author: Harwell, J.

text:
    9393.
    CADDICK MILLING COMPANY v. MOULTRIE GROCERY COMPANY.
    1. In the construction of a contract, a clause written upon its face, inconsistent with one printed upon the back, will generally be accepted as expressing the intention of the parties, rather than the inconsistent clause printed upon the back.
    2. In construing a contract it is proper, in order to arrive at the intention of the parties, to consider the correspondence between them leading up to and consummating the contract.
    3. The true construction of the contract in this case is that the time of shipment of the flour is limited to the months of November and December, and that as to this provision time is of the essence of the contract. The plaintiff, not having ordered out the flour within the time specified in the contract, had no right of action for breach of contract against the defendant for failure to deliver the remainder of the flour.
    Decided July 12, 1918.
    Action for breach of contract; from Colquitt superior court— Judge Thomas. November 24, 1917.
    The Caddick Milling Company contracted to sell to the Moultrie Grocery Company 500 barrels of flour. The contract was dated November 10, 1914, and the material part of it is as follows:

      “The Caddick Milling Company, Grandview, Indiana, sold to Moultrie Grocery Company, Moultrie, Ga., the following articles upon terms and conditions named below: Ship to Moultrie Grocery Company at Moultrie, Ga. Ship via -. ■' Date of .shipment Nov. and Dec. Terms sight draft. Net cash—arrival draft b-1 attached.
    Make draft through-
    No. bbls. Brand. Pkg. . Price.
    500 Sunlight ‘5.45
    Delivered.-
    This sale is made subject to the terms and conditions printed on the back hereof, which are hereby agreed to and are not subject to change or countermand without the written consent of both parties. This order is taken subject to_ the. confirmation’ of the Caddick Milling Company, Grandview, Indiana. (Signed) Moultrie Grocery Company. By Thad Adams, Buyer. Salesman .Valdosta Brokerage Co.
    ' Conditions covering sale, of flour and feed, adopted by the Southeastern Miller’s Association, November 13, 1907.
    1. Terms—Sight draft with bill lading attached. 3.. Unless otherwise specified, purchases must be ordered out within 30 days from date of contract, with a maximum possible limit of 90 days from date of contract. If not so ordered out within thirty days or within contract shipment period, flour is, without notice from seller, subject to carrying charges of per barrel per month or fraction thereof, and feed 35(i per ton per’ month or fraction thereof. Such carrying charges become due and payable at the beginning of each 30 days period after the first thirty days of free storage, the buyer hereby agreeing to pay the same at-the beginning of each 30 days period. Failure to order flour out on demand of shipping instructions at expiration of the maximum 90 days period, or to pay accrued carrying charges on demand, gives seller the right to cancel contract or resell the goods for buyer’s account.' Upon failure of seller to make shipment of 30'days contract within 14 days from receipt of specifications for such shipment, flour is without notice from buyer subject to a credit of ten cents per barrel per month or fraction thereof, and further failure to- ship within- the'maximum 90 days limit entitles the buyer to cancel the contract or buy similar quantity and grade of goods for seller’s account. No verbal conditions or modifications to alter this contract.”
    The Grocery Company, in November and December (December 4th and 29th, 1914), ordered out 300 barrels of this flour, which the milling company shipped to the grocery company. The grocery company claims to have ordered the remainder of the flour, 200 barrels, from the milling company on January 30, 1915. It further claims that the milling company failed and refused to ship these 200 barrels in compliance with its contract, and it thereafter brought suit against the milling company for damages for breach of contract, setting up that in the meantime the price of flour had advanced and that it had been damaged in a.certain amount as set forth in the petition. The defendant admitted that on November 10, 1914, it entered into a contract with the plaintiff to ship 500 barrels of flour, but claims that the shipment was to be made and the flour to be ordered out in November and December, and that the plaintiff failed to order out the balance of'the flour, to wit, 200 barrels, within the time provided for delivery by the terms of the contract, and that for this reason it was not liable to the plaintiff in any amount whatever. On November 2, 1914, a telegram signed by the Valdosta Brokerage Company, addressed to Caddick Milling Company, was forwarded, the telegram being as follows: “Ship Moultrie Grocery Company one hundred barrels Sunlight Self Bising Flour five forty-five delivered, and book them one thousand barrels of same their option sixty days. Wire confirmation to Valdosta.” The telegram in reply to this from the Caddick Milling Company, addressed to the Valdosta Brokerage Company, was as follows: “Have booked 100 prompt. 500 within sixty days.” Then the contract, copy of which is set out, signed by the Moultrie Grocery Company was forwarded to the Caddick Milling Company. A confirmation of this, signed by the Caddick Milling Company and addressed to the Moultrie Grocery Company, dated November 10, 1914, was forwarded to the Moultrie Grocery Company, of substantially the same form as the contract signed by the Moultrie Grocery Company, except that instead of the clause “Date of shipment November and December” this confirmation has “tome of shipment November and December.” Under date of November 21, 1914, apparently the date when the confirmation of the order was forwarded, the defendant' wrote to the plaintiff a letter as follows:. “We have received signed order of 500 barrels Sunlight Flour for November and December shipment, and are enclosing confirmation for sale of same. The one hundred ordered for prompt shipment will leave here to-morrow morning. We regret that we can not book your order for more than this of Sunlight Flour.” Then follow letters from the plaintiff to the defendant, ordering out 150 barrels on December 4th, and 150 barrels on December 39th. On January 30, 1915, the plaintiff claimed to have mailed to the defendant a letter reading as follows: “Please ship us balance of Sunlight Flour, we have booked with you'oh contract.” Defendant denied receiving this letter. A letter from plaintiff to defendant under date of February 17, 1915, was as follows: “Qu January 30th we wrote you to ship balance of Sunlight we had booked with you'on contract. You failed to reply to this. We waited ten days and wired you February 10th: ‘Rush shipment flour we have ordered.’ You replied saying that you had not received specifications and had no order in effect with us. We have your confirmation for 100 barrels, dated Nov. 6th. We have your confirmation for 500 barrels, dated Nov. 30th. Our records show that you shipped 100 barrels Nov. 31st; also 150 barrels December, and the other 150 you shipped January 13th, and reached us January 36th. • We ordered the next car January 30th, as shown by above-quoted letter.. The three ears made a total of 400 barrels. You owe us 300; barrels more on contract.” In reply to this the defendant wrote to plaintiff on February 19, 1915, the following letter: “In reply to your letter of the 17th inst., our records clearly show that you bought this flour from us for ■November and December shipment. You failed to furnish shipping instructions according to contract. We do not feel that you have any right to expect us to make shipment to you in February. If you will refer to our confirmation, you will note that it states plainly the time of shipment to be November and December. • In redding the conditions of the contract,'it states, ‘Unless otherwise specified,’ in paragraph two, and it being otherwise specified, elimi- ' nates that paragraph entirely, and we do not feel that you have anyone to blame except yourself, as we complied with our part of the contract to the letter.”
    On the trial of the case the jury found for the plaintiff. The defendant filed a motion for a new trial, based upon the general grounds and upon grounds complaining of the admission in evidence of the letter from the plaintiff to the defendant dated January 30) 1915, and of the refusal of certain written requests to charge, presented by the defendant, and of failure of the court to charge in certain particulars as. set out in the motion. The trial judge overruled the motion, and the defendant excepted.

      Parher & Gibson, for plaintiff in errori W. F. Way, contra.
   Harwell, J.

(After stating the foregoing facts.) The main question in the instant ease arises upon the construction of the contract between the parties. Was the time of shipment limited to the months of November and December, or was it limited to ninety days from the date of the contract, ,to wit, November 10, 1914? If limited to the months of November and December, the plaintiff should have ordered out the flour during those months, and, having failed to do so, no right of action would lie in its favor.

The cardinal rule of construction of a contract is, of course, to give effect to the intention of the parties, if that can be arrived at. Civil Code (1910), § 4266. If there are apparently inconsistent clauses in the contract, one written upon the face of the contract in a blank prepared for that purpose, and the other printed upon the back of the contract, that which is written by the parties in the face of the contract will generally be accepted, rather than the inconsistent clause printed upon the back thereof. Civil Code (1910), § 4268 (6); Augusta Factory v. Mente, 132 Ga. 503, 508 (64 S. E. 553); Surles v. Milikin, 97 Ga. 485 (25 S. E. 322).

From the correspondence which took place between the parties in connection with the signing of the contract, immediately before and immediately thereafter, it was the evident intention of the parties that the time of shipment should be limited tp ’November and December. The first telegram, which was sent to the milling company on November 2, specified sixty days. The reply of the milling company, on November 3, said, “500 within sixty days.” (‘Italics ours.) The order from the grocery company) a copy of which is set out in the statement of facts, specified: “Date of shipment November and December.” (Italics ours.) The confirmation of this from the milling company to the plaintiff was of the same form, except that, instead of the clause above quoted, it specified, in the face thereof, “Time of shipment November and De cember.” (Italics ours.) The letter from, the defendant to the plaintiff dated November 21, which enclosed the confirmation of the order, said, “We have received signed order for 500 barrels Sunlight flour for November and December shipment (italics ours), and are enclosing confirmation of same.” It is therefore readily apparent, it seems to us, from this correspondence which took place between the parties, that it was contemplated that the shipment of the flour should be made during the months of November and December. It is proper, of course, to take into consideration this correspondence between the parties, in the construction of this contract and in arriving at the intention of the parties. Civil Code (1910), §§ 4267, 4268 (1); Central R. &c. Co. v. Macon, 43 Ga. 605, 647; Armistead v. McGuire, 46 Ga. 232; Simpson v. Sanders, 130 Ga. 265, 271 (60 S. E. 541); 17 Cyc. 669 (v); 671 (xiv), (xvi).

Moreover, upon a careful reading of the contract, we do not think that the clause in the face of the contract, limiting the shipment to the months of November and December, is really inconsistent with the provisions of the contract printed on the back thereof. These conditions printed on the back are evidently general rules governing the sale of flour and feed, adopted by the Southeastern Millers Association, and are intended to apply where the time or period of shipment is not otherwise specified in the contract. The second paragraph of these printed conditions begins with the clause “Unless otherwise specified (italics ours), purchases must be ordered out within 30 days from date of contract, with a maximum possible limit of 90 days from date of contract.” So that this printed condition, as set out in paragraph 2, fixing a maximum possible limit of 90 days from date of contract, applies unless it is otherwise specified in the contract. A reasonable construction to be placed upon this clause of the contract is that this maximum possible limit of 90 days from date of contract will not apply where the parties fix in the face of the contract a time dr period of shipment. It is intended, by this paragraph 2, to provide for a limit within which purchases must be ordered out where the contract itself does not provide for such limitation. The remainder of this paragraph provides for carrying charges to be paid by the buyer, under certain conditions, and for certain credits to be given to the buyer, under certain conditions therein specified. We think therefore that there is really no inconsistency in the contract, since it is otherwise specified and fixed by the terms of the contract that the time of the shipment should be the months of November and December.

A contract of the precise form of the one before this court was construed by the Supreme Court of Alabama, in the case of Hopkinsville Milling Company v. Gwin, 179 Ala. 472 (60 So. 270), except that in the Alabama case it was provided, in the face of the written contract for the sale of the flour, that the date of the shipment was at “buyer’s option.” On the back of the order appeared the same printed conditions as in.the contract now under consideration, viz.: “Unless otherwise specified, purchases must be ordered out within thirty days from date of contract,” .etc. The suit in that case was by the seller against the buyer, for a breach of contract in declining to order out the flour according to the terms of ■the contract and to accept the shipment. The judgment was for the defendants, and the plaintiff appealed/ It was contended by the plaintiff, the milling company, that the phrase “Buyer’s option,” written on the face of the order, was substituted for and took the place of the printed provisions on the back, referring to the dates of shipment and of delivery; or in other words, that this order was one within the protection of the printed provision, “Unless otherwise specified,” and that the terms and dates of delivery were .otherwise specified in this contract. The construction contended for by the vendees, and the one which seems to have been adopted by the trial court, was that the printed condition on the back of the order controlled. The Supreme Court of Alabama reversed the judgment of the court below, 'and held that the stipulations on the face of the contract governed. See also King v. Faist, 161 Mass. 449 (37 N. E. 456).

The time of. delivery in the instant case is of the essence of the contract, and it was obligatory upon the buyer to order out the flour within the limit provided by the terms of the contract, i. e. during the months of November and December; and)- having failed to do so, it would have no right of action against the defendant. Gude v. Bailey, 4 Ga. App. 226 (61 S. E. 135); 35 Cyc. 175 (7); Augusta Factory Co. v. Mente, supra; Henderson Elevator Co. v. North Ga. Milling Co., 126 Ga. 279, 281 (55 S. E. 50); Savannah Ice Co. v. American Transit Co., 110 Ga. 142 (35 S. E. 280); Big Muddy Coal &c. Co. v. St. Louis &c. Coal Co., 176 Mo. App. 407 (158 S. W. 420); Beck &c. Co. v. Colorado Milling Co., 52 Fed. 700 (3 C. C. A. 248); Cleveland Rolling Mill Co. v. Rhodes, 121 U. S. 256 (7 Sup. Ct. 882, 30 L. ed. 920); Norrington v. Wright, 115 U. S. 188 (6 Sup. Ct. 12, 29 L. ed. 366).

Under the construction which we place upon this contract, it being undisputed that the 200 barrels of flour were not ordered out during the months of November and December, the recovery by the plaintiff was not authorized, and a new trial necessarily results.

This question being controlling in the case, it is not necessary to consider the other grounds of the motion for a new trial.

Judgment reversed.

Broyles, P. J., and Bloodwortli, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    9400.
    TIFT’S GARAGE v. MORRIS.
    • 1. The petition set forth a cause of action, and the court did not err in overruling the general demurrer.
    2. The special grounds of demurrer, not being argued in the brief of counsel for the plaintiff in error, will be treated as abandoned. The same may also be said of the first special ground of the motion for a new trial.
    3. The excerpts from the charge of the court, complained of in the 2d and 3d special grounds of-the motion, were not erroneous for any reason assigned.
    4. Under the facts as they appear in the record, there was no error in refusing to give the requested instruction set out in the 4th special ground of the motion.
    5. There is no merit in the ground that the plaintiff failed to prove his case as laid, or in the general grounds of the motion for a new trial. The issues in the case were fully and fairly submitted to the jury by the charge of the court, the verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.
    Decided July 12, 1918.
    Action for damages; from Tift superior court—Judge Eve. November 1, 1917..

      Fulwood & Hargrett, for plaintiff in error.

      C. A. Christian, B. D. Smith, contra.
   Harwell, J.

Morris brought suit against Tift’s Garage for damages to an automobile. The evidence supported the allegations of the petition, and briefly stated showed the following facts: Morris drove his car up in front of the garage, and went into the office to purchase a casing and some gasoline. He applied to Mr. Scott, a young men in the office, for the casing, and, as Scott started off, Morris asked if there was somebody who could fill his car with gas, and Scott replied “Yes, the fellow right outside there.” Morris then approached a negro in the garage outside of the office and asked him if he worked there, and, upon receiving the reply that he did, told him that he wanted five gallons of gasoline. It was testified that the negro was the only person outside the office in the garage. The tank was inside the garage and just outside the office. The negro drove the car in at a high and negligent rate of speed, aúd in doing this damaged the car as alleged in the petition. Morris sent the car to Atlanta and had it repaired, and then brought this suit, alleging that the damage was caused .by the negligence of the defendant’s employee. The defendant admitted that the negro was employed in the garage, but denied that its employee Scott referred Morris to the negro in order to get his car filled with gasoline. The defendant claimed that the negro’s duties were simply to clean up around the garage and to fill cars with gasoline, but that they did not employ him or expect him to drive cars into the garage for that purpose. The defendant insisted that the damage was caused by Morris voluntarily having the.negro to drive the car into the garage without any authority from the defendant, and that it was not liable to the plaintiff in any sum. The jury found in favor of the plaintiff. The case came to this court on exceptions to the overruling of the demurrer to the plaintiff’s petition, and to the refusal to grant a new trial.

It is not deemed necessary to elaborate the headnotes.

Judgment affirmed.

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


author: Luke, J.

text:
    9107.
    BONNER v. STANDARD OIL COMPANY et al.

    The petition as finally amended set forth a canse of action against the Standard Oil Company and C. Byron Ivey, but not against the City of Milledgeville; and the trial court therefore erred in sustaining a general demurrer as to the two defendants first named.
    Decided July 30, 1918.
    Action for damages; from Baldwin superior court—-Judge Park. July 12, 1917.

      Allen & Pottle, for plaintiff.

      King & Spalding, Sibley & Sibley, Livingston Kenan■/ for defendants.
   Luke, J.

0. H. Bonner filed suit against the Standard Oil Company, C. Byron Ivey, and the Mayor and Aldermen of the City of Milledgeville, as joint tort-feasors. The petition alleged substantially the following facts: That the Standard Oil Company, by and with the knowledge of the mayor and aldermen of the City of Milledgeville, conducted, at'the corner of Hancock and "Wilkerson streets, one of the most frequented and used points in the~ city, a business of selling certain oils, and on the day of the injury (as well as several days prior thereto) was engaged in advertising its oils through its agents, C. Byron Ivey and L. W. LéBland; that “a part of their scheme of advertising was cleaning out the oil in the engines and motors of automobiles, for the purpose of refilling said crank-case of said automobiles with their brqnd of oil,” and that one Satterfield, the owner of an automobile, delivered his car to the said Standard Oil Company’s agents, at their place of business, for the purpose of having the oil and secretions in the crank-case of his machine cleaned out and refilled with the special brand of oil that the said company was advertising; that in cleaning the motór of Satterfield’s ear of oil and sediment, kerosene was used instead of > gasoline, and the crank-case was filled with t kerosene, and the engine started; that the combustion of the kerosene caused a large volume of smoke to be emitted from the exhaust tube of said car, filling a space in rear of the machine from 30 to 40 feet in length and 10 to 15 feet in width and height; that this cloud of heavy, dense smoke was so thick that any person in the midst thereof was utterly unable to see any object for the distance referred to; that on the day of the injury, the petitioner was walking up Hancock street on his way to the post office, and that “just as he was passing in the rear of said car and during the running of said car in the manner as hereinbefore alleged, there was all at once a great Volume of smoke, emitted from said car, that completely enveloped the said Bonner, and to such an extent that he could not see his hand before him, and just at this moment one Jack Edwards, who was driving an automobile, was coming up Wilkerson street, which street intersects with Hancock street at this particular point, and he too and his machine were enveloped by the same cloud of' smoke, at which time the said machine collided with Bonner, and the said Bonner was knocked down and violently thrown upon the paved streets,” with such force as to render him totally unconscious for several hours, and inflicted severe injuries upon him. It was alleged distinctly that Edwards, at the time of the collision was driving his car slowly (at a rate of speed not exceeding 6 miles per hour) and exercising all due .diligence. The petition as finally amended alleged that “said obstruction in the street of the city of Milledgeville hereinbefore set out was maintained by said Standard Oil Company for four or five days prior to plaintiff’s injury, for so long a time that notice of its existence is and should be conclusively presumed on the part of said city.” Petitioner further alleged, that John H. Lawrence, chief of police for said city, had full notice and knowledge' of thg existence and maintenance of said nuisance and obstruction, and that it was his. duty to see that the streets of said city were kept free of obstructions. Specific allegations of negligence were made as to each defendant. The defendants filed a general demurrer on the following grounds: “(1) The allegations of the petition showed that the negligence alleged against the several defendants was not the proximate cause of the plaintiff’s injury. (2) That under the allegations of the petition the direct, immediate, controlling and predominating cause of the injury was the collision between the plaintiff and an automobile being driven by one Jack Edwards, in the operation of which automobile none of the defendants are charged with participation or knowledge. (3) That the allegations of the petition showed that the injuries received by the plaintiff were not the natural or probable consequences of any of the alleged acts of negligence charged against the defendants, or any of them, but that the proximate cause of the injury was the act of Edwards, who drove the automobile, intervening between the injury and said several alleged acts of negligence charged against the defendants.” Upon hearing the petition on general demurrer, the trial court entered the following judgment: “The within general demurrer is hereby sustained and the within case is hereby dismissed with costs against the plaintiff.” To this judgment the plaintiff excepts.

The judgment of the court below, sustaining the general demurrer, is based on the ground that the petition showed on its face that the alleged negligent acts of defendants were not the proximate canse of the injury. Whether or not the judge was right in so ruling is the controlling question for adjudication by this court. After giving the case (which is a novel one on its facts) a most thorough and painstaking investigation, we have reached the conclusion that the plaintiff is entitled to a reversal. As we view the allegations of the petition, there were two causes contributing to the plaintiff’s injury,— (1) the great volume of smoke, emitted from the rear of the car that the Standard Oil Company was demonstrating with, which enveloped the plaintiff, and (2) the automobile driven by Edwards. These two causes were concurrent, and the principle of law is well settled that where two concurrent causes operate in causing an injury, there can be a recovery against both or either one of the parties responsible for the concurrent causes. Barrett v. Savannah, 9 Ga. App. 642, 643 (72 S. E. 49). Attention is also directed in this connection to. the cases of Wilson v. Atlanta, 60 Ga. 474; Trippe v. Atlanta, 68 Ga. 834; Jackson v. Buena Vista, 88 Ga. 466 (14 S. E. 867); Bryan v. Macon, 91 Ga. 530 (18 S. E. 351); L. & N. R. Co. v. Barnwell, 131 Ga. 791 (63 S. E. 501); Harrell v. Macon, 1 Ga. App. 413 (58 S. E. 124). Even conceding that the plaintiff would not have been hurt but for the intervention of the car driven by Edwards, yet he might still be entitled to recover if his injuries would not have beqn sustained but for the presence of the large, densp, cloud of smoke. It was, therefore, clearly issuable whether or not the concurrent acts of both Edwards and the Standard Oil Company, or the separate acts of either one,, were the proximate cause of the collision, and the court erred in holding, as a matter of law, that the injury complained of was not the natural or proximate result of the defendant’s conduct or negligence, but resulted through an intervening agency (the car driven by Edwards), not invoked or brought into play by the defendants. In other words, the court, should have' left it to a jury to say what wás the proximate cause of the plaintiff’s injury. "Questions of negligence are for the jury alone, and the determination of the proximate cause is involved and essential to the ascertainment of what negligence, as well as whose negligence, the injury.is properly to be attributed to. A court can no more determine upon an issue as to what particular act or circumstance was the proximate cause of an alleged injury than it can determine that the same particular act was an act of negligence; for the jury might determine that the act which the court held was the proximate cause was not negligence, while they might be of the opinion that an act adjudged not to be the proximate cause of the injury was negligence.” White v. Seaboard Air-Line Ry., 14 Ga. App. 139 (1 b) (80 S. E. 667). The question of proximate cause is a very much involved and discussed subject, so much so that no inflexible rule can be laid down, and consequently each case depends for solution upon its own peculiar facts. It would, therefore, serve no good purpose to continue our opinion on this line by quoting from various and numerous cases involving the doctrine of proximate cause and narrating at length the facts upon which the decision of each is based. It may not, however, be amiss to direct attention to the following cases which have aided us no little in reaching a conclusion in the instant case: Southern Ry. Co. v. Webb, 116 Ga. 152 (42 S. E. 395, 59 L. R. A. 109); Christo v. Macon Gas Co., 18 Ga. App. 454 (89 S. E. 532); Payne v. Borne Coca-Cola Bottling Co., 10 Ga. App. 762 (73 S. E. 1087); Valdosta Street Ry. Co. v. Fenn, 11 Ga. App. 586 (75 S. E. 984); Atlantic Coast Line R. Co. v. Barton, 14 Ga. App. 160 (80 S. E. 530); Sparta Oil Mill v. Russell, 6 Ga. App. 293; Sedlmeyr v. Fitzgerald, 145 Ga. 161 (88 S. E. 923); Mayor &c. of Unadilla v. Felder, 145 Ga. 440 (89 S. E. 423). The case most strongly relied upon by counsel for defendants in error is that of Shaw v. Macon, 6 Ga. App. 306 (64 S. E. 1102). That case and the ease at bar'are somewhat akin on facts, but not so much so as to cause a conflict with anything herein ruled. In the Shaw case the defendant permitted one Small to block up a small part of a street in the City of Macon by wagons and cotton bales, leaving only a narrow driveway for travel, barely sufficient for two ordinary vehicles to pass on the street. The plaintiff, who was riding a bicycle, was endeavoring to pass through this narrow space, when he observed one G-uerry driving a horse hitched to a buggy and coming from the opposite direction; he immediately stopped his wheel and, in an effort to get out of the way, drew himself close up against the cotton, but, before he could climb to the top of the cotton, the horse and buggy reached him and the small end of the buggy shafts struck his right arm, causing injury for which he sued. The Supreme Court sustained á demurrer to the petition in that ease, on the ground that the negligence charged against the defendants was not the main, controlling, predominating cause of his injury. The all-controlling distinction between that case and the instant case is that in the Shaw ease the injury was caused by the act of a third person, in full possession of his faculties and entirely capable of intelligent action; whereas in the case at' bar the smoke, which enveloped Edwards and the car he was driving, deprived him of his faculty of sight for the time being, and rendered him incapable of any intelligent act whatever.

What is hereinbefore said applies to the Standard Oil Company, and C. Byron Ivey only, as we are of the opinion that the petition does not set forth a cause of action against the City of Milledgeville. The judgment of the lower court is therefore reversed as to the defendants Standard Oil Company and C. Byron Ivey, and affirmed as to the defendant City of Milledgeville.

Judgment reversed in part, and affirmed in part.

IVade, O. J., and Jenkins, J., concur.


text:
    9135.
    Mills v. Kenyon Printing & Manufacturing Co.
    Decided July 30, 1918.
    Certiorari; from Pike superior court—Judge Searcy. July 19, 1917.

      Redding & Lester, for plaintiff in error. J. M. Smith, contra.
   Luke, J.

1. While ordinarily, as between the consignor and the consignee of goods which the consignee has directed the consignor to ship to him, delivery by the consignor to the carrier of the goods is delivery to the consignee, yet where the order and contract for the goods names the carrier to whom they are to be delivered for shipment, delivery to a carrier other than as contracted is not delivery to the consignee. Especially is this true in this case, where the uncontradicted evidence shows that the goods were never received by the consignee.

2. Upon the petition for certiorari and the answer thereto, the judge of the superior court erred in overruling the certiorari.

Judgment reversed.

Wade, 0. J., and JenMns, J., concur.


author: Jenkins, J.

text:
    9286.
    Coursey, sheriff, for use, etc., v. Consolidated Naval Stores Company et al.

    Decided July 30, 1918.
   Jenkins, J.

1. In a suit on a forthcoming bond given in a claim case, it is incumbent upon the plaintiff to show that the property has been found subject to the'execution, and either that a demand for the property has been made and refused, or that it was not produced at the time and place of sale as designated by the advertisement. Stinson v. Hall, 54 Ga. 676. Where the record, as in this case, fails to disclose any such demand, and proof of tlie advertisement has been excluded by the court, and there is no exception taken to this ruling, a breach of the obligation would ordinarily fail to appear. But since, under the evidence in this case, the jury were authorized to And that the claimant who gave the' bond appropriated the property by a subsequent sale thereof, the evidence was sufficient to establish a breach of its obligation, and to show that an advertisement was unnecessary, as such a sale would put it beyond the power of the obligor to deliver the property. Lassiter v. Byrd, 55 Ga. 606.

2. Where in such a suit the defendant named as obligor in the bond files a plea of non est factum, denying that the person signing the bond as agent was authorized so to act, it is incumbent upon the plaintiff to carry the burden of proof by establishing the authority of the one thus acting as agent to bind his principal. Bank of Norwood v. Chapman, 19 Ga. App. 709 (6), 710 (92 S. E. 225). But such proof may be supplied by showing a ratification by the principal of the act of the agent; and if shown, the ratification will relate back to the act ratified. Civil Code (1910), § 3591.

3. If the principal, with full knowledge of all the material facts, accepts and retains the benefits of the unauthorized act of an assumed agent, he will ordinarily become bound thereby. Haney Co. v. Hightower Institute, 113 Ga. 289, 296 (38 S. E. 761); Roberts v. Bank of Eufaula, 20 Ga. App. 221 (3), 226 (92 S. E. 1015); Sutton v. Farmers Warehouse Co., 11 Ga. App. 338, 340 (75 S. E. 336). Whether or not such a ratification has resulted is usually a question of fact, to be determined by the jury, and not a question of law for the court. Burr v. Howard, 58 Ga. 564; Dixon v. Bristol Savings Bank, 102 Ga. 461 (31 S. E. 96, 66 Am. St. R. 193); McKinnon v. Hope, 118 Ga. 462 (45 S. E. 413).

4. There was evidence going to show that after the execution of the bond sued on, the obligor proceeded to sell for its own benefit the property embraced in the claim; and evidence was offered for the purpose of showing that the person conducting this sale on behalf of the obligor was previously notified of the pendency of the claim proceedings, and was shown the bond purporting to have been given by defendant therein. The exclusion of the evidence thus offered was erroneous, and the issue as to whether or not the defendant thus ratified the act of its assumed agent in the execution of the bond, by receiving with knowledge a benefit thereunder, should have been submitted to the jury.

Judgment reversed.

Wade, C. J., and Luhe, J., concur.

Action upon bond; from city court of Swainsboro—Judge Kirkland. August 28, 1917.

Williams & Bradley, for plaintiff.

J. Alex. Smith & Son, Travis & Travis, F. H. Saffold, for defendants.


text:
    9442.
    Johnson v. Estate of Sam Farkas.
    Decided July 30, 1918.
    Writ of error; from Worth superior court.
    The bill of exceptions in this case recites that “in the case of E. M. Johnson v. Sam Earkas, Jonas McKelvin, and L. M. Potts, sheriff, returnable to the April term, 1914, of the superior court of Worth county, being a rule to distribute funds, on November 21st, 1917, the same was called for trial; and it being agreed by counsel that the judge of the superior court should sit as a court and a jury, he proceeded with the trial.” The evidence adduced upon the trial and the judgment of the court are then set out. It appears from the record that Sam Earkas died before the hearing took place in the lower court. The judgment to which exception' is taken is as follows: “By agreement of counsel and all parties, the court, sitting as a jury, after hearing the evidence, awards the entire funds to the defendant,-; and it is adjudged that the ex-sheriff, L. A. Potts, deliver said funds to the defendant, executor of the estate of Sam Earkas.” The defendant in error named in the bill of exceptions is “Estate of Sam Earkas.” Service of the bill of exceptions was acknowledged by attorneys signing as “Attorneys for estate of Sam Earkas, defendant in error.” Passmore & Forehand, for plaintiff.

      Perry & Williamson, Leonard Farkas, for defendant.
   Jenkins, J.

A party defendant in error is essential to the prosecution of a writ of error, and where no one is named or otherwise disclosed by the bill of exceptions as defendant in error, the writ must necessarily be dismissed; for without a defendant in error there is no case. Ray v. Pease, 112 Ga. 675 (37 S. E. 875); Branch v. Mallory, 8 Ga. App. 797 (70 S. E. 177); Hendricks v. Rogers, 22 Ga. App. 357 (95 S. E. 1009); Knox v. Greenfield Estate, 7 Ga. App. 305 (66 S. E. 805).

Writ of error dismissed.

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


author: Bloodwobth, J.

text:
    8997.
    FARROW v. STATE MUTUAL LIFE INSURANCE CO.
    The trial judge properly sustained the demurrer to the petition.

      (a) No breach of any material condition of the policy is sufficiently alleged.
    (b) Where a contract of life insurance is void ab initio, the insured, upon proper pleadings, would have the right to recover all the premiums paid ■ thereon.
    (c Where the risk has once attached under a policy, and there has been Íno fraud, a recovery of all the premiums paid can not be had because of a breach of some provision of the contract.
    Decided July 30, 1918.
    Action for breach of contract; from city court of Floyd county —Judge Nunnally. May 26, 1917.
    Ocie D. Farrow sued the State Mutual Life Insurance Company, alleging in part that on April 21, 1909, he insured his life in that company under a policy which provides for an annual premium of $32.62, and that the said premium “may be reduced” by -dividends allowed. The 7th, 8th, 9th, 10th and 11th paragraphs of the petition are as follows: “ Seventh: Plaintiff has paid to defendant all sums required of plaintiff under said contract of insurance, and has performed all the other obligations resting upon plaintiff under said policy, and said policy is a live policy and of full force and effect at this time. Eighth: Under its terms said policy has a cash surrender value of $104 at the end of its sixth year. The sixth year of said policy expired on April 21, 1915. Said policy provides that upon the application of the insured, said cash sur-render value will be paid to the insured'by the company. Ninth: Plaintiff has demanded of defendant the payment to plaintiff of the said cash surrender value of said policy, but defendant has refused -to pay said cash surrender value or any part thereof. Tenth: Plaintiff shows that by refusing to pay plaintiff the cash surrender value of said policy as aforesaid, defendant has breached its said contract of insurance with plaintiff, feleventh: By reason of said breach of contract, by defendant, plaintiff is entitled to recover of defendant the total amount of premiums paid by defendant [plaintiff?] on said policy, together with lawful interest from the date of each of said payments.” A copy of the policy is attached to the petition, and contains the following provision: “If the insured makes written application within six months after default in payment of premiums, the company will extend this policy, as a term policy for its full amount; or, upon surrender of this policy, will issue a participating paid-up policy, or will pay the cash surrender value, as stated in the table on the third page hereof under the respective heads.” The policy had attached to it a table of “guaranteed surrender values,” and this showed that the cash value of the policy at the end of the sixth year was $104. A general demurrer to the petition was sustained, and the plaintiff excepted.

      Brewster, Howell & Heyman, Mark Bolding,dor plaintiff.

      Maddox & Boyal, Alex. 0. King, for defendant.
   Bloodwobth, J.

(After stating the foregoing facts.) The demurrer to the petition in this case was properly sustained. It will be noted that the suit is not for the “guaranteed surrender value” of the policy, but for the entire amount of premiums paid. Admitting every fact alleged, plaintiff would not be entitled to recover all the premiums which he had paid on this policy. This is the measure of damages in those cases only where the policy, from fraud or other cause, is void ab initio. This proposition we will discuss later. In the broadest sense two propositions are presented for solution by the Tecord in this case: (1) Does the petition show such a' breach of the contract of insurance as would authorize a cancellation thereof? (2) Granting that á suit would lie, is the amount of premiums paid on the policy the proper measure of damages under the facts stated in the petition? These •two proposition we will discuss jointly, as they are interlocked in some of the decisions. The petition is so uncertain and indefinite ■ that it is impossible to determine from it which one of two of the provisions of the contract the plaintiff sought- to allege was breached. One of, these, copied above, provides .that “if the insured makes written application within six months after default in payment of premium, the company . . will pay the cash surrender value, as stated in the table on the third page hereof under the respective heads.” The other, the fourth of five “dividend options,” is as follows: “Receive the dividend, together with the guaranteed cash value, and discontinue this policy.” The contract provides also that “A dividend will be declared at the end of the first policy year, and at the end of each year thereafter, during the continuance of this policy. Dividends may be received by the insured in accordance with any one of thé following five dividend options.” It is further provided by the contract that option four, above quoted, will not be allowed before the end of the third policy year. The petition should have been definite enough to determine which one of these provisions the pleader claimed had been breached, as the conditions under which the “guaranteed surrender value” could be obtained were different in each. The allegation in the petition in reference to the demand made by the insured upon the company is as follows: “Plaintiff has demanded of defendant the payment to plaintiff of the said cash surrender value of said policy, but defendant has refused to pay said cash surrender value or any part thereof.” As the petition'stands, it does not sufficiently allege a breach of either of these provisions.

If for any reason the policy had been absolutely void from its inception, then, upon proper pleadings, a suit would lie for the recovery of all the premiums paid thereon. If the contract is void, the insurance company has run no risk. Lord Mansfield said. many years ago: “When the risk has not been run, whether its not having been run was owing to the fault, pleasure, or will of the insured, or to any other cause, the premium shall be returned.” This principle' is applicable whether one or more premiums have been paid on a void policy. “If the policy was void ah initio, the premiums paid, with interest thereon, is the correct measure of damages, for the reason that in such eases no services have been rendered and no benefits have been received. Fisher v. Ins. Co., 163 Mass. 336, 38 N. E. 503; Ins. Co. v. McCormick, 19 Ind. App. 53, 49 N. E. 44, 65 Am. St. R. 392; Ellis v. Friendly Ass’n, 16 Pa. Supr. Ct. 607.” Supreme Lodge K. of P. v. Neeley (Tex. Civ. App.), 135 S. W. 1049 (6). If the contention of the plaintiff should be carried out, the result would be that the same rule would apply to this case as when the policy was void ab initio; but this is not the proper rule of damages under the pleadings in this case. The policy was admittedly valid, the premiums thereon had been voluntarily paid, the policy had been in force about six years, and there was no default in payment of the premiums at the time suit was brought. No fraud had been practiced on the insured, and no such claim was made in the pleadings. Therefore, the only reason that the plaintiff could urge for a cancellation of the contract and the return of all the premiums was the failure of the company to pay the “cash surrender value” of the policy as above set out, and this is not a sufficient reason for such action. But the petition does allege, “Plaintiff shows that by refusing to pay plaintiff the cash surrender value of said policy, as aforesaid, defendant has breached its said contract of insurance with plaintiff.”

What is a “contract of insurance,” of life insurance, under the laws of Georgia? Our Civil Code (1910), § 2496, says: “An insurance npon life is a contract by which the insurer, for a stipulated sum, engages to pay a certain amount of money if another dies within the time limited by the policy. The life may be that of" the assured, or of another in whose continuance the assured has an interest.” The insurance.company in the instant case agrees' to pay to the estate of the insured $1,000 “immediately upon receipt and approval of proofs of death” of the insured. This is the main, the principal, the prime contract. All other conditions' and stipulations are secondary and subordinate. The petition does not show that the insurance company has done anything even to indicate a breach that is vital to the main contract, or anything that amounts to “an intimation of.an intention to abandon and altogether to refuse performance of the contract.” Norrington v. Wright, 115 U. S. 188, 200 (6 Sup. Ct. 12, 29 L. ed. 366); Blackburn v. Reilly, 47 N. J. Law, 290 (2) (1 Atl. 27, 54 Am. R. 159). In Weintz v. Hefner, 78 Ill. 27, the 2d and 3d headnotes are as follows: “2. In order to justify an abandonment of a contract, and the proper remedy growing out of it, the failure of the opposite party must be a total one. The object of the contract must have been defeated or rendered unattainable by his misconduct or default. 3. For partial dereliction and non-compliance in matters not necessarily of first importance to the accomplishment of the object of the contract, the party injured must seek his remedy upon the stipulations of the contract itself.” In the instant ease what “the stipulations of the contract itself” are have been heretofore’ pointed out. In the case of Lewis v. New York Life Ins. Co., 181 Fed. 433 (104 C. C. A. 181), Archbald, District Judge, said: “But never does the failure to perform afford ground for rescission, unless it be such as defeat the object of the contract, and not simply go to a subsidiary part of it, which can be fully compensated in damages. 9 Cyc. 635, 650; 24 Am. & Eng. Enc. Law (2d ed.) 644. As is said in Weintz v. Hafner, 78 Ill. 27: ‘For partial dereliction and noncompliance in matters not necessarily of first importance to the accomplishment of the object of the contract, the party injured must still seek liis remedy upon the stipulations of the contract itself/ Or, as is put in City of Elgin v. Joslyn, 136 Ill. 525, 26 N E. 1090: ‘A slight or partial neglect to observe some of the terms or conditions of a contract will not justify a rescission or abandonment/ It is only where the breach goes to that which is vital that this course is open. But, if that be so, the plaintiff had no right to throw up the policy and sue for the premiums simply because the company failed to honor, offhand, the additional loan required of them. The refusal, under the circumstances, can not be said to have evinced an intent not to be bound by or live up to the terms of the contract, if that is the criterion. Indeed, it is a question whether, rightly considered, there was a refusal at all; the plaintiff not having given time for it. And much less can it be said that, the company having broken one part of the contract, there was no assurance that they would regard the rest of it, which magnifies the breach out of all proportion to its real significance. The fact is that the agreement for a loan was merely subsidiary to the main purpose of the policy, which was to insure the plaintiff for the benefit of the party designated; the right to a progressive loan as the policy aged, being an accommodation altogether secondary and subordinate, valuable, no doubt, but not vital. It certainly was no more important than the right, under certain conditions, to a paid-up policy; and yet it has been held, in numerous eases, that the breach of this provision does not entitle the insured to recover the premiums paid as upon a rescission. Watts v. Phœnix Mut. Life Ins. Co., 16 Blatchf. 228, Fed. Cas. No. 17, 294; Phoenix Mut. Life Ins. Co. v. Baker, 85 Ill. 410; Rumbold v. Penn Mut. Life Ins. Co., 7 Mo. App. 71; Union Central Life Ins. Co. v. McHugh, 7 Neb. 66; Insurance Co. v. Matthews, 8 Lea (Tenn.), 499. And the same ruling was made with regard to the refusal to permit a change of the beneficiary. Harris v. Scrivener (Tex. Civ. App.), 78 S. W. 705. And the failure to return a part of the premiums, as agreed in the policy. Insurance Co. v. Heidel, 8 Lea (Tenn.), 488. It is true that, in each of these cases, the action was for demages for a breach of the contract, and not in terms for the premiums. But it was held in each, which is the significant thing, that the premiums were not a measure of the damages.”

It is true that there is a line of cases in which it has been held that'where the policy has been improperly canceled, all premiums paid may be recovered. However, an examination of these decisions will show that none of them are applicable to the facts of the instant case. Courts of other States and writers of text-books have criticised the reasoning and conclusions of these cases as unsound. In the case of Supreme Lodge K. of P., supra, Jenkins, J., said: “The reasoning of the courts holding that the premiums paid, with the interest thereon, is the proper measure of damages, where an insurance company has undertaken to repudiate its'contract, is not at all satisfactory to our minds. . . ‘All of the courts, we believe, except the North Carolina court, base their holding that the premiums paid, with interest on the same, is the proper measure of damages upon the proposition that, inasmuch as the insured has not died, the company has been out nothing, and the insured has received nothing. This assumed premise has been rejected by a majority of the courts, and is, to our minds, as baseless as that one has received no consideration for a premium for fire insurance, because his house has not burned. It is a well-established rule that, if a party sues for the breach of an executory contract, he must account for the benefits, if any, which he has received under such contract. Richards v. Allen, 17 Me. 296. In Speer v. Insurance Co., 36 Hun (N. Y.), 323, the court says: ‘The recovery of the premiums and interest could be sustained only on the ground of a total failure of consideration. When the policy was valid up to the time of its cancellation,' there is no such failure.’ . . We doubt if'the cases holding that the premiums paid, with interest on the same, is the measure of damages where the contract has been wrongfully repudiated, is satisfactory to those jurisdictions where the same has been held, though the courts there may feel constrained to follow them.” An examination of many of the decisions where the recovery was for the amount of the premiums will show that in those eases the question as to the measure of damages was not raised.

The following citations support the ruling made in the present case: “The defendant carried the insurance upon the life of plaintiff’s husband ' for the benefit of the plaintiff for six years and earned the premiums paid therefor, and the plaintiff, is not entitled to recover them back.” McElwain v. Metropolitan Life Ins. Co., 50 App. Div. 66 (63 N. Y. Supp. 895). Where a risk once attaches under a valid policy, premiums paid .upon it during its continuance can not be recovered back as for money had and received. Continental Life Ins. Co. v. Houser, 89 Ind. 858. I “The rule is well established that, in the absence of fraud, where I the risk has once attached under a policy, a recovery of premiums I paid can not be had because of a breach of some provision of the policy.” Harris v. Scrivener (Tex. Civ. App.), 78 S. W. 705. “Where the risk has once attached, premiums can not be recovered, although the company may subsequently wrongfully declare a forfeiture of the policy.” Standley v. Northwestern Mutual Life Ins. Co., 95 Ind. 254. “The poliqy was valid in its inception, and \there was for a time a risk, and the general rule i's'that where the risk attaches premiums can not be recovered from the company. Bliss Life Ins. 750; May, Ins. § 567.” Continental Life Ins. Co. v. Houser, 89 Ind. 258.

. The following citations show the true measure of damages where the company has so acted as to authorize a cancellation of the contract: “The measure of damages would be the cash surrender value of the policies.” Metropolitan Life Ins. Co. v. McCormick, 19 Ind. App. 49, 52 (49 N. E. 44, 65 Am. St. R. 398). “The measure of damages for the wrongful cancellation of a life policy is the value of the policy at the time of its cancellation.” Supreme Lodge K. of P. v. Neeley, supra. “The measure of damages for the breach of an agreement to deliver a paid-up policy of insurance, where there is an existing risk and the premiums paid were earned, is the value of the paid-up policy at the time of the demand and refusal, and interest.” Rumbold v. Penn Mut. Life Ins. Co., 7 Mo. App. 71. “If a policy of insurance provides that the assured, after the payment of three annual premiums- and the surrender of the original policy, may have a paid-up policy for the amount of the premiums actually paid, subject to the unpaid notes given, the measure of damages for a refusal to give a paid-up policy after performance of the conditions precedent 'is not the amount of the premiums paid, less the notes given, but the actual value of such a policy.” Phoenix Mut. Life Ins. Co. v. Baker, 85 Ill. 411 (4). See also Union Central Life Ins. Co. v. McHugh, 7 Neb. 66.

In discussing the case of Lovell v. Insurance Co.; reported in 111 U. S. 264 (4 Sup. Ct. 390, 28 L. ed. 423), Circuit Judge Hook, in the ease of Mutual Reserve Fund Life Ass’n v. Ferrenback, 144 Fed. 342, 346 (75 C. C. A. 304), said: “In.the Lovell case, supra, Mr. Justice Bradley, in speaking of the complainant’s claim, said: ‘He demands a return of all the'premiums paid by him, with interest, less the amount of his premium note;. and that said 'note shall be delivered up to be cancelled. But' we do not think that he is entitled to a return of the full amount of his premiums paid. He had the benefit of insurance upon his life for five years, and the value of that insurance should be deducted from the aggregate amount of his payments.’ In some of the cases sustaining a recovery for all-of the premiums paid, the Lovell case was distinguished and held inapplicable. Counsel also seek to distinguish it from the case at bar. But the fact remains that theré was in that case a wrongful cancellation of the policy by the company, and the insured, as .is the case here, regarded it as terminated, and sued for damages. We regard the doctrine there announced as precluding a recovery, for the wrongful cancellation of a policy, of that .portion of the premiums paid which represents the actual cost of the insurance during the years of its uncontested validity. It is true that the policy theré involved was of the level-premium character, but it is also true that that portion of the premiums paid by Lovell which was excluded by the Supreme Court from the recovery is precisely like all of the premiums paid by Lambert. Recovery of the part of the premiums representing the cost to the company of carrying the risk was denied Lovell, because he .had received the benefit thereof. If the contention now made is ad-. mitted, this anomalous result will ensue: If an insured has paid, as Lambert did,,premiums representing only the actual cost of the insurance, he may, upon wrongful cancellation of his policy, recover all of the premiums so paid; but if the premiums included, as in' the Lovell case, an excess over actual cost, he can recover only.such excess.”

Learned counsel for the plaintiff, insist that the question as to whether or not he is entitled to recover in the instant case is settled by the principle announced by the Supreme Court of Georgia in the case of the Supreme Council American Legion of Honor v. Jordan, 117 Ca. 808 (45 S. E. 33). We can not agree with this contention. In that case “a certificate issued by a benefit society provided that ‘in consideration of the full compliance with all the by-laws’ of the society, then existing or thereafter adopted, the society ‘ agrees to pay’ certain named beneficiaries five thousand dollars, upon satisfactory proof of death while in good standing of the person insured. Subsequently to the date of tfie certificate a by-law was adopted providing that two , thousand .dollars should be thq highest amount paid on any benefit certificate theretofore or thereafter issued.” The Supreme Court held: “(1) That the agreement to pay five thousand dollars was a contract which could not 'be changed by a by-law so as to reduce the amount agreed to be paid. (2) That the passage of such a by-law and an attempt to enforce the same by tendering to the insured a certificate for two thousand dollars amounted to a repudiation of the contract, and gave the holder of the certificate the right, at his option, to bring an action against the society for the recovery of the amount paid as premiums, with interest .thereon from the time each was paid.” Mr. Justice Fish, in .the opinion, said: “There is, in the portion of the certificate quoted, an absolute promise by the society to pay five thousand dollars, no more, no less, upon satisfactory proof of the death of Jordan, on one • condition only, and that is, a full compliance by him with all the provisions of the by-laws then existing or thereafter enacted. The promise, so far as the amount is concerned, is unconditional. There is nothing in the stipulation which indicates that the amount to be paid is dependent upon anything in a by-law. The amount is fixed, and whether it shall be paid depends only upon compliance with the by-laws and the conditions mentioned in the certificate. Giving the provision a reasonable interpretation and construing it with all of its intendments . in favor of the certificate-holder, there can be no escape from the conclusion that it was not intended by this provision to authorize the society to reduce the amount agreed to be paid, but it -was intended simply that payment of the amount agreed on was to be dependent upon compliance with the by-laws and the performance of the conditions named in the certificate.” In the discussion of the Jordan case Mr. Justice Fish quoted approvingly from Becker v. Beneficial Society, 144 Pa. St. 232 (22 Atl. 699, 27 Am. St. R. 624), the following: “This was certainly an easy mode of relieving the society from- an obligation; and if successful, will doubtless be followed by other similar associations. The difficulty in the way of this convenient mode of paying debts is that it is repudiation pure and simple. The argument that the plaintiff, being a member of the society, is bound by the by-law, does not meet the difficulty. It may be a good by-law as to future cases, but at the time it was passed the plaintiff was something more than a member. He was a creditor whose righto had previously attached, and those rights can not be swept away by such a scheme as this by-law'.” It will be seen from the above that in the Jordan case the insurance company sought to render nugatory by a by-law the original and main- contract, and this was properly designated as “repudiation pure and simple.” As is stated above, the insurance company in the instant case has done nothing to show that it did not in good faith intend to carry out the main contract made with plaintiff.

Counsel for the plaintiff in error cite also the ease of Alabama Gold Life Insurance Co. v. Garmany, 74 Ga. 51, as supporting their contention. In the Garmany case the company refused to allow the insured to pay his premiums and continue his insurance. This went to the very vitals of the main contract, and is an entirely different proposition from the one under consideration. There is absolutely nothing in the Garmany case in conflict with what is herein ruled. Indeed, our opinion in the instant case is supported by what is said in the Garmany case." Subdivisions “b” and “c” of the second headnote of the Garmany ease are as follows: “(5) If an abatement of damages was' proper on account of the intermediate benefits received by the assured, no proof of their value was introduced, (c) If the company violates the conditions and stipulations- of its contract, it is liable to return to the assured at least as much as he would lose by his voluntary failure to keep on foot' his policy by paying according tó its terms.” What would the plaintiff in the instant ease “lose by his voluntary failure to keep on foot his policy by paying according to its terms?” This is provided for in the policy itself, in the following: “If the insured makes written application within six months after default in the payment of premiums, the company will extend this policy as a term policy for its full amount; or, upon surrender of this policy, will issue a participating paid, up' policy, or will pay the 'cash' surrender value, as stated in the table on the third page hereof under the respective heads.”

Thus it will be seen that from the contract itself, from an equitable viewpoint, from the decisions, and from “the soundest reasoning, which is the soundest law,” the contention of the plaintiff in error is untenable, and that the court did not-err in sustaining the demurrer to the petition.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    9164.
    Small v. American National Bank.
    Decided July 30, 1918.
    Complaint; from city court of Macon—Judge Mathews presiding. July 13, 1917.

      W. B. McNeil, for plaintiff in error.

      Hardeman, Jones, Parle & Johnston, H. 8. Btrozier, contra..
   Bloodworth, J.

The court did not err either in refusing to grant a non-suit or in directing a verdict for the plaintiff.

Judgment affirmed.

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


text:
    9353.
    Fuller v. Georgia Railway and Power Company.
    Decided July 30, 1918.
    Action for damages; from Gordon superior court—Judge Fite.•August 30, 1917. 1

      Lang & Lang, for plaintiff. Colquitt & Conyers, for defendant.
   Bloodworth, J.

The court did not err in .granting a nonsuit in this case. Judgment affirmed.

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


author: Broyles, P. J.

text:
    9647.
    Jennings v. The State.
    Decided July 30, 1918.
   Broyles, P. J.

1. Under repeated rulings of the Supreme Court and of this court, a special ground of a motion for a new trial must be complete within itself. When, for a proper understanding of it, it is necessary to refer to another special ground of the motion, or to the record, it will not be considered. This ruling disposes of the special grounds of .the motion for a new trial.

2. The verdict was authorized by the evidence.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

Indictment for assault with intent to murder; from Fulton superior court—Judge Hill. March 2, 1918.

Tillou Von Nunes, for plaintiff in error.

John A. Boylcin, solicitor-general, B. A. Stephens, contra.


author: Broyles, 3?. J.

text:
    9659.
    Carson v. The State.
    Decided July 30, 1918.
    Indictment for larceny; from Fulton superior court—Judge Hill. March 25,■ 1918. .
   Broyles, 3?. J.

1. In an indictment for larceny the description oí the' stolen property should be simply such as, in connection with the other allegations, will affirmatively' show the accused to be guilty, will reasonably inform him of the transaction charged, and will put him in a position to make the needful preparations for his defense. 2 Bish. Cr. Proc. § 699; Sanders v. State, 86 Ga. 717 (12 S. E. 1058); Powell v. State, 88 Ga. 32 (13 S. E. 829); Walthour v. State, 114 Ga. 75 (39 S. E. 872); Bone v. State, 120 Ga. 866 (48 S. E. 356); Cannon v. State, 125 Ga. 785 (54 S. E. 692); Ayers v. State, 3 Ga. App. 305 (59 S. E. 924).

2. Under the ruling in the preceding paragraph, an indictment for the larceny of an automobile, which charges that the accused "did wrongfully, fraudulently, and privately take,' steal, and carry away, with intent to steal the same, one five-passenger Eord automobile of the value of four hundred ($400.00) dollars and the property of W. C. Jones,” is sufficiently specific in the description of the property stolen, and it is not subject on that point 'to a special demurrer.

3. No material error appears in any of the excerpts from the charge excepted to, when these excerpts are considered in the light of the charge as a whole. ■

4. The charge as to corroboration of the testimony of an accomplice was sufficient, in' the absence of a timely written request for a fuller charge upon that subject. It, is not shown that such a request waá presented to the court.

5. The admission of the testimony complained of in the 7th, 8th, 9th, and 10th special grounds of the motion for a new trial was not erroneous for any reason assigned.

6. It does not appear that the judge abused his discretion in refusing to allow the accused to go back upon the stand and make a second statement to the jury.

7. The special ground of the motion for a new trial, based upon alleged newly discovered evidence, is' fatally defective, in that it fails to set forth any of the supporting affidavits required in such a proceeding' by section 6086 of the Civil Code of 1910. •

8. The verdict was authorized by the evidence.

Judgment affirmed.

Bloodworth and Harwell, JJ.,''concur.

J. Mallory Hunt; for plaintiff in. error.

John A. Boylcin, solicitor-general, E. A. Stephens, contra.'


author: Bboyi.es, P. J.

text:
    9695.
    Reynolds et al. v. The State.
    Decided July 30, 1918.
    Indictment for burglary; from Burke superior court—Judge Hammond. March 21, 1918.
    Gus and John Reynolds were convicted of burglary, under an indictment which charged them jointly with having broken and entered the barn of „J. H. Brinson and stolen 15 bushels of corn. Brinson testified, that when 'he got to his farm about nine or'ten o’clock in the morning he was informed that an old store on the farm, in which he had stored corn and other things, and which had been nailed up, was broken into and corn taken out; and on investigation he found that two planks had been prized off the rear of the building and ten or twelve bushels of corn taken out; that he and a negro, Tom. Gray, “tracked the parties that did the stealing,” and “could see where they came out from the road to the barn in a jersey wagon and poured the corn "out in a basket;” that there was a light rain just before day, and the wagon and the mule with it were tracked to the house of Gus Reynolds, and from that house to his son John’s corn crib. Shucks and ears of corn were found at different places in the road. The tracks were lost in deep sand in front of a house on the route, where pigs and chickens had been running in the road, but it was testified that the tracks were “picked up again in about 50 yards.” A part of the road was a rural delivery route. Brinson testified: “Some one could have come along this road, but not the same jersey wagon and that same mule; , . there was no other 'jersey wagon like this negro had. I did not take the wagon out and put it in the track.” On arrival at Gus Reynolds’s house Brinson told him of the loss of the corn, and asked if he "knew, anything about it. Brinson testified, that Gus answered that, he had no corn, but he (Brinson) found where the wagon had been driven to the window of a shed-room of Gus’s house, and saw -shucks on the ground there, and found four or five bushels of corn on the floor of the house; and Gus then said that he got this corn from' Mr. Harry Barefield, and had forgotten about it; that, he (Brinson) thereupon went to Barefield’s house, and Barefield’s corn did not match this corn; that he then went back to Gus’s house to find where the wagon went, and he tracked it across a field and into the road and to the house of John Beynolds, and saw a jersey wagon, with several ears of corn in it, under the shelter of John’s barn, and found four or five bushels of corn in John’s crib; that he then went to John, who was in the field, plowing, and John at first denied that he had any corn, but, when asked about the corn in the crib, said he had got it from Mr. Harry Barefield before day that morning; the witness then went to Barefield, and Barefield said he had not let John have any corn that year. Barefield also testified that he did ndt sell John any corn. It was testified that the corn at Gus’s house and John’s house “compared with” Brinson’s corn. There was conflict as to whether the corn at Bare-field’s house looked like Brinson’s corn. The testimony of Tom Gray was substantially in accord with that of Brinson. Barefield testified that when Brinson came to his house and asked about the corn, he told Brinson that Gus Beynolds had, come to, him for corn, and he told Gus to weigh it up, and Gus took seven bushels. Gus Beynolds made a statement to the jury, in which he said that the corn found at his house by Brinson was a part of seven bushels bought by him from Barefield several days before, and that he (Gus) let his son John have four bushels of that corn on the morning on which Brinson claimed to have lost the corn.
   Bboyi.es, P. J.

In this ease the evidence relied Upon by the State to convict the defendants was wholly circumstantial,'and was not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused. The court therefore erred in overruling the motion for a new trial.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.

Brinson & Ilaicher, for plaintiff in error.

A. L. FranJclin, solicitor-general, John M. Graham, contra.


text:
    9730.
    Stewart v. Fincher.
    Decided July 30, 1918.
   Broyles, P. J.

Under the facts of the case the court didr not err in dismissing the petition for certiorari.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

Petition, for certiorari; from Butts superior court—Judge Searcy. February term, 1918.

C. L. Redman, for plaintiff in error. II. M. Fletcher, contra.


author: Per Curiam.

text:
    9426.
    Southern Flour and Grain Company v. Levy Rice Milling Company.
    Decided July 31, 1918.
    Writ of error; from Fulton superior court.

      W. I. Heyward, for plaintiff.
    Rosser,. Slaton, Phillips & Hoplcins, Charles Rosen, for defendant.
   Per Curiam.

It appearing that the judgment of the court below, sustaining the demurrer to the first count of the declaration and overruling the demurrer to the second count, did not make a final disposition of the case, but that .the case is still pending, the writ assigning error upon the action of the court in sustaining the demurrer to the first count is premature, and must be dismissed. Carhart v. Mackle, ante, 520, and cases there cited.

Writ of error dismissed.

Wade, O. J., and Jenlcins and Lulce, JJ., concur.


text:
    8977.
    CHARLESTON AND WESTERN CAROLINA RAILWAY COMPANY v. PATTON.
    The allegations of the petition clearly showing that the negligence charged against the defendant was not the main, controlling, preponderating, or proximate cause of the injury, the court erred in not sustaining the demurrer and dismissing the petition.

      (a) “A plaintiff can not recover on other acts of the defendant which, while set forth in the petition, are not therein alleged as negligence.”
    Decided July 31, 1918.
    Action for damages; from city court of Eicbmond county— Judge Black. May 16, 1917.

      W. E. Miller, for plaintiff in error. H. C. Roney, contra.
   Bloodworth, J.

Patton brought suit for damages against the Charleston & Western Carolina Eailway Company, alleging that the defendant was a common carrier engaged, in interstate commerce. The portions of the petition necessary to an understanding of the issue determined by this opinion are as follows: “7. After changing the switch on the main line, and after the train had been placed thereon, said train should have remained there until petitioner should signal the train to move forward, but with-' out signal said train started off, whereupon petitioner signalled said train to ‘slack ahead/ intending for the train 'to slow down and finally stop, so that he might get the material to.remedy the hot box. When petitioner gave said signal he had not then had opportunity to change the derailing switch on the house track, and ran to this point, taking it for granted that his signal would be obeyed; but discovering that the train was still in motion and not slacking up, he then gave a stop signal to the'engineer.- 8. Petitioner discovering that the train was not going to stop, but was going forward towards its destination, and while the said train was slowly passing him, ‘knowing his duties required him to be aboard said train, he endeavored to board the train by catching on. to a grab-iron on one of the cars, near the engine. He caught the grab-iron with his left hand, and was holding on to the same, when the cars gave a sudden and violent lurch which jerked him from the grab-iron, and threw him violently to the ground, causing the injuries hereinafter stated. [This paragraph was amended by adding at the end thereof the following: “That the violent jerk of said train was unusual and unnecessary.”] 9. That when petitioner undertook to board the train, it did not appear to him that it would.be dangerous to do so, and he could have safely boarded .the train but for the sudden jerk of the train which caused petitioner to loose his hold on the grab-iron as aforesaid. 10. That it is the custom of employees of said company to board slowly moving trains in the discharge of their duties, and that custom was known 'to and acquiesced in by said company. 11. Petitioner was not only required to switch the cars at the place aforesaid, but was directed to give signals for the movements of said train of cars, and the engineer knew that his train could not be moved except by signal given by petitioner. There was no other brakeman or flagman to perform this duty and said engineer knew this fact, and further knew that petitioner was the only person to give the signals aforesaid, as the conductor and the flagman were at the other end of the long train of -cars, in the cab. That said engineer, as well as the fireman on the engine, saw the signals given by petitioner, and knew at the time these signals were .given that petitioner was still upon the ground in the performance of his duties, and, therefore, was not aboard the train. That had said engineer obeyed the signals given by petitioner, petitioner would not have been injured,—that he would have had opportunity to have remedied the hot box, and then to have boarded the train in safety. 12. That petitioner, at the time of his injury, was in the exercise of ordinary care and diligence, and was entirely free from fault, and that his injuries were caused solely’ by the negligence of said engineer in not obeying the signals given by petitioner, as aforesaid.” Defendant filed a demurrer as follows: “1. Because no cause of action is set out in said petition. 2. Because it is apparent from the petition that no act of defendant was the proximate cause of the injury complained of.” This demurrer was overruled, exceptions pendente lite were filed, the case proceeded to trial and resulted in a verdict for plaintiff. The entire Case is before us for review.

We think the court erred in overruling the demurrer to the petition. It is well settled, under repeated rulings of the Supreme Court of our State and of this court, that where a suit for personal injuries is based upon negligence of the defendant, the plaintiff, before he is entitled to recover, must show in his petition that the specific acts of negligence alleged therein were the proximate cause of his injuries. He can not recover on other acts of the defendant which, while set forth in the petition, are not therein alleged as negligence, Some of the decisions which settle this proposition are the following: “The petition did not state a cause of action. The alleged negligence of thé defendant was not the proximate cause of the plaintiff’s injury.” Hester v. Savannah Electric Co., 130 Ga. 454 (60 S. E. 1045). “The petition, failing to set out any specific, acts of negligence which would authorize a recovery, should,- on proper timely demurrer, have been dismissed.” Georgia R. & Banking Co. v. Williams, 3 Ga. App. 272 (2) (59 S. E. 846). “A plaintiff must allege sufficient specific acts, of negligence, as to the injured party, to withstand demurrer, and can recover only on the specific-acts alleged.” Harden v. Georgia Railroad Co., 3 Ga. App. 344 (59 S. E. 1122). “The allegations of the petition clearly showing that the negligence charged against the defendant was not the main, controlling, preponderating, or proximate cause of his injury, the court did right in sustaining a demurrer and dismissing the petition.” Shaw v. Macon, 6 Ga. App. 306 (64 S. E. 1102). “It appearing, from the allegations of the petition, that the acts of negligence charged against the defendant were not the proximate and effective cause of the injury complained of, the demurrer thereto should have been sustained.” Southern Railway Co. v. Barber, 12 Ga. App. 286 (77 S. E. 172). “This court has .repeatedly ruled that a plaintiff can not recover for acts of negligence proved against the defendant, other than those alleged in .his petition.” Central Railway Co. v. Weathers, 120 Ga. 475, 479 (47 S. E. 956). “That the plaintiff can not recover upon any act of negligence other than those set out in the declaration is so well settled that it is unnecessary to 'cite authorities.” Georgia Brewing Asso. v. Henderson, 117 Ga. 480 (43 S. E. 698). See also Georgia R. & B. Co. v. Oaks, 52 Ga. 410 (5); Central Railroad & Banking Co. v. Nash, 81 Ga. 580 (2), 585 (7 S. E. 808); Mayor &c. of Macon v. Dykes, 103 Ga. 847 (31 S. E. 443); Palmer Brick Co. v. Chenall, 119 Ga. 837 (5-7), 845 (47 S. E. 329). In the instant case the only act of any of the defendant’s employees which the petition specifically alleges as negligence was the failure of the engineer to obey the plaintiff’s signals to slow down and to stop the train. - The - petition further shows that after this negligence had become operative and was known to the plaintiff, the plaintiff was standing upon the ground in a perfectly safe place, and that he then, voluntarily attempted to board the, moving train “as it passed him, and that he caught with one hand a “grab-iron” on the side of one of the cars, and would have succeeded in safely boarding the train had it not been for a sudden, violent, unusual and unnecessary jerk, which broke his hold, threw him from the train and injured 'him. The petition, construed as a whole, clearly shows that the specific act of negligence alleged therein, to wit, the failure of the engineer to obey the plaintiff’s signals, was -not the main, controlling, prepohderating, or proximate cause of his injuries, but that the proximate cause was the sudden jerk of the train—which nowhere in either the original or the amended petition is alleged as negligence. The petition therefore failed to set forth a cause of action, and the court erred in overruling the general demurrer interposed. The error in the judgment upon the demurrer rendered the further proceedings in the case nugatory.

Judgment reversed.

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


text:
    9300.
    JONES et al. v. OWENS, executrix.
    1. If it was error for the court, at a term subsequent to that at which was rendered the judgment striking the answers of the defendants, to modify that judgment by declaring that it should not be enforced in . so far as it struck the denial of service of notice of claim for attorney’s fees, yet, as the order of modification was not objected to by the plaintiff, and as it was for the benefit of the defendants and restored to them all the rights they had before the original judgment was rendered, and as the plaintiff thereafter submitted proof of service of notice of the claim for attorney’s fees, it does not appear that the defendants were injured thereby; and no reversal is demanded on this account.
    2. There was no error in the other rulings of the court, in so far as they related to the pleadings of the makers of the note sued on.
    3. It was error to strike the plea of the indorser of the note, that, without his knowledge or consent, the payee (whose executrix was suing on the note) extended the.time of its maturity from July 12, 1913, to March 10, 1914, for a valuable consideration consisting of the payment in full of interest to the date last stated.
    4. Costs are assessed, one half against the makers of the note, and one ■ half against the plaintiff (defendant in error).
    Decided July 31, 1918.
    Complaint; from city court of Atlanta—Judge Eeid. October 4, 1917. (Certiorari to review this decision was granted by the Supreme Court.)
    Upon a promissory note of Charles. C. Jones and Mrs. Ola E. Jones to Claude E. Buchanan, indorsed by the payee, suit against the makers and the indorser was brought by Mrs. Theo. C. Owens, as executrix of Frank 0. Owens and individually. The note (as appeared from a recital therein), was given for a part of the purchase-price of a house and lot known as No. 14 Mechanic street, in the city of Atlanta. The case came to the Court of Appeals on exceptions of the defendants to the. striking of their pleas and the direction of a verdict against them.
    In the pleadings referred to in division 2 of the decision, the makers of the note set up different defenses. One of these (which will be more fully set out) is that the consideration of the note was immoral and illegal. .Others were as followsOn October 21, 1913„ these defendants transferred to Archibald Smith the bond for title by which Buchanan undertook to convey to them, on payment of the purchase-money, the property for which the note was given, Smith assuming payment of the note, and the time of payment having been extended from maturity (July 12, 1913) to March 10, 1914, by the payment of interest, to the latter date. Subsequently (June 10, 1914) Smith executed and delivered to the plaintiff a deed to certain other land to secure the payment of the note sued on, in 'which deed it was recited that payment of the note was assumed by Smith, “upon divers considerations him thereunto moving;” and by the terms of the deed the time of payment was extended and the note made to stand for payment in-installments, with interest at the rate of 8 per cent., instead of 6 per. cent, as provided in the note. Smith failed to pay as agreed, and the plaintiff brought suit against him and obtained judgment for the amount of the note with interest, and the property described in the security deed was levied on and sold to the plaintiff for $1,000, which was applied on the fi. fa. It is'alleged, that the execution of the security deed, the extension of the time of payment, and the increase in the rate of interest were without the consent of the defendants, and constituted a novation, so as to change the person to "whom the note was due, and the defendants were thereby discharged from liability on the note. It is further alleged, that at the time of this extension the market value of the property for which the note was given was $5,000, but at the time of the bringing of this suit the market value had decreased to about $2,000; and the act of the plaintiff in accepting the security deed and extending the time of payment increased the risk of the defendants, and they were thereby discharged from liability. It is alleged that the plaintiff, in the manner hereinbefore set forth and for a consideration, was guilty of negligence in the prosecution 'of her legal remedies against these defendants, and they .were thereby discharged from liability.
    As to illegality of consideration it is alleged: The note sued on is illegal and void, for its consideration was immoral, in that it was. given to said» Buchanan for the purchase-money of a house built, leased, and rented by him as a house of prostitution, and purchased' by these defendants for the purpose of conducting therein a house of prostitution, and these defendants did thereafter conduct therein a house of prostitution. These defendants informed said Buchanan of the purpose of their purchasing said house,—to carry on therein acts of prostitution,—and he had full knowledge thereof when said note was executed, and acquiesced and agreed thereto; and Frank C. Owens purchased the note from Buchanan with knowledge of .these facts; he knew that the house was in a restricted district of the city, in which only houses of prostitution were conducted, and that it was capable of no other use, and that the said Charles C. Jones and Mrs. Ola E. Jones intended at the,time of purchasing it that it was to be used for no other purpose. The price they were to pay for the property, to wit, $19,000, was greatly in excess of its real value for any lawful purpose. At the time of the delivery of the note the said Frank C. Owens became invested with title to the property in question by warranty deed from said Buchanan to him, and the legal title to it has been at all times in said Owens.
    Buchanan filed pleas similar to those of the other defendants, besides the defense referred, to in division 3 of the decision.

      .Hewlett & Dennis cited, as to illegality of consideration:

      Howell v. Fountain, 3 Ga. 176, 182; Ralston v. Boady, 20 Ga. 450-1 (1); Harris v. Barfield Music House, 18 Ga. App. 444; Abbott Furniture Co. v. Mobley, 141 Ga. 456; Kessler v. State, 119 Ga. 303; 2 Elliott, Con. 90, § 739; Clark v. Hagar, 22 Canada (Supreme Court), 510; Civil Code (1910), § 4286, As to discharge by novation, extension of time, etc.: Park’s Ann. Code, § 3543; Curan v. Colbert, 3 Ga. 248-9; Matthews v. Richards, 13 Ga. App. 414; Smith v. First Nat. Bank of Fitzgerald, 5 Ga. App. 139; Kalmon v. Scarboro, 11 Ga. App. 547; Hill v. O’Neill, 101 Ga. 831; Haigler v. Adams, 5 Ga. App. 637; Oakeley v. Pasheller, 4 Clark & Finnelly, 207; White v. Ault, 19 Ga. 553; Civil Code, § 3544; Randolph v. Fleming, 59 Ga. 778; Knight v. Hawkins, 93 Ga. 709; Bethune v. Dozier, 10 Ga. 235, 239; Worthan v. Brewster, 30 Ga. 114; Parmelee v. Williams, 72 Ga. 43; Owens v. Palmour, 99 Ga. 92; Clark v. Bryce, 64 Ga. 486; Hall v. Bank of Macon, 71 Ga. 715; 7 Cyc. 883-4, and cases cited in the decision in this case.

      Mayson & Johnson, contra, cited, as to illegality of consideration :
    Park’s Ann. Code, § 4251; Mechanics Realty & Improvement Co. v. Leva, 16 Ga. App. 7; Singleton v. Bank of Monticello, 113 Ga. 527; Hines v. Union Savings Bank, 120 Ga. 711; Phenix Ins. Co. v. Clay, 101 Ga. 331 (65 Am. St. R. 307); Baker v. Magrath, 106 Ga. 421 (2); Columbia Bridge Co. v. Kline, Brightly (Pa.), 320; Wright v. Hughes, 119 Ind. 324 (12 Am. St. R. 413); Anheuser-Busch Brewing Asso. v. Mason, 44 Minn. 318 (20 Am. St. R. 580); Rose v. Mitchell, 6 Colo. 102 (45 Am. R. 522), and cit.; Gaylord v. Soragen, 32 Vt. 110 (76 A. D. 154); Brunswick v. Valleau, 50 Iowa, 120 (32 Am. R. 119); Hedges v. Wallace, 2 Bush, 442 (92 Am. D. 497); Armfield v. Tate, 1 Ired. 259; Hodgson v. Temple, 5 Taunt. 181; Dater v. Earl, 3 Gray, 482; Gambs v. Sutherland, 59 N W. 652; Bryson v. Haley, 38 Atl. 1006; Delavina v. Hill, 19 Atl. 1000; Goodall v. Gerke Brewing Co., 46 N. E. 983; Sprague v. Rooney, 82 Mo. 493 (52 Am. St. R. 383); Michael v. Bacon, 49 Mo. 414 (8 Am. R. 138); Tracy v. Talmage, 14 N. Y. 162 (61 Am. D. 132); Waugh v. Beck, 114 Penn. 422 (60 Am. R. 354); Wallace v. Lark, 12 S. C. 576 (32 Am. R. 516); Henderson v. Waggoner, 2 Lea, 133 (31 Am. R. 591); Tedder v. Odom, 2 Heisk. 68 (5 Am. R. 27); Nat. Distilling Co. v. Cream City Importing Co., 86 Wis. 352 (56 N. W. 864); Dennehy v. McNulta, 86 Fed. 825; Pittsburgh Carbon Co. v. McMillin, 7 L. R. A. 46; Abbott Furniture Co. v. Mobley, 141 Ga. 456; Harris v. Barfield Music House, 18 Ga. App. 444; Standard Furniture Co. v. Van Alstine, 22 Wash. 670 (62 Pac. 175, 79 Am. St. R. 960); Kessler v. Pearson, 126 Ga. 725; McAndrew v. Taylor, 15 Ga. App. 555; Hunt v. Turner, 9 Tex. 385 (60 Am. D. 167); Ingram v. Mitchell, 30 Ga. 551; Virginia Bridge &c. Co. v. Crafts, 2 Ga. App. 126; Potts v. Riddle, 5 Ga. App. 382; Rowland v. Devon Mfg. Co., 19 Ga. App. 481.
    See Bennett v. State, 20 Ga. App. 110.
   Bloodworth, J.

The court, through inadvertence, struck that portion of the defendants’ answers in which service of notice of claim for attorney’s fees was denied. Hpon the trial of the case the court, realizing its error, passed an order declaring that the order to strike the answers "will not be enforced so far as the same strikes the answers of the defendants denying paragraph 1 of the plaintiff’s petition; and the court now offers to the defendant full opportunity to be heard on the issue made by the allegations of the plaintiff in paragraph 1, and the answers of the defendants denying the same; and if it be necessary in the opinion of counsel for the defendants, time will be given for the summoning of witnesses, or procuring testimony to be introduced on that issue, the court declaring and notifying counsel for the defendants that they are not concluded as to that issue, and may now be fully heard just as if no judgment had ever been rendered striking that part of the answers of the defendants which denies paragraph 7 of the plaintiff’s petition; and;, in so far as the court may have authority, the court- modifies his judgment rendered on the said motions to strike on March 5, 1917, by declaring and holding that the answers of the defendants, in so far as they deny paragraph 7 of the plaintiff’s petition, are not stricken, and that the motions to strike the same are overruled.” While perhaps the court could not, at a subsequent term to the one at which it was rendered, modify its judgment, yet, as the order modifying the judgment was not objected to by the plaintiff, and as it was for the benefit of the defendants and restored to them all the rights they had prior to the striking of the paragraph of the answer 'in reference to attorney’s fees, and as the plaintiff submitted proof of the service of the, notice as to attorney’s fees, it does not appear that the defendants were in any way injured. This error (if error) of the court was not such as to demand a reversal of the judgment. 1

The court committed no error in its other rulings in so far as they related to the pleadings of Charles C. Jones and Mrs. Ola E. Jones.

The indorser of the note, Claude E. Buchanan, filed a plea in which he alleged that, without his knowledge or consent, Frank C. Owens, the original payee of the note sued'on and whose executrix is plaintiff in this case, extended the time of- maturity of the note sued on from July 12, 1913, to March 10, 1914, for a valuable consideration, the same being the interest paid in full to the date to which the note had been extended. Under the repeated rulings of this court and the Supreme Court this plea was good and should not have been stricken. In Tanner v. Gude, 100 Ga. 157 (27 S. E. 938), the headnote is as follows: “A contract of suretyship being necessarily included in every unqualified indorsement of a negotiable instrument, an agreement by the holder of a promissory note, éntered into with the maker, whereby for value the latter extends the time of payment for a definite period beyond the date of ¿maturity, if made without the consent of the indorser, discharges him, whether he be such for value or not.” In the case of Randolph v. Fleming, 59 Ga. 776, the 2d headnote is as follows: “Prepayment and acceptance of interest to a given time, on a note past due, is evidence of a contract of indulgence until the time has expired; and if no stipulation to the contrary appears, an unconditional contraqt will arise by implication.” In Bethune v. Dozier, 10 Ga. 235, Judge Lumpkin said: “No principle of law is better settled at this day than that, the undertaking of the surety being one stricti juris, -he can not, either .at law or in equity, be bound farther or otherwise than he is by the very terms of his contract; and that if the parties to the original contract think proper to change the terms of it without the consent of the surety (which it is not disputed they have a right to do), the surety is discharged. He is not bound by the old contract; for that has been abrogated by the new; neither is he bound by.the new contract, because he is no party to it; neither can it be split into parts, so as to be his contrstct to a certain extent and not for the residue; he is either bound in toto or not at all. Neither is it of any consequence that the alteration in the contract is trivial, nor even that it is for the advantage of the surety.” Stallings v. Johnson, 27 Ga. 564; Scott v. Saffold, 37 Ga. 384 (2); Bunn v. Commercial Bank, 98 Ga. 647, 651 (26 S. E. 63); Park v. Cordray, 20 Ga. App. 35 (2), 36 (92 S. E. 394); MacIntyre v. Massey, 11 Ga. App. 458 (2) (75 S. E. 814).

Hnder the above rulings, the judgment of the court below as to Charles C. and Mrs. Ola E. Jones is affirmed; and as to Claude E. Buchanan it is reversed. This court assesses one half of the costs against defendant in error, and one half against plaintiffs in error, Charles C. and Mrs. Ola E. Jones.

Judgment affirmed in part and reversed in part.

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


author: Bloodwoeth, J. Bboyles, P. J.,

text:
    9335.
    Western & Atlantic Railroad Company v. Thomasson.
   Bloodwoeth, J.

There is some evidence to support the verdict in this case; it is approved by the trial judge; and while there are inaccuracies in some of the excerpts from the charge, of which complaint is made, these errors are not so material, when considered in connection with the entire charge and in the light of the evidence, as to justify this court in holding that the judge erred in refusing a new trial.

Judgment affirmed.

Harwell, J., concurs.

Bboyles, P. J.,

.dissenting. The verdict was in favor of the plaintiff. The evidence which authorized a recovery for the plaintiff was very weak, the great weight of the evidence being in favor of the defendant. Under these circumstances I think that the errors in the charge of the court, which in the opinion of the majority of this court ,are denominated “inaccuracies^” were sufficiently prejudicial to the defendant’s cause to require a new trial.

Decided July 31, 1918.

Action for damages; from Bartow superior court—Judge Tarver. September 8, 1917.

Tye, Peeples & Tye, Neel & Neel, for plaintiff in error. ■

Buford Boykin, Sidney Holderness, Finley & Henson, contra.