of pounds in the bill of lading, he should have been accurate. Every common carrier owes it as a duty to the purchasers of goods, bought on the faith of the carrier’s statement as to weights in the bills of lading, that they speak the exact truth. When the agent of a railroad company weighs cotton to be shipped, and states a total number of pounds in excess of what is the real weight, this is the neglect of the railroad company, and the company, and not an innocent party, should suffer from the neglect. “The reasons for this view are mainly, that the question is not one of negotiability of the instrument but one of estoppel in pais, that the carrier has clothed the agent with apparent authority to issue a bill of lading, that the agent having done so with full knowledge or full opportunity to know what, if any, goods are intended for shipment, the principal should be estopped to deny the truth of the recitals as to goods covered thereby, that it is better to cast the loss upon the carrier whose agent made the false representation than upon an innocent holder of the bill of lading who relied upon the representation, that while not strictly negotiable a bill of lading is quasi-negotiahle, symbolizing the property described therein, and that the title thereto passes by its transfer or delivery, and that it is in the highest degree important to the large commerce, known by the carrier to be built upon the transfer of bills of lading, that there should be confidence in their recitals. ” Thomas v. Railroad Co., 85 S. C. 540, 541 (64 S. E. 220, 67 S. E. 908, 34 L. R. A. (N. S.) 1177, 21 Ann. Cas. 223).

If the amount erroneously inserted in the bill of lading by the agent was so very large that the error would be apparent upon its face, this might be sufficient to put the transferee of the bill of lading on notice.

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.


text:
    8720.
    Levy v. Miles F. Bixler Company.
   Broyles, P. J.

. 1. “One who signs an instrument written by the opposite party at interest therein, without reading it, when he is capable of doing so, can not afterwards set up fraud in the procurement of his signature thereto, when no trick or artifice was resorted to for the purpose of inducing him to thus sign it, and it was not signed under any emergency requiring haste in its execution.” Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (2) (56 S. E. 1030) ; Sloan v. Farmers & Merchants Bank, 20 Ga. App. 123 (92 S. E. 893). Under this ruling the court did not err in striking that paragraph of the defendant’s answer which set up fraud in the procurement of the contract.

2. Paragraph 5 of the defendant’s plea was as follows: “For further plea defendant says that the order in question was given on the 5th day of February, 1916; that immediately thereafter, on February 9th, 1916, defendant mailed to plaintiffs a letter in which he countermanded the order for the goods in question, and notified them that he would not accept and receive goods ordered; that this letter was received by plaintiffs before the goods were shipped defendant and before the invoice for same had been sent defendant; that after this the plaintiffs delivered the goods ordered to the railroad and express companies and shipped them consigned to the defendant at Millen, Ga., but defendant declined to receive the goods, allowed them to remain in the depot and express office, and notified plaintiffs of his refusal to accept them; that the goods ordered were articles of merchandise kept in general stock and sold generally by plaintiffs, and that the same were shipped defendant after full knowledge that defendant had repudiated said contract; and that for these reasons, if plaintiffs had any cause of action against defendant, which is denied, it was for damages on breach of contract; that they can not recover on open account, and that this action should be dismissed." If the allegations of fact in this plea were true (and on demurrer they must be so taken), the plea set up a good defense to the suit as against a general demurrer or oral motion to strike, since it clearly showed that the plaintiffs’ only remedy was an action to recover damages for the breach of the contract. The court therefore erred in striking this paragraph on a general demurrer. Oklahoma Vinegar Co. v. Carter, 116 Ga. 140 (42 S. E. 378, 59 L. R. A. 122, 94 Am. St. R. 112); Rounsaville v. Leonard Mfg. Co., supra (4); Linder v. Cole Brothers Lightning Rod Co., 10 Ga. App. 102 (72 S. E. 719).

Decided August 3, 1917.

Complaint; from Jenkins superior court—Judge Henry C. Hammond. March 13, 1917.

0. 0. DeJcle, for plaintiff in error. Thomas L. Hill, contra.

3. The error in' striking paragraph 5 of the answer rendered the further proceedings in the case nugatory.

Judgment reversed.

Jenkins and Bloodworth, JJ., concur.