author: Jenkins, J.

text:
    8238.
    LANKFORD v. PETERSON, executrix.
    1. Where an obligation palpably infected with usury contains a mortgage to secure its payment, and also contains an agreement that the debtor shall procure a loan from a third person on the same property, to be secured by a deed which is to be superior to the mortgage, and shall then assign to the mortgagee, as additional security, the bond to re-convey, received by the debtor from his grantee under the-security deed, neither the obligation to make such assignment, nor its subsequent consummation, will operate to merge or otherwise render invalid the mortgage lien.
    2. Where the consideration of an obligation is not definitely ascertained at the time of its execution, or consists of contingent liabilities or advances to be thereafter made, it is incumbent upon the holder thereof to show the amount thus actually advanced. This burden was met in the present case. There being no conflict in the evidence, the proof submitted demanded the verdict directed by the court.
    3. The statute of limitations relating to the forfeiture of usurious interest has reference to a set-off claiming such forfeiture,' and to suits to recover usury which has been paid. Thus, where usurious interest has been paid and applied as such, the statute is applicable in a suit brought on the obligation. But when not otherwise directed by the debtor, payments made on a debt infected with usury will be applied first to the payment of the legal interest due at the date of the payment; and any balance remaining after such interest is discharged will go in reduction of the principal. A plea alleging such payment may be properly- filed although more than twelve months have elapsed since the payment.
    Decided September 18, 1917.
    Foreclosure of mortgage; from Coffee superior court — Judge Summerall. February 9, 1916.
    W. ■ C. Lankford and B. Petersbn entered into the following agreement:

      “Georgia, Coffee County.
    “This agreement or contract, made and entered into this 4th day of May, 1912, hy and between B. Peterson, as party of the first part, and W. C. Lankford, as party of the second part, witnesseth:
    . “That whereas W. C. Lankford is the owner of all that tract of land in the city of Douglas, being seventy-three feet, more or less, east and west, by two hundred ten feet north and south, in the form of a parallelogram, and bounded on the north by Ward street, and east by Tanner street, south hy Sycamore street, and west by a straight line beginning ten feet east of Douglas Surgical Institute and Infirmary on Ward street, and running due south: Whereas said W. C. Lankford has heretofore made a contract with the Empire Construction Company to erect on the- northern one third of said tract of land, a building (fireproof) of re-enforced concrete construction, three stories in height, at a cost of twenty-five thousand dollars ($25,000.00), which is to be completed within six months from this date; - . '
    “And whereas W. C. Lankford has negotiated and obtained a loan of $12,000.00 from the Security Life and Annuity Company of Greensborough, N. C., which said loan has not yet been funded, and security deed therefor not yet having been made, which money is to be used in the construction of said building;
    “Whereas B. Peterson, party of the first part, is willing to furnish ten thousand dollars ($10,000.00) to be used in the construction of said building, and W. C. Lankford is desirous of obtaining said money to be so used;
    “Therefore, be it agreed as follows:
    “First. That said B. Peterson is to furnish the sum of $10,-000.00 to said W. C. Lankford to he used by him in the construction of said building; said money to be furnished from time to time as needed by said W. C. Lankford during the period of time necessary for the construction of said building, in amounts not to exceed $2,500.00 during the month of May, $2,500.00 during the month of June, $2,500.00 during the month of July, and $2,-500.00 during the month of August; no money to be advanced by the said B. Peterson until the said W. C. Lankford has finally closed the matter of securing a loan of $12,000.00 from said life insurance company, and until said life insurance company has paid at least $3,000.00 of said loan to W. C. Lankford to go in said building. Then and in no event is the said B. Peterson to furnish more money to be used in the construction of said building than is furnished by the said life insurance company, and used in said building.
    “Second. It is furthermore agreed that the loan deed, or mortgage, executed by the said Lankford to the said life-insurance company shall be a first lien upon the said property, and that this contract and agreement shall be second to said loan deed to the said insurance company.
    “Third. It is further agreed that said B. Peterson shall have a lien on the said building and upon said entire tract of land to secure the payment to him of the said money so advanced, and of all rents due him in accordance with this contract, and due him in any way, or for any purpose under this contract. And the said W. C. Lankford does hereby convey, sell, and mortgage to said B. Peterson said tract of land and all buildings placed thereon, and does hereby create a lien on said property to the said B. Peterson for said purpose.
    “Fourth. It being further agreed that said B. Peterson shall receive for,the use of said money two fifths of the rents received from said building by said W. ,C. Lankford for his two-fifths interest in said building; it being agreed that, inasmuch as he furnishes two fifths of the money that is to. go into said building, he is to own two-fifths interest in said building, subject to be divested as is hereinafter set out, and withva lien on the entire property as heretofore set out, and subject to be divested as hereinafter detailed; it being furthermore agreed that said W. C. Lankford is to guarantee the rental value of said building to be $300.00 per month, that is to say, that the said W. C. Lankford is to pay to the said B. Peterson the sum of $120.00 per month as his part of the rents from said building, be the amounts so received more than $180.00 per month or less.
    “Fifth. It is agreed that during the construction of said building that W. C. Lankford is to pay $30.00 per month for the first month said building is under course of construction, $60.00 for the second month, $90.00 for the third month, and $120.00 for the fourth month, and each month thereafter; said amount to be paid to the said B. Peterson as his part of the rents of said building, or part of building during said time.

      “Sixth. It is furthermore agreed that after twelve months from the date hereof the said W. C. Lankford shall be permitted to pay B. Peterson the $10,000.00 either in whole or in sums of $2,500.00; a proportionate part of the rent herein contracted to be paid by the said W. C. Lankford to the said B. Peterson to cease upon the payment of such amount, or amounts, that is to say, for each $2,500.00 so paid, one fourth of said amount of rent to be no longer due to said B. Peterson each month and collectible by him.
    “Seventh. It being furthermore agreed that the said W. C. Lankford is to pay back to B. Peterson all of said amounts and including any other advances' or payments made by said Peterson on or before two years from the date hereof.
    “Eighth. It being furthermore agreed that should any of said amounts of rent or other charges hereinafter fall due from said W. C. Lankford to B. Peterson and be not paid for as much as 30 days, then the said B. Peterson shall be permitted to require the said W. C. Lankford to purchase from him his interest in said building and to pay the sum of $10,000.00, all accrued rents or other -charges hereunder to date of foreclosure and sale, and 10 per cent, of said amounts as attorney’s fees for collecting by law or foreclosure of power of sale, or in default thereof said property may be sold as hereinafter provided.
    “Ninth. It being furthermore agreed that, if at any time the said B. Peterson shall be authorized to demand the payment of said $10,000.00 and the rents or other charges hereunder so due of the said W. C. Lankford unless the said W. C. Lankford then .and there promptly pays the same, the said B. Peterson is authorized and empowered to advertise for sale the said tract of land and all buildings thereon by inserting a notice of said sale in the Douglas Enterprise, or some other newspaper published weekly in Coffee county, Ga., once a week for four weeks, and sell said property before the court-house door in Douglas, Ga., and make and execute a good deed to said property and all buildings located thereon subject to the said loan deed hereinabove mentioned and referred to.
    “Tenth. Be it further agreed that the said B. Peterson, his executors, administrators, or assigns, shall be authorized, and they are hereby granted power of attorney to make deed at such sale as fully and completely as W. C. Lankford could do if acting in person.
    “Eleventh. It being further agreed that the said B. Peterson, his executors, administrators, or assigns, shall be authorized to bid at said sale and to purchase said property, provided they -see fit and proper to do so.
    “Twelfth. It being agreed that should said property be so sold, and should be enough more than to pay the said B. Peterson the sum of $10,000.00 for his interest in said property and all rents and other charges due him hereunder, due him on said date, then and in that event such balance should be paid to said W. C. Lank-ford, his executors or administrators. .
    “W. C. Lankford does hereby agree and contract to buy back from the said B. Peterson at the end of two years the two-fifths interest of said B. Peterson in and to the said property for the sum of $10,000.00 plus amount of any other advances made by .said B. Peterson. Said B. Peterson agrees to sell the two-fifths interest for said amounts; it being agreed that should W. C. Lank-ford fail to make said purchase, that then and in that .event the said B. Peterson, his administrators or assigns, shall be authorized to exercise the power of attorney and sale hereinbefore granted.
    ■“Thirteenth. It is hereby covenanted and agreed that said Lankford shall proceed promptly and in good faith to erect and complete said three-story re-enforced concrete fireproof building substantially in accordance with the plans and specifications therefor already drawn for and accepted by the said Lankford, and that he shall use in the construction and completion of said building the said sums of $12,000.00 obtained from said life-insurance company and the $10,000.00 so obtained under and by virtue of this contract from said B. Peterson, to which he shall add and use in the construction of said building an additional sum of $3,000.00 to be put in and contributed by himself, the said Lankford, in addition to which the land described is to be added.
    “Fourteenth. It is further covenanted and agreed that only the mortgage or deed to secure debt from said Lankford to said life-insurance company for the said sum of $12,000.00 shall take priority over the interest and lien of the said Peterson in and over said property as set out and referred to in this'instrument, and subject only to the provisions of this contract. It being especially ■understood and agreed in this connection that all claims or liens for material and labor contracted for in connection with the construction of said building shall be paid promptly by the said Lank-ford, and certificates or other proof satisfactory to said Peterson shall- be furnished regularly from time to time by the said Lank-ford and the superintendent or contractor of said building when said sums of money hereinbefore referred to are paid over by said Peterson, showing that all such claims for labor, material, or other costs of construction of said building have been paid to such date and that the money advanced has been used in said building. In the event that there should be a failure or refusal upon the part of the said Lankford to pay off and satisfy any such claims, then the said Peterson may, at his option, pay off - any such and have said building completed, and for any sums thus advanced •he shall have the same interest in the lien upon said lands and building as is elsewhere provided herein in his behalf for his protection as to the advance of the said $10,000.00, or as to the rents due him. Said Lankford shall likewise be bound and required to keep said building properly insured, both before and after it is completed, said Peterson to have protection and benefit of said ' insurance, second only to said insurance company, and shall pay all premiums therefor, and also all taxes or other charges thereon, but should he fail or refuse to do this, then the said Peterson shall, at his option, pay off and keep up such insurance or taxes, and shall have the same lien and the same remedy for collection as is elsewhere provided in this paragraph for the other charges herein provided for, and for the better securing said Peterson in the collection of either or any of the items herein mentioned, which he may assume or pay off, it is understood that the power of sale hereinbefore provided for in behalf of the said Peterson shall cover and embrace any sums thus paid, and may be invoked in the collection thereof to the same extent as it may be used or invoked in the collection of the other advances made under this contract.
    '“Fifteenth. As a part of the same consideration of this contract it is further agreed and provided that any bond for title or contract to reconvey upon the part of the said life insurance company which may be excepted and delivered to the said Lankford shall be transferred and assigned by the said Lankford to the said Peterson for the purpose of affording additional .security for the said advances made by the said Peterson as contemplated and covered by this contract; which bond for title or other contract to reconvey shall be reassigned and transferred back to said Lank-ford by said Peterson upon the payment to said Peterson of each and all of 'the sums and charges due under and by virtue of this contract, but to remain in full force and effect for the said Peterson in the meantime, during which time said Peterson shall be subrogated to all of the rights of the said Lankford therein and thereto.
    “Signed, sealed, and delivered in duplicate this the day and year first above written.
    “C. E. Tidwell, “B. Peterson,
    “J. T. Eelihan, “Party of the first part. '
    “Not. Pub. Coffee Co., Ga. “W. C. Lankford,
    “Party of the second part.”
    This instrument was duly recorded in clerk’s office of Coffee county, on June 6, 1912. Peterson, treating the contract or agreement as a mortgage, proceeded to foreclose it as such in the superior court of Coffee county. Subsequently to the issuance of the rule nisi, the petitioner having died, his executrix, Mrs. Yicey Peterson, was at the next term made plaintiff in the proceeding. The defendant filed a demurrer and an answer. The grounds of the demurrer were that the contract was a deed, and not a mortgage, and could not be foreclosed as a mortgage; and that the instrument was void and of no effect as a security deed, in that it sought to secure the payment of money advanced at a usurious rate of interest. This demurrer was overruled. The plea denied the indebtedness in general terms and made the same contention' as to usury as has been already indicated, and set up that the instrument was but an agreement to transfer title as security for a usurious transaction. The plaintiff demurred to the answer, on the ground that a recovery of the usurious payments of interest, was barred by the statute of limitations governing such payments; and demurred to the conclusion of the pleader that the instrument was a deed. The court sustained the . demurrer -to the plea relating to the usurious payments of interest, “in' so far as all alleged payments by the defendant [are] concerned which are alleged to have been made prior to September 6, 1914; that is to say, such payments alleged to have been made more than twelve months before the filing of said plea,” and also sustained the demurrer to the plea setting up the defense that the instrument in question was not a mortgage, but a deed.
    On the trial the plaintiff introduced in evidence a supplemental contract or entry made on the instrument which it was sought to foreclose, as follows: “The interest due on the within and foregoing mortgage has been satisfactorily arranged and paid to November 1, 1914, and it is hereby agreed that said mortgage and the indebtedness secured thereby shall, from and after said November 1, 1914,'bear interest at the rate of 8% per annum, thus superseding the original plan in said mortgage as to payment of said interest by rents collected. In testimony whereof we have hereunto set our hands and seals, this February 1, 1915.
    “B. Peterson (L. S.).
    ' “W. C. Lankford (L. S.).
    “ Signed, sealed, and delivered in presence .of:
    “F. W. Dart.
    “J. T. Eelihan, Not. Pub. Coffee Co., Ga.”
    The defendant sought to amend his answer by setting out that the contemplated loan to Lankford by the Security Life and Annuity Company, mentioned in the agreement, had been in fact subsequently consummated, that a bond for title was made by that company to Lankford, conditioned to reconvey the said property on the payment of its. debt, and that on this bond the following assignment was executed:
    “Georgia, Coffee County.
    “The within and foregoing bond for title is hereby transferred to B. Peterson and the interest in the land herein described is transferred to said B. Peterson to guarantee the performance of the attached contract by W. C. Lankford; the land described within to be conveyed to W. C. Lankford by B. Peterson upon performance by W. C. Lankford of said contract; and it is agreed that this bond shall be attached to said contract and become part thereof. The consideration of this contract and transfer is the same consideration as that mentioned in said contract.
    ■ “In witness whereof I have set my hand and seal this Oct. 1, 1912.
    “W. 0: Lankford (L.S.).
    “Witnessed by:
    “J. T. Eelihan, Not. Pub.. Coffee Co., Ga.”

      On objection of the plaintiff this amendment was disallowed. When the loan deed and the "bond, with the assignment thereon, were offered in evidence they were excluded by the court. “It was admitted by plaintiff and the defendant and their attorneys that W. C. Lankford paid to B. Peterson the following amounts on the following dates: $30 on June 1st, 1912; $60 on July 1st, 1912; $90 on August 1st, 1912; $120 on September 1st, 1912; and also $120 on the first of each month thereafter up to and including November 1st, 1914. It was admitted by attorneys for the plaintiff that of the payments made by W. C. Lankford within twelve months prior to the filing of his plea in said case, only 8% should be applied as interest, and that the sum of $160.66 was therefore written off of the'payments for September and October, 1914, and allowed as a credit on the interest accruing thereafter, leaving a balance of interest of $910 to date of trial.” The court directed a verdict against the defendant for the principal sum of $10,000,-and for $910 as-interest to date of judgment, and also in favor of the foreclosure of the said paper as a mortgage, and that the equity of redemption be forever barred, and a rule absolute granted. Judgment was entered accordingly. The defendant assigns error as follows: “ (a) That the court committed error in holding that the contract and agreement sought to be foreclosed is a mortgage and can be foreclosed as such, (b) That the court committed error in holding that said paper is anything more than a mere contract between the parties thereto providing for the doing of certain things by said parties and conveying title to certain premises to the party of the first part mentioned therein -by the party of the second part to secure certain advances of money to be made by the party of the first part at an usurious rate of interest, (c) That the court committed error in directing a verdict in favor of the plaintiff for any amount; the plaintiff having introduced only an executory contract or promise on the part of- the party of the first part therein to advance certain moneys to the party of the second part provided the party of‘the second part did certain' things as therein mentioned, and there being no evidence whatever that the party of the second part ever did the things therein mentioned to be done, and there being absolutely no evidence that the party of the first part advanced or furnished any money whatever under said contract to the party of the second part, and there being no evidence that the plaintiff or her testator furnished any amount of money whatever at any time to the defendant. (d) That the court committed error in holding that of the payments made by the defendant all should be applied as rent or interest, and none applied as a payment against the principal, except such of said amounts as were in excess of eight per cent, and as were paid within twelve months prior to the filing of the plea of the defendant, and committed error in holding that the plaintiff would he entitled to eight per cent, in the future on the sum of $10,000, or on any amount.” Exception is also taken to the action of the court in overruling the defendant’s demurrer, in sustaining the plaintiff’s demurrer to the defendant’s plea as indicated, in refusing to allow the defendant’s proffered amendment to the plea, and in excluding from evidence the security deed from Lankford to the Security Life and Annuity Company, and its bond to re-convey, with the assignment to Peterson thereon.

      Lankford & Moore, Little, Powell, Smith & Goldstein, for plaintiff in error.

      Dickerson, Kelly & -Roberts, F. Willis Dart, contra.
   Jenkins, J.

(After stating the foregoing facts.) 1. If the instrument sought to be foreclosed was a mortgage, the fact that the obligation on which it was based was infected with usury would not render it void. Dwelle v. Blackwood, 106 Ga. 486 (32 S. E. 593); Moseley v. Rambo, 106 Ga. 597 (32 S. E. 698). Under the law then of force, a security deed so infected was absolutely void. By the terms of the supplemental agreement entered into between Lankford and Peterson, as set out above, as well as by the terms of another agreement signed by each of the parties, which was set forth in the amended pleadings, the instrument sought to be enforced was specifically and repeatedly referred to as a mortgage. We think, however, that if by the terms of the original instrument it were apparent that the intent was then to execute a deed and not a mortgage,.such a mere subsequent designation would-not operate to change the nature of the original instrument, in the absence of such a new valid contract as could be taken to supersede the old agreement and substitute a new and different one. . 27 Cyc. 969, 970. It is now the settled policy of the law that an instrument can not seek to retain title to property for the purpose of securing the purchase price thereof and at the same time create a mortgage on the same property. Bacon v. Hanesley, 19 Ga. App. 19 (90 S. E. 1033). In that case it was held that such an instrument operated only as a reservation of title. It is true that in the case of Smith v. DeVaughn, 82 Ga. 574 (9 S. E. 425), cited in the Bacon case, certain earlier cases are distinguished on the ground that in those cases the title to the property sought to be conveyed was in the defendant; but. in Wynn v. Tyner, 139 Ga. 765 (78 S. E. 185), Justice Lumpkin, speaking for the court, said: “Just how the same instrument can convey title and not convey title at the same time, or retain title and not retain title but be a mere lien, as to the same property and the same debt, is not plain. It would seem to be an effort to reconcile the irreconcilable.” We are therefore of the opinion that if, by the terms of the instrument we are seeking to construe, it was sought to give concurrently a mortgage and a valid security deed, both could not be treated as valid, but the latter would prevail. By the third paragraph of the instrument it clearly appears that the intent of the parties was to create, a mortgage lien upon the entire property. Under the terms of the fourth paragraph, Peterson is to “own a two-fifths interest in the building” proposed to be constructed; and at the same time was to have a lien on the entire property. It is apparent, and it is not denied by either of the parties, that this provision of the contract was merely a scheme to cover up the payment of usury under the name of rent. The defendant attacks the instrument as a conveyance, on this ground, and the plaintiff claims no benefit thereunder. Would the abortive and palpably illegal attempt to thus pass title in this portion of the improvements operate to annul, either in whole or in part, the valid lien by mortgage clearly created, where it is plain from the instrument that the intention was not so to do ? We do not think so. In Coleman & Burden Co. v. Rice, 115 Ga. 510 (42 S. E. 5), where an assignment or transfer by an insolvent debtor to a named trustee, with power of sale, was held to be void on account of the illegal reservations, and as a consequence an execution of the power conveyed no title to a purchaser, the court laid down the following rule: “If, however,' the purchaser at such attempted sale, at the time of the transfer, held a valid lien by a mortgage on the property he sought to purchases and neither before nor after such sale gave up, relinquished, or canceled his lien, or agreed or intended to do so, there was no merger of the lien with the title sought to be conveyed, but the same remained intact, and capable of enforcement. Aliter, if he did, as a consequence of his purchase, cancel and relinquish his lien, or if he intended to do so.” In the instant ease we are furthermore much inclined to think this provision of the instrument now under consideration did not pass title to the two-fifths interest in the improvements, for the reason that the agreement within itself contains' a defeasance clause, —not the provision that the two-fifths interest is to be divested by Lankford buying it back and Peterson’s agreement to reconvey on the payment of the advances, for this does not amount to a defeasance clause (Pitts v. Maier, 115 Ga. 281, 41 S. E. 570), but section six, in which it is “agreed that after twelve months from the date hereof the said W. C. Lankford shall be permitted to pay B. Peterson the said $10,000.00 either in whole or in sums of $2,500.00; a proportionate part of the rent herein contracted to be paid by the said W. C. Lankford to the said B. Peterson to cease upon the payment of such amount, or amounts, that is to say for each $2,500.00 so paid, one fourth of said amount of rent no longer due to said B. Peterson each month and collectible by him.” This, w.e think, in effect amounts to providing that title in Peterson shall cease upon the payment of the advances made.

Counsel for plaintiff in error, however, seem to insist most strongly upon their contention that since, by the terms of, the original contract, it was agreed that when Lankford,should have consummated his loan with the annuity company and received back from it a bond for title, the bond should be- (as was actually done) assigned to Peterson, this operated to render null and void the provisions creating a mortgage. In our opinion it is true that a valid assignment of such a bond for title operates to pass to the assignee all the rights and equities to which the assignor was then entitled (McIntire v. Garmany, 8 Ga. App. 802, 70 S. E. 198; Webb v. Harris, 124 Ga. 723, 53 S. E. 247) ; but, under the facts of the present case, this agreement was but ah executory promise, and by the terms of the contract the assignment was not to go into effect until long subsequent .to the creation of the mortgage. Therefore, the question is, as we see it, whether the mortgage lien became merged into a subsequently acquired title. It is a well-recognized principle of law that merger does not in - general take place unless the parties so intended. Knowles v. Lawton, 18 Ga. 476 (63 Am. D. 290); Ferns v. Van Ingen, 110 Ga. 102 (35 S. E. 347); Coleman & Burden Co. v. Rice, supra; Woodside v. Lippold, 113 Ga. 877 (39 S. E. 400, 84 Am. St. R. 267); Goodell v. Hall, 112 Ga. 435 (37 S. E. 725). It will be observed that the agreement in the present case specifically provides that the bond shall later be assigned as “additional” security; which is certainly equivalent to providing that the mortgage lien shall not be superseded. Even if the transfer of title were not, as in this case, void because of usury, and had been made contemporaneously with the creation of the mortgage, we can see how it might be urged with some force that, since, by the agreement, such assignment of title was to be in the nature of additional security only, if either form of security must fail, the latter, though of a higher form, should he declared invalid as being merely an illegal attempt to add to and supplement, though not to supersede an already existing valid lien. But since the assignment of title is in fact subsequent to the creation of the mortgage and is within itself absolutely void, we do not think that the prior valid mortgage should be held to have been merged therein, where it not only does not appear that such was the intent, but where the contrary purpose is definitely expressed.

2. Exceptions are taken to the-direction of the verdict in favor of plaintiff, on the ground that since the instrument foreclosed was merely an executory promise or agreement on the part of Peterson, whereby he obligated himself to advance certain money to Lankford on condition that the latter himself should comply with certain obligations devolving upon him by the terms of the agreement, the instrument does not afford prima facie proof that such advances were actually made. The defendant, by its answer, denied in general terms the amount alleged 'to be due. The plaintiff having become deceased prior to the date of the trial, the defendant was rendered unable to testify in his own behalf as to the transaction had with the decedent. Ordinarily the mortgage and the collateral obligation which it secures are prima facie evidence of the existence and the amount of the debt therein set forth; but where the consideration of the obligation is not definitely ascertained at the time of its execution, or consists of eontingcnt liabilities or advances to be thereafter made, it becomes incumbent on the holder of the obligation to show the amount 'actually advanced thereunder. 27 Cyc. 1613-14. In this case it is conceded that Lankford fully performed the obligations resting on him under the contract, and which constituted the condition upon the performance of which the advances set forth in the contract were to be made. This, however, of -itself would not be sufficient to carry the burden resting upon the plaintiff. We think, however, there being no conflict in the evidence, that what was actually shown, with all reasonable deductions- and inferences therefrom, demanded a finding that the full amount of the advances which the agreement obligated had in fact been actually made. It will be recalled that by the terms of the contract the $10,000 was to be advanced during the course of construction of the building, in four installments of $2,500 each, the first installment to be paid in May, and the payments to continue through June, July, and August. ' Section five of the contract provided that “during the construction of said building. . . W. C. Lankford is to pay $30.00 per month for the first month said building is under course of construction, $60.00 for the second month, $90.00 for the third'month, and $120.00 for the fourth month, and each month thereafter; said amount to be paid to the said B. Peterson as his part of the rents of said building, or part of building during said time.” By section four it was agreed that “W. C. Lank-ford is to guarantee the rental value of said building to be $300.00 per month, that is to say that the said W. C. Lankford is to pay to the said B. Peterson the sum of $120.00 per month as his part of the rents from said building, be the amounts so received more or less.” At the trial it was admitted “by the plaintiff and the defendant and their attorneys ■ that W. C. Lankford paid to B. Peterson the following amounts on the following dates: $30.00 on June 1st, 1912; $60.00 on July 1st, 1912; $90.00 on. August 1st, 1912; $120.00 on September 1st, 1.912; and also $120.00 on the first of each month thereafter up to and including November 1st, -1914; and that these payments were paid-as interest, and that the said payments- were applied, as interest up to November 1st, 1914.” In addition to this, the plea of the defendant sets up that the contract was a scheme or device by which plaintiff was to collect $12.00 per month on each thousand dollars advanced. And then,- too, the collateral agreement subsequently signed by each of the parties on February 1, 1915, states that “The interest due on the -within and foregoing mortgage has been satisfactorily arranged and paid to November 1, 1914, and it is hereby agreed that said mortgage and the indebtedness secured thereby shall from and after said November 1, 1914, bear interest at the rate of 8% per annum, thus superseding the original plan in said-mortgage as to payment of said interest by rents collected.”

From all of which it appears to us that no other finding could have been had than that the entire $10,000 contemplated by the agreement had been actually advanced.

3. The bill of exceptions contains the following statement: “It was admitted by plaintiff and the defendant and their attorneys that W. C. Lankford paid to B. Peterson the -following amounts on the following dates: $30.00 on June 1st, .1912; $60.00 on July 1st, 1912; $90.00 on August 1st, 1912; $120.00 on September-1st, 1912; and $120.00 on the first of each month-thereafter up to and including November 1st, 1914, and that these payments were paid as interest and that the said payments were applied-as interest-up to November 1st, 1914.” It was held in Atlanta Savings Bank v. Spencer, 107 Ga. 630 (33 S. E. 878), that “When not otherwise directed by the debtor, payments made on a debt infected with usury will be applied first to the payment of the legal interest due at the date of the payment; and any balance remaining after such interest is discharged will go in reduction of the principal. A plea alleging such payment may be properly filed to an action on the debt, notwithstanding more than twelve months have elapsed after the payment before the plea is filed.” In the opinion in that case (p. 635) it is specifically, stated that direction is given thereto by reason of the fact that there was no express agreement that the payments made were to be applied otherwise than in the manner the law would direct. See also Cheapstead v. Frank, 71 Ga. 549; Gramling v. Poole, 111 Ga. 93, 96 (36 S. E. 430). In the Gheapstead case,, supra, it was held that'the “statute of limitations relied upon to defeat this defense is alone applicable to suits brought to recover usury which has been paid, or to a sehoff claiming such a demand.” Thus we think that where the payments of usury have by. direction been so applied, the statute of limitations is applicable; and no error was committed by the trial judge in this respect.

Judgment affirmed.

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


source: Caselaw Access Project

author: Jenkins, J. Jenkins, J.

license: Public Domain

text:
    8262.
    EMPIRE COTTON OIL COMPANY v. CONTINENTAL GIN COMPANY.
    Decided September 18, 1917.
    Rehearing denied September 27, 1917.
    Trover; from Eulton superior court — Judge Bell. May 6, 19-16.
    In June, 1910, the Continental Gin Company sold to J. C. and James Council certain machinery, taking purchase-money notes containing the following provisions: “This note given in part payment for the following machinery sold to the undersigned by Continental Gin Company, viz.: 3 70 saw R. H. Winship plain gins; 3 70 saw class C feeders; 1 210 saw condenser with support and flues, 1 20 saw lint flue; 1 30 inch cylinder D. B. steam power press with transfer and feedings; 1 10 inch class C elevator, as per contract; shafting, pulleys, and belting as per contract. It is expressly understood and agreed by and between the holder and maker of this note that the title and ownership of-said machinery for which this note is given shall remain in the said Continental Gin Company or owner of this note, until this note and all other installment notes, or any renewals thereof, shall be paid in full.” The notes were indorsed by the McRae Oil & Fertilizer Company. The makers were residents of Telfair county, and the notes were there recorded. J. C. and James Council kept and operated the ginning outfit during the' season of 1910-11 on premises in Telfair county owned by the McRae Oil & Fertilizer Company. After the close of the season that company, without' authority of the Councils, took possession of the ginning outfit, and subsequently sold the “land upon which the gin machinery in litigation was located” to the Telfair Fertilizer Company, conveying it by deed dated January 10, 1912. The latter company conveyed the land to the Empire Cotton Oil Company hy a deed dated June 22, 1912, in which was included: “all other property, both real and personal, which the party of the first part owns, of every character whatsoever, and wherever the same may be situated, used in connection with or belonging to the oil and fertilizer business or ginneries of the party of the first part, except its-cash, notes and accounts receivable and other choses in action, the raw material, manufactured products, and supplies on hand, not used in the operation of said oil and, fertilizer or other plants.” The Continental Gin Company brought suit in trover against the Empire Cotton Oil Company for the machinery, and recovered therein, and the defendant moved for a new trial, which was refused, and it excepted. The only ground of the motion besides the general grounds, that the verdict is contrary to law and to the evidence, etc., was the ground that the court erred in admitting in evidence the purchase-money notes containing the reservation of title, for the reason that “they did' not state the locality of nor upon whose land said machinery was located,, whether in Telfair county or elsewhere; that the description of the machinery as set out in the notes was insufficient to describe the machinery, and insufficient to put any one on notice of plaintiff’s claim thereto; and that the notes do not specify the residence of Messrs. J. C. and James Council, the makers of the notes or contracts.”
   Jenkins, J.

Whether or not the defendant occupied the position of a bona fide purchaser, a duly recorded purchase-money note reserving title to personal property described as follows: “The following machinery sold to the undersigned by Continental Gin Company, viz.: 3 70 saw R. H. Winship plain gins; 3 70 saw class C feeders; 1 210 saw condenser with support and flues; 1 20 saw lint flue; 1 30 inch cylinder D. B. steam power press with transfer and feedings; 1 10 inch class C elevator as per contract; shafting, pulleys, and belting as per contract,” was sufficient to afford record notice to third persons of the fact that the title to the property was in the vendor, it also appearing that, following the contract of sale, the vendees took possession of the property, and that it remained in their hands and was operated by them for an entire ginning season. Thomas Furniture Co. v. T. & C. Furniture Co., 120 Ca. 879 (2) (48 S. E. 333); Charles v. Valdosta Foundry &c. Co., 4 Ga. App. 733 (62 S. E. 493). There is no provision 'of law requiring that such an instrument shall state the locality of the machinery or upon whose land it is located, nor need it specify the county of residence of the maker. The 'law requires that the contract shall be executed and attested in the same manner as mortgages on personal property, and recorded within thirty days from its date, in the county where the vendee resides, if a resident of this State, and provides that in other respects it shall be governed by the laws relating to the registration of mortgages. Civil Code (1910), §§ 3318, 3319, 3307, 3257.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., coneur.

King &■ Spalding, Anderson & Rountree, for plaintiff in error.

R. L. J. & S. J. Smith, F. M. & G. F. Mitchell, contra.

ON MOTION FOR NEW HEARING.

Jenkins, J.

It is contended by counsel for the plaintiff in error, both in their original brief and in their motion for rehearing, that the machinery involved in this suit was intended to be and actually was attached to land, thereby becoming fixtures, and that therefore the vendor of the machinery could not, by reason of having reserved title to it, recover it from the owner of the land,— the plaintiff in error, — which, without actual knowledge of such reservation of title, bought the land from the company to which the McRae Fertilizer Company, the lessor of the premises to the purchasers of the machinery, had sold the land. Section 6142 of the Civil Code of 1910 provides: “When a. party desires to review the judgment of the court in granting or refusing a new trial, the plaintiff in error shall specifically set out the errors complained of.” The only assignment of error which it would-seem, under any view, might be taken as covering the point here mentioned is the general ground, contained in the motion for a new trial, that the verdict is “contrary to law.” Under the rulings made by the Supreme Court, such an assignment presents nothing for the decision of the appellate court. Napier v. Burkett, 113 Ga. 607 (38 S. E. 941); Roberts v. Keeler, 111 Ga. 181 (36 S. E. 617). See also Civil Code (1910), § 6203; McKelvin v. State, 17 Ga. App. 413 (87 S. E. 150). But, apart from this, we do not think the evidence required the jury to find that the machinery had become a part of the realty. It is clear that such was not the intention of the vendor or his vendee, since by the terms of the sale the title to the machinery was to remain in the vendor until the purchase money was paid. The McRae Oil & Fertilizer Company, who the plaintiff in error contends was the owner of the land to which the machinery became affixed and was the lessor of the vendee of the machinery, became a party to this contract by its indorsement of the note. Section 3621 of the Civil Code of 1910. declares that “Anything intended to remain permanently in its place, though not actually attached to the land, such as a rail fence, is a part of the realty and passes with it. Machinery, not actually attached, but movable at pleasure, is not a part of the realty.” This provision of law does not, however, always provide a certain and easy test by which it can i be determined in-a given case whether or not the article in question remains personalty, or is attached to the realty and a part thereof. In Smith v. Odom, 63 Ga. 499 (2), it was said: “Prima facie, the running-gear of a gin, in position for use, and attached to the gin-house, .is a fixture and passes with the land. The gin, proper, is personalty, and does not pass without express agreement or something equivalent. The same is true of the band. But to treat all these things as fixtures, or on the* other hand as personalty, is not inconsistent with an absolute deed conveying the land and appurtenances, if the true intention of the parties can be obtained from the res geste of the contract. Where there is doubt or uncertainty, the jury, and not the court, should determine the question of intention.” See also Power v. Garrison, 141 Ga. 429 (81 S. E. 225); Pendley Brick Co. v. Hardwick, 6 Ga. App. 114 (64 S. E. 664). In the present case the machinery included no engine or boiler, and nothing was imbedded in brick or wood or attached in a permanent manner to the walls; but the gins were merely screwed to the floor on one side, and the shafting and pulleys on the other, and the other things were not fastened. If the shafting and pulleys were to be considered part of the running-gear, any presumption that they were intended to be part of the land was, in the minds of the jury, rebutted by the circumstances of this case, including the original intent of the parties. Is the case altered by the fact that the lessor of the premises to the purchasers of the machinery sold the land to another company, and that the vendee of the land in turn conveyed the premises, with a clause specifically including the machinery, to the plaintiff in error, which claims as an innocent purchaser, not shown to have had actual knowledge of the rights of the vendor of thq machinery under a duly recorded reservation of title? Assuming, as we do, that the jury were authorized to find that the machinery had not become a part of the realty, but retained its character of personalty, the sale of the realty first by the lessor of the premises, and then by the lessor’s vendee, could not affect the rights of the plaintiff under the plaintiff’s duly recorded reservation of title to the machinery. Were a contrary assumption to be made as to the character of the machinery, and were it to be treated, under the evidence, as having been affixed to the realty so as to become a'part thereof, then there is abundant authority for holding that a vendee of the premises, without notice, would be unaffected by the reservation.

• Appended to the report of the case of Reynolds v. Ashby, considered and determined by the House of Lords, in 1 B. R. 0., 653, there is an exhaustive, note in which the rulings of American courts are considered, and on page 665 of this annotation the writer says: “With a single exception, it seems to have been unanimously, held in the United States that the rights of a purchaser of the realty without notice of the claim of the seller of fixtures are unaffected by the latter’s retention of title thereto, or reservation of a right to retake them upon default in payment of the purchase price.” Numerous cases supporting this view are then cited, with the following comment: “A reason sometimes given why a bona fide purchaser of realty will obtain good title to fixtures notwithstanding an agreement made by the person installing them that title thereto should be retained by the seller until payment of the purchase price is that, as the seller agrees that the fixtures shall be converted in all outward appearance into real property, he assumes the risk of their being sold as such, and it would be contrary to justice to allow the seller to save himself by casting the consequences upon the purchaser of the realty.” As stated by this writer, “Correlatively, where the grantee of the realty takes with notice of the rights of the seller of fixtures, such rights may be asserted against him. This doctrine is usually. stated with the qualification that the property must be susceptible of retaining the character of personalty, and not become merged with the realty by incorporation therewith, as in the familiar instance of materials which have become part of the house. Or as it is sometimes otherwise put, the property must be removable without material injury to the realty or to itself.” As to the effect of legal notice of such a reservation this writer says: “The difference of judicial opinion which marks nearly every phase of the subject under discussion also exists upon the question how far the filing of a chattel mortgage or contract of conditional sale is sufficient to charge intending purchasers or encumbrancers of the realty with notice.” - That it will have such effect is held in numerous cases there cited, but the contrary view is announced by many of the courts of this country. See Tippett v. Barham, 180 Fed. 76 (103 C. C. A. 430), as reported in 37 L. R. A. (N. S.) 119, and the note appended. While we are inclined to think the view first stated is founded upon better reason and supported with better-considered authority, still, as will be seen from what we have already stated, it is not necessary that this question should be determined so far as this case is concerned, as the jury were authorized to find that the machinery had altogether retained its character of personalty; and it is therefore not necessary to consider whether, treating it as a fixture removable without material injury to the realty, it could be claimed by its vendor, which had given legal notice of a reservation of title. There are other contentions made by the defendant in error growing out of the evidence, which, though of seeming merit, we do not think it necessary to state and consider. The motion for rehearing, upon consideration of all of its grounds, is denied.


author: Bloodworth, J.

text:
    8185.
    Wheeler, by next friend, etc. v. McLaughlin.
    Decided September 18, 1917.
    Complaint; from Ben Hill superior court — Judge George. April 10, 1916.

      Padgett■ & Watson, 0. H. Parlcer, J. E. Futch, for plaintiff.

      Merrill & Grantham, Otis H. Elkins, for defendant.
   Bloodworth, J.

The judge did not abuse his discretion in refusing to continue the ease; nor did he err in refusing the motion to strike the plea, or in admitting evidence, or in directing a verdict for the defendant.

Judgment affirmed.

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


text:
    8296.
    Trapnell v. Bird.
   Jenkins, J.

1. An exception based upon the refusal .of the court to award a nonsuit will not be considered, where, subsequently thereto, the case is submitted to the jury, and, a verdict being rendered against the defendant, a motion' for a new trial is made' which presents the complaint that the verdict is contrary to the evidence and without evidence to support it. Atlantic Coast Line R. Co. V. Blalcek, 8 Ga. App. 44 (2) (68 S. E. 743) ; Henderson v. Maysville Guano Co., 15 Ga. App. 69 (82 S. E. 588) ; Central of Ga. Ry. Co. v. Brinson, 18 Ga. App. 114 (5) (88 S. E. 1003) ; Taylor v. Johnson, 18 Ga. App. 162 (7) (89 S. E. 77) ; Gunn v. Wilson Co., 20 Ga. App. 16 (92 S. E. 721, 723).

2. The evidence was sufficient to authorize the jury to find that the goods were furnished to the cropper of the defendant solely on the defend* ant’s credit, and upon an original and not a collateral undertaking had between the plaintiff and the defendant. This being true, the promise of the defendant was binding, and does not come within the inhibition of 'the statute of frauds. Baldwin v. Biers, 73 Ga. 739; Cruse v. Foster, 76 Ga. 723; Cordray v. James, 19 Ga. App. 156 (91 S. E. 239).

Decided September 18, 1917.

Complaint; from Candler superior court — Judge Hardeman. May 1, 1916.

Kirkland & Kirkland, H. B. Strange, for plaintiff in error.

Lanier, Deal & Benfroe, contra.

3. The other assignments of error, not being referred to in the brief of counsel for plaintiff in error, are deemed to have been abandoned.

Judgment affirmed.

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


author: George, J.

text:
    8856.
    Jones v. The State.
    Decided September 19, 1917.
    Indictment' for misdemeanor; from Lowndes superior court-judge Harrell presiding.

      James M. Johnson, Dan B. Bruce, for plaintiff in error.

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

1. Exceptions pendente lite can not be considered unless error is assigned thereon either in the main bill of exceptions or in the reviewing court by counsel for plaintiff in error before argument begins. Kent v. State, 18 Ga. App. 30 (88 S. E. 913); Shaw v. Jones, 133 Ga. 446 (66 S. E. 240). The bill of exceptions recites that exceptions pendente lite were duly taken to the overruling of the demurrer to the indictment, but no assignment of error is made either in the bill of exceptions or in this court, and the judgment overruling the demurrer can not be considered.

2. .The court did not err in admitting evidence to the effect that quantities . of the drug alleged to have been illegally sold were, subsequently to the arrest of the accused, .found in his residence and at his place of business, over the objection that the drugs were discovered as the result of an illegal search of the defendant’s premises. Smith v. State, 17 Ga. App. 693 (88 S. E. 42), and eases there cited.

3. The assignments of error not dealt with above are without substantial merit, and the verdict,. which has the approval of the trial judge, is not without legal evidence to support it.

Judgment affirmed.

Wade, C. J., and Buhe, J., concur.


text:
    7786.
    WILLIAMS MANUFACTURING COMPANY v. SCHOFIELD’S SONS COMPANY.
    1. Where a' foundry enters into a contract with a manufacturer of a patented hay-press to furnish 500 sets of hay-press castings, and in the contract is a clause in which the foundry agrees to “furnish properly all eastings needed by the undersigned [the manufacturer of the hay-press], whether of the exact pattern now used or not,” this clause is not a warranty of “the particular goods to be furnished, both as to kind and quality.”
    2. ' While the damages complained of in this case could possibly be traced to the defects in the castings, they were remote and consequential, and not the natural consequence of a breach of the contract, and were not such damages as the parties contemplated at the time the contract was made, as a probable result of its breach.
    3. There was no error harmful to the defendant in the failure of the judge to change the date of the order on the demurrer from the 6th to the -7th of July.
    4. There is no law which allows costs to be taxed against the defendant in error for a portion of the record which is made a part thereof at the suggestion of the presiding judge.
    Decided September 19, 1917.
    Complaint; from city court of Macon — Judge Guerry. July 8, 1916.
    J. S. Schofield’s Sons Company sued' Williams Manufacturing Company for $366.75, on an account,- the first item of -which was dated October 2, 1912, and the last dated November 30, 1912. Practically the entire account was for castings. Williams Manufacturing Company filed a plea in which was set up the course of dealing for several years between the parties, consisting in the manufacture of castings for a hay-press, and that the Williams Manufacturing Company owned a patent right granted by the United States, which gave the Williams Manufacturing Company the exclusive right to make and sell the hay-press, and further alleging that they furnished to the plaintiff a particular kind of pattern used for the purpose of making the chilled castings; that owing to the friction in the operation of certain described parts, to prevent wear, it was necessary that these parts should be very hard, and for this reason the defendant furnished the pattern necessary 'to make this particular kind of casting; also that, owing to the course of dealing for several years, it was fully understood between the parties that these particular parts should be chilled, and that the plaintiff had been making these parts of the necessary quality for several years, until about May, 1912, when the plaintiff furnished the defendant a large lot of eastings of a-very inferior quality, and so soft as to. be absolutely useless in the operation of the hay-press, for the reason that they would wear out in a few hours, whereas, when properly made, they would last from seveh to eight years; and that notwithstanding that the plaintiff knew at the time it furnished these castings that they were soft and unfit for the use intended, no notice of their quality was given to the defendant. Attached to the plea was a copy of the contract between the parties, as follows: “Macon, Ga., Mar. 9, 1912. J. S. Schofield Sons Co. agree to make five (500) sets of hay-press castings at two cents per pound, for the Williams Manufacturing Company. Settlement by note on the 5th of each month. Due November 10. It is agreed that all orders for parts of sets during this year will be furnished and billed at the above prices and terms, and further that parts for power press as heretofore furnished, will be made at the above price. Said Schofield Sons agree to furnish properly all eastings needed by the undersigned, whether of the exact pattern now used or not. Said Schofield Co. agree to keep pattern in good repair at their own expense. Said Schofield Sons agree to replace free of charge all defective castings furnished by them.” In the original plea it was alleged that by reason of the fact that the defendant was ignorant of the inferior quality, it had equipped presses with these parts and.shipped them through a large territory, and was unable to designate which presses these parts were used upon until complaints were made, and for that'reason asked leave to amend their plea later. On July 5, 1916, the defendant filed an amendment to its plea, exhibiting a list of items and expenses amounting to $1,339.89. Immediately upon offer of this amendment the plaintiff demurred to both the'original plea and the amendment, as follows: “Plaintiff demurs to the plea and answer of the defendant as amended, on the following grounds: 1. Because the same sets out no defense to plaintiff’s petition, and is not good as a plea of recoupment or set-off. 2. Because the damages sought to be recovered áre too remote and can not be traced solely to the alleged breach of the contract, and are not capable of exact computation, and are speculative in their nature. 3. It specially demurs to so much of said plea and answer as amended as seeks to recover expenses incurred, because said expenses do not appear to have been necessary expenses incurred in complying with the contract, but were expenses incurred by the defendant in the conduct of its business independent of the contract. 4. Because by the express terms of the contract relied upon by the defendant, plaintiff’s warranty was to replace, free, all defective castings; and the contract therefore excluded the recovery of damages for defective castings accepted and used by the defendant. 5. Specially to so much of the plea and answer as amended as seeks to recover for injury to defendant’s businéss and for loss of trade and business, because.such damages are remote and speculative and not capable of exact computation and can not be traced solely to the alleged breach of the contract. 6. Specially to so much of said plea and answer as amended as seeks to recover damages for injury to trade and business, because it does not appear specifically or definitely how or wherein defendant was injured. 7. Specially to so much of the amended plea and answer as seeks to recover expenses, salary, and price on account of hay-presses shipped to Laurenburg and Augusta, because the said damages are not itemized and no bill of particulars is attached. 8.’ Specially to so much of the amended plea and answer as seeks to recover damages for loss of hay-presses shipped to Parlin & Orendorff Company, because the damages are not itemized and no bill of particulars is attached showing the items therefor.” (Paragraphs 9 and 10 of the demurrer are the same as paragraph 8 except as to the parties.and places to which the presses were delivered.) "11. Specially so much of said amended plea and .answer as seeks to recover damages upon resale of hay-presses shipped to Winnewood, Oklahoma, because the damages are not itemized, and it is not shown when, where, .or to whom said resales were made, or that the plaintiff was notified of the time and place df resale, and because said damages are not recoverable, defendant not establishing by its plea and answer a proper measure of damages. 12. Specially to so much of said amended plea and answer as sets up the loss of sales, because it is not shown what sales were lost, or to whom, or when, or how, or wherein plaintiff was responsible for such loss of sales,- and because such damages especially are speculative and are not the direct result of the alleged breach of the contract, or within contemplation of the parties when said ¡contract was made.”

      ' The demurrer was sustained on each and all the grounds thereof. Additional pleas were filed, but need not be considered here. The trial resulted in a verdict for the plaintiff, for $187.00, principal, and $46.95, interest.

      L. D. Moore, for plaintiff in error.

      Hardeman, Jones, Parle & Johnston, contra.
   Bloodworth, J.

(After stating the foregoing facts.)

1.- In the bill of exceptions it is alleged that the court erred in sustaining the demurrer to the plea, and that this error “was controlling and affected the final result of the case, and that the court erred in permitting said verdict to' be rendered and said judgment to be entered.” There is no. exception to the charge of the court, no allegation of error in admitting or rejecting evidence, and no contention that the evidence is insufficient to support the verdict. The only question, therefore, for us to determine is whether the court erred in sustaining the demurrer. Counsel for plaintiff in error insists that in the following clause of the contract, to wit: “Said Schofield Sons agree to furnish properly all castings needed by the undersigned, whether of the exact pattern now used or not,” the word “properly” being descriptive of the subject-matter, this clause was a warranty of “the particular goods to be furnished, both as to kind and quality.” In this we can not agree with learned counsel. It occurs to us that though the word “properly” appears in the contract, it was not the word originally intended, but that it should have been “promptly.” However, we must deal with the words of the contract as we find them. The word “properly” in this sentence is not descriptive of the subject-matter of the contract, — the 500 sets of hay-press castings, — but refers to the word “furnish,” immediately preceding it. Whatever the words “furnish properly” may mean, certain it is that the clause in which they occur can not be considered as a warranty of the “particular goods to be furnished, both as to kind and quality.” The words descriptive of the property sold were not the words in this clause of the contract, but the words in the first clause thereof, to wit: “500 sets of hay-press castings.” Here is a contract.without express warranty, for the sale of 500 sets of hay-press eastings;' and, if such .castings were delivered and accepted, this was a waiver of all defects which by ordinary care and prudence might have been discovered before delivery. If any castings were defective, the contract itself, in the clause, “Said Schofield Sons agree to replace free of charge all defective castings furnished by them,” provides the remedy contemplated by the parties. See Bond v. Perrin, 145 Ga. 200 (88 S. ,E. 954). “When a known, described, and definite article is ordered of a manufacturer, although it be stated by the purchaser that it is required for' a particular purpose, yet if the known, described, and definite thing, which is of the kind and quality called for by the order, be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.” Fay & Eagan Co. v. Dudley, 129 Ga. 314 (58 S. E. 826); City of Moultrie v. Schofield’s Sons Co., 6 Ga. App. 464 (2) (65 S. E. 315). There is nothing in the contract under consideration to show that any part of the castings were to be hard chilled, and no warranty to show that they would answer the particular purposes intended by the buyer. “In a contract for the sale of goods, words of description of the subject matter of the sale-are ordinarily to be regarded as simply a warranty that the goods delivered shall be of the character described in the contract.” Fay & Eagan Co. v. Dudley, supra; Henderson Elevator Co. v. North Ga. Milling Co., 126 Ga. 279 (55 S. E. 50).

2. Under the express terms of the contract, if the plaintiff furnished the defendant with defective castings, the defendant could secure good ones by applying to the plaintiff, and this would settle the question and cure the breach. But the defendant alleges that the defects were latent, that it did not know of them until complaints reached it from customers, and then the damage had been done. Its plea is based upon this idea. While the damages complained of could possibly be traced to the defects in the eastings, they were remote and consequential, and not the natural consequence of a breach of the contract; and surely they were not such damages as the parties to the contract contemplated at the time the contract was made, as the probable result of its breach. In Tompkins v. Monticello Cotton Oil Co., 153 Fed. 817, Speer, District Judge, said: “Now, the object of damages is compensation, and it is a general rule that the party committing the breach is liable only for such losses as would naturally and probably be in the contemplation of the parties at the time of making the contract. In other words, the parties would not be held liable for contingent damages which they could not anticipate as reasonably and probably resulting for [from?] the breach at the time they made the contract, after weighing its facts and conditions.” Under our view of the case, sections 4394 and 4395 of the Civil Code of 1910 settle the proposition adversely to the plaintiff in error, and demand a ruling sustaining the demurrer. Thornton v. Cordell, 8 Ga. App. 588 (70 S. E. ,17) ; Ralph T. Birdsey Co. v. Porter, 18 Ga. App. 391, 392 (3) (89 S. E. 435); Findlay Brick Co. v. American Sewer Pipe Co., 18 Ga. App. 466 (89 S. E. 535); Water Lot Co. v. Leonard, 30 Ga. 560, 577; Willingham v. Hooven, 74 Ga. 234 (58 Am. R. 435); Seaboard Air-Line Ry. v. Harris, 121 Ga. 707 (49 S. E. 703); Tompkins v. Monticello Cotton Oil Co., supra.

3. In the bill of exceptions it is alleged that the court erred in 'not changing the date of the order on the demurrer from the 6th to the 7th of July. It appears from the record that on the 6th day of July the judge signed an order in which the demurrer was “overruled,” but on the next day decided that the demurrer should be sustained, and, as the original order had not been recorded, the word “overruled” was stricken and the word “sustained” inserted in lieu thereof, but the date was not changed. This appears in an explanatory note of the trial judge. It does not appear that the failure to change the date affected the rights of the plaintiff in error, and this alleged error is not referred to in its brief.

4. It appears that when the bill of exceptions was presented to the presiding judge he requested the plaintiff in error to specify as a part of the record certain additions to the plea. Relatively to the time of filing the demurrer, the record is not clear as to the time of filing these additional pleas, but it does appear that the demurrer did not refer to them. As the whole case here is determined by the ruling on the. demurrer, it was unnecessary to add to the record these additional pleas. Counsel for plaintiff in error requests that the cost of incorporating these additional pleas in the record be taxed against the defendant in error. There is no law which allows such costs to be taxed against the defendant in error when a portion of the record is made a part thereof at.the suggestion of the presiding judge.

5. The court having properly sustained ttie demurrer to the original plea, and to the amendment of July 5, the trial haring proceeded under the amendment to the plea of July 7, and nothing appearing to show that the judgment was erroneous, it must- be

Affirmed.

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


text:
    7789.
    JONES v. CRAWFORD et al., receivers.
    Where a life-insurance agent entered into a contract with a person to insure his life, and agreed to rebate a part of the first premium, and took a note for the amount of the premium less the amount of the rebate, the agreement to rebate was an integral part of the contract which culminated in the giving of the note, and, the agreement to re-. bate being illegal and void, the note given in furtherance of the contract was itself illegal and void.
    Decided September 19, 1917.
    Complaint; from city court of Cairo — Judge Willie. July 19, ■ 1916.
    The Bank of Whigham sued R. H. Jones on his promissory note, payable “to the order of myself,” and indorsed by him and others, the bank alleging that it was the holder and owner of the note, and that the note was due and unpaid. The defendant filed a plea in which he admitted a prima facie ease in the plaintiff, and assumed the burden of,proving his defenses. He further pleaded that the note was void because it was given for a part payment of-the first premium on an insurance policy, and that the agent of the insurance company, W. V. Wall, allowed to him, as a rebate and special inducement not allowed to other persons, a reduction from the premium, and also, as an additional rebate, the interest from the date of the note, to wit, January 25, 1913, until its maturity on December 1, 1913, and that “the said note, because of the above-stated facts, is absolutely null and void, being part of an illegal, immoral, and criminal transaction which courts of law may punish but can not enforce.” The plea further alleges that “0. C. 'Spenee, one of the alleged indorsers of said note, was acting with and assisting said W. V. Wall in all of the said transaction, and was then and there a vice-president of the Bank of Whigham, the plaintiff,” and further alleged that the bank had notice of the vice in the note, “through the said vice-president.”
    The plaintiff, by way of replication, amended its petition and denied “that it had any notice of any of the defects set forth in defendant’s plea,” and alleged “that it purchased said note before maturity for value and in good faith.” The plaintiff demurred to the defendant’s answer, as follows: “1st. Because the facts alleged show no immoral, illegal, and criminal consideration. 2d. Because the facts as alleged show a valid transaction. 3d. Because it is not shown in what way O. C. Spence was connected with said transaction. 4th. Because it is not shown how the knowledge of said transaction was brought to plaintiff. 5th. Because it is not shown that knowledge of said transaction was acquired by the said O. C. Spence while in the discharge of his duties as an 'officer of plaintiff. Plaintiff demurs to paragraph 5: 1st. Because it is not alleged that plaintiff is not an innocent purchaser. 2d. Because it is not shown how the knowledge of said 0. C. Spence as to the condition of the insurance company was notice to plaintiff. Plaintiff demurs to paragraph 5, and especially subparagraph (d) : 1st. Because the allegations therein are mere conclusions. 2d. Because it is not shown that said 0. C. Spence acquired such knowledge while in the discharge of his duties as an officer of plaintiff.” The judge sustained the demurrer, on all of its grounds, and struck the plea.

      M. L. Ledford, Claude Christopher, for plaintiff in error.
   Bloodworth, J.

(After stating the foregoing facts.) It is of course neither illegal, immoral, nor criminal for an insurance agent, in good faith, to take a note for the full amount of the first premium on the policy sold, but in the instant ease the plea alleges that a note was taken, due at a future date, without interest, for an amount less than the premium, and the amount of this deduction and the failure to charge interest was a rebate given the insured; and it is insisted that it was unlawful for the agent to give this rebate, and that, as the note is a part of this “illegal, immoral, and criminal transaction,” the note is null and void. We agree with this contention- of the defendant. Under the pleadings the agreement to rebate, which culminated in the giving of the note for an amount less than the premium, was an integral part of the contract, — a contract under which both the insured and the agent were subject to prosecution. The statute (Ga. L. 1912, pp. 119, 129; 2 Park’s Ann. Code, § 2440 (b)) declares that no insurance agent “shall enter into any contract to rebate any insuranee premium or any part thereof of any insured or other person,”, and that “Any person acting as agent for any insurance company and the party receiving the benefit of any such rebate or discrim-" ination in violation of this section shall be deemed guilty of the offense of misdemeanor and shall be punished as provided in section 1065 of the Penal Code.” In 2 Comp. Laws of Michigan, paragraph 7219, we find a statute somewhat similar to ours and in part as follows: “nor shall any such company or agent pay or allow, or offer to pay or allow, as' inducement to insurance, any rebate of premium payable on the policy, or any special favor or advantage in the dividends or other benefits to accrue thereon, or give or make any valuable consideration or inducement whatever not specified in the policy contract of. insurance. .Any company which'shall violate any of the provisions of this section shall forfeit to the State the sum of five hundred dollars for each violation, to be recovered by the attorney-general by appropriate action in any court of competent jurisdiction; and any judgment therefor may be collected in the same manner as herein provided for collecting judgments rendered in favor of policyholders. And any officer or agent who shall violate any of the provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by imprisonment in the county jail not exceeding one year, or by á fine of not less than fifty dollars and not exceeding five hundred dollars, or by both such fine and imprisonment in the discretion of the court.” A suit was brought upon a note for $139, which was given for a half of the first premium on an insurance policy. The defendant pleaded, that, as an inducement for him.to take.the policy, “plaintiff offered to give him the benefit of the agent’s com- . mission, viz., one-half of the premium, and take defendant’s note ior the remainder, i. e., $139, and that this reduction of the first premium was a violation of Act No. 171 of the Public Acts' of 1889, being 2 Comp. Laws, § 7219, and rendered the policy illegal and void.” The headnote of the decision of the'Supreme Court in that case says: “2 Comp. Laws, § 7219, makes it a misdemeanor for a life-insurance agent to pay or allow any rebate of premium as an inducement to insurance. In an action by such agent on a premium note, the amount of which he had paid to the company, it appeared that he had induced defendant to take the insurance by giving him the benefit of the agent’s commission of one-half of the premium, taking the note in suit for the balance. Held, that the note was void for want of consideration, by reason of the illegality of the insurance contract.” Heffron v. Daly, 133 Mich. 613 (95 N. W. 714). In the decision Chief Justice Hooker, in referring to the charge of the circuit judge to the jury, said: “He instructed them that the note was not void by reason of the violation of the statute. 2 Comp. Laws, § 7219. In this we think he erred. The contract of insurance was prohibited by law, and the act of making it was a penal act. The contract was therefore illegal, and, being so, the consideration for the note failed.” Like the Michigan statute, the Georgia law quoted above expressly prohibits insurance agents from entering into any contract to rebate insurance premiums or any part thereof, and said law also makes the act of the agent in doing so a penal one. As the act of rebating is illegal, the note sued on is illegal and void, because given in consideration of a contract of which a part of the consideration is in express violation of a statute that makes its violation a crime. The note is tainted with the illegality which attached to the original contract.

Under the decisions of thi.s court and the Supreme Court, “an illegal and void contract becomes an immoral contract when it is made a crime by statute (Rhodes v. Beall, 73 Ga. 641; Exchange Bank v. Henderson, 139 Ga. 260, 263 (77 S. E. 36, 51 L. R. A. (N. S.) 549)); and a promissory note given for an illegal and immoral consideration is void and its collection can not be enforced by law, even in the hands of an innocent purchaser for value before due and without any notice of defenses to it.” International Agricultural Corporation v. Spencer, 17 Ga. App. 649 (87 S. E. 1101); Civil Code, §§ 4256, 4286; Johnson v. McConnell, 65 Ga. 129, 131; Conley v. Sims, 71 Ga. 161; Cunningham v. National Bank, 71 Ga. 400 (51 Am. R. 266); Smith v. Wood, 111 Ga. 225 (36 S. E. 649); Leonard v. American Life &c. Co., 139 Ga. 274 (77 S. E. 41). In addition to the above, the plea of the defendant shows that he and the insurance agent were “participators in a common crime,” the one giving and the other receiving the rebate, and “Where parties engage in illegal transactions, the courts will not interpose to grant any relief. The principle of public policy is, that no court will lend its aid to a man upon an illegal or an immoral act, but will leave the parties where it finds them, no matter how the illegality of the contract may be brought before it, whether by direct suit or by way of set-off. 3 Ga. 182; 11 Ib. 547; 21 Ib. 46; 41 Ib. 315.” Thompson v. Cummings, 68 Ga. 128. “In courts of equity, the general rule is, that where parties are concerned in illegal agreements or other illegal transactions, whether they are mala prohibits or mala in se, the court, following the rule of law as to participators in a common crime, will not interpose to grant any relief; acting upon the well known maxim, in pari delicto potior est conditio defendentis et possidentis. In all such cases, the rule is for the court to leave the parties where it finds them, giving no relief and no 'countenance to claims of that character.” Carey v. Smith, 11 Ga. 540 (5). See also Bugg v. Towner, 41 Ga. 315; Tompkins v. Compton, 93 Ga. 525 (21 S. E. 79); Ohio Life Ins. & Trust Co. v. Merchants Ins. &c. Co., 11 Humph. 1 (53 Am. D. 742); Johnson v. McConnell, 65 Ga. 129-131; Conley v. Sims, 71 Ga. 161. The facts in this case readily distinguish it from Heard v. National Bank of Wilkes, 143 Ga. 48 (84 S. E. 129), and similar cases.

For' the reasons above stated, the court erred in striking the plea of defendant and in rendering judgment for the plaintiff.

Judgment reversed.

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


text:
    8263, 8264.
    McKENZIE v. LOEW MANUFACTURING COMPANY et al.; and vice versa.

    A bail-trover action can not be amended by adding new and distinct parties, nor by adding a new and distinct cause of action, nor by changing the prayer from one asking a judgment for the property sued for, with the rentals thereof, to one asking that it be decreed that a third person, not a defendant to the original suit, "has no right, title, interest, or lien in and to the property in dispute, that the plaintiff is the true owner thereof, and that he holds it free from any claim or pretended claims of said [third person], and is entitled to the possession thereof, and that the plaintiff do have judgment accordingly for said property.”
    Decided September 19, 1917.
    Trover; from Fulton superior court — Judge Bell. April 22, 1916.

      Hewlett, Dennis £■ Whitman, for plaintiff:

      May son & Johnson, Hendrix & Silverman, Tye, Peeples & Tye, for defendants.
   Bloodworth, J.

McKenzie brought a bail-trover action against Louisville & Nashville Railroad Company and its agent in Atlanta, G. I. Walker, alleging that defendants were in possession of one Loew Victor marine gas-engine, the property of petitioner, worth $850, of the rental value of $20 per month, and that petitioner had made demand upon said defendants for said property and they had “refused to deliver the same to him or to pay him the profits thereof.” The prayer of the petition was for “judgment against the said defendants, and each of them, for said personal property, or in lieu thereof, for the value of the same with the rentals.” "Defendant Walker died, and by order his name was stricken from the case. "Upon failure of the. defendant to do so, the plaintiff gave bond and took possession of the property in controversy. The plaintiff then offered to amend his petition by alleging in part: “2. That said property had been delivered to the Louisville & Nashville Railroad Company by the Loew Manufacturing Company, a corporation of Cleveland, Ohio, at Cleveland, Ohio, to be transported by the Louisville & Nashville Railroad Company to Atlanta, Georgia, and, at the instance and request of the said Loew Manufacturing Company, the defen dánt company had issued its bill of lading therefor, consigning said property to the Loew Manufacturing Company, Atlanta, Georgia, order notify the plaintiff in this case, to wit: M. C. McKenzie; and at the date of filing this suit said property had been transported by said Louisville & Nashville Railroad Company to Atlanta, Georgia, and was held by it ready for delivery, and the plaintiff had paid said railroad company all of its charges held by said carrier against said property for its transportation, and otherwise. 3. Plaintiff was unable to deliver to’ said carrier the bill of lading by which and under which said property had been transported, because the same was held by the Loew Manufacturing Company under a pretended lien or claim of said Loew Manufacturing Company; but Said property was the property of this plaintiff, and the said Loew Manufacturing Company had no lien and no charges thereon, and no right to the possession thereof, and had wrongfully and without any authority of law or right whatever caused said property to be shipped to themselves as consignees, retaining the bill of lading in their name, and thus making it appear that they were either the owners of the property or had some equity or interest therein or lien thereon — none of which they had.” To this amendment Loew Manufacturing Company filed a demurrer, and the court sustained the following grounds thereof: "1. Said proceeding is a statutory proceeding, to wit, an action by trover, and same can not be changed into an equitable proceeding. 2. A trover suit is an action in tort, and same can not be amended and converted into an equitable proceeding either in part or in whole, nor can an equitable cause of action be joined with a trover suit. . . 8. This question was not involved in an equitable proceeding, and hence the amendment herein set up should not have been allowed. 9. The particular amendment was not germane to the original cause of action. The original cause of action proceeded solely upon the ground that the defendant had converted property. The amendment undertook to charge that the shipper was improperly claiming title, and hence the shipper should be made a party. This was a different and a new cause of action and the court should not have allowed same.” The result of this ruling was the striking of the amendment.

It will be noted that the original suit was a bail-trover action, an action ex delicto, by M. C. McKenzie against the Louisville & Nashville Eailroad Company and G-. I. Walker. “The gist of the action of trover is a conversion of the plaintiff’s property by the defendant; that is to say, that the defendant wrongfully deprived the plaintiff of possession.” Bell v. Ober, 111 Ga. 672 (36 S. E. 905); Kaufman v. Seaboard Air-Line Ry., 10 Ga. App. 248 (73 S. E. 592). The amendment sought to change the suit by adding a new defendant, the Loew Manufacturing Company, and introducing a new cause of action as hereinafter set out. The prayer of the amendment was: “Wherefore petitioner prays that the Loew Manufacturing Company be made party' defendant, and that this' court do find and adjudge and decree that the said3 Loew Manufacturing Company has no right, title, interest,- or lien in and to the property in dispute, that the plaintiff is the true owner thereof, and that he holds it free from any claim or pretended claims of said Loew Manufacturing Company and is entitled to the possession thereof, and that the plaintiff do have judgment accordingly for said property.”

From the above it appears that the wrong complained of in the original petition was the conversion of the gas-engine by the Louisville & Nashville Railroad Company, while the wrong complained of in the amendment was that the Loew Manufacturing Company "wrongfully and without any authority of law or right whatever caused said property to be shipped to themselves as consignees, retaining the bill of lading in their name, and thus making it appear that they were either the owners of the property or had some equity or interest therein or lien thereon — none of which they had.”

Not only is a new party and a-new cause of action embraced-in the amendment, but the plaintiff therein prays for a different and distinct judgment to that asked for in the original petition. It seems to us that the issues in this case are settled by § 5683 of the Civil Code (1910), which is as follows: “No amendment adding a new and distinct cause of action, or new and distinct parties, shall be allowed unless expressly provided by law.”. In the case of Long v. Bullard, 59 Ga. 355, 357, Chief Justice Warner says: “Neither a declaration for a legal cause of action, nor a declaration for an equitable cause of action, can be amended by adding a new and distinct cause of action, or new and distinct parties. Equity is ancillary, not antagonistic, to the law; hence equity follows the law where the rule of law is applicable, and the analogy of the law where no rule is directly applicable. Code, § 3083. A plaintiff can no more amend his declaration for a legal cause of action by adding a new and distinct cause of action thereto, or new and distinct parties, under the pretext of an equitable proceeding, than he could amend his declaration for an equitable cause of action by adding a new and distinct cause of action, or new and distinct parties thereto, inasmuch as the law prohibits it in both cases.” On adding new parties, see Delaney v. Sheehan, 138 Ga. 510, 513, 514 (75 S. E. 633); Glaze v. Bogle, 105 Ga. 398 (3) (31 S. E. 169); Neal v. Robertson, 18 Ga. 399; Bass v. Bearden, 6 Ga. App. 696 (65 S. E. 693). As to new causes of action see Barrett v. Mason, 143 Ga. 464 (85 S. E. 340); Cox v. Georgia R. &c. Co., 139 Ga. 533 (77 S. E. 574); Sharpe v. Columbus Iron Works Co., 136 Ga. 483 (71 S. E. 787); City of Colum bus v. Anglin, 120 Ga. 785 (5), 789, 792 (48 S. E. 318); Roberts v. Atlanta Real Estate Co., 118 Ga. 502 (45 S. E. 308); Horton v. Smith, 115 Ga. 68 (41 S. E. 253); Charleston & W. C. Ry. Co. v. Miller, 113 Ga. 15 (38 S. E. 338); Baldwin v. Western Union Tel. Co., 93 Ga. 695 (2) (21 S. E. 212, 44 Am. St. R. 194).

Judgment affirmed on main bill of exceptions; cross-bill of exceptions dismissed.

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


text:
    8191.
    CALHOUN v. ARNOLD, administrator.
    A bail-trover action can not be amended by adding a new and distinct cause of action, the result of which would be to change the suit to an . equitable proceeding.
    Decided September 19, 1917.
    Trover; from Dooly superior court — Judge George. August 18, 1916.

      Powell & Lum,sden, W. H. Lasseier, for plaintiff in error.

      L. L. Woodward, Crum & Jones, contra.
   Bloodworth, J.

W. E. Arnold, as administrator of E. G. Arnold Jr., brought a bail-trover action against E. B. Calhoun, to recover a certain life-insurance policy issued by the American National Life Insurance Company to and on the life of E. G. Arnold Jr., and made payable to the estate of E. G. Arnold.- He alleged that demand for said policy had been made and refused, and prayed that he might “have judgment and decree against said E. B. Calhoun for the delivery of such insurance policy to him or his successors in office) or the value' thereof.” Plaintiff filed an amendment, portions of which were but amplifications of the allegations in his original petition — and in which he adhered to his original cause of action — and other portions of which sought to change the trover suit into an equity cause. The prayers of the amendment were: “(a) That said insurance policy be impounded, brought into court by the defendant, and that a receiver be appointed by the court to take possession of such insurance policy and enforce collection, thereof from the • insurer, before suit thereon is barred by the statute of limitations, or of the terms of the contract of insurance, and that the avails of such insurance policy be distributed to all lawful claimants therein by decree of the court in this case. (b) That thé rights of the plaintiff as administrator of the decedent, and of the heirs at law of said decedent, and of the defendant in such policy and avails thereof be ascertained by the court in this case, and that a decree of the court setting up such rights be made and entered upon a verdict of the jury in this case; and-that a final decree be entered, establishing all the rights of the parties therein in this case, (c) That the court, on the trial of this case, grant the petitioner such other and further relief, both legal and equitable, in the premises, as the facts of the case, under the law, allow. Petitioner will ever pray.” A demurrer was filed, in which it was alleged that the amendment set out a new and distinct cause of action, and the second ground of which was as follows: “Said original suit is an action founded upon a tort — that is, a trover action brought for the-recovery of a certain life-insurance policy, and can only be supported by proof of title, the sole question being whether the title to the policy is in the plaintiff or defendant, while the amendment undertakes to set up new and distinct equitable reasons why plaintiff should recover of defendant.” The court overruled the demurrer. In so far as this applied to that portion of the amendment which sought to convert the trover action into an action in equity, this was error. “A plaintiff can no more amend his -declaration for a legal cause of action by adding a new and distinct cause of action thereto, or new and distinct parties, under the pretext of an equitable proceeding, than he could amend his declaration for an equitable cause of action by adding a new and distinct cause of action, or new and distinct parties thereto, inasmuch as the law prohibits it in both eases.” Long v. Bullard, 59 Ga. 355, 358. See also Civil Code (1910), § 5683; McKenzie v. Loew Mfg. Co., ante, 33 (93 S. E. 504).

The court having erred in allowing the amendment, all other proceedings were nugatory, and the court erred in refusing a new trial.

Judgment reversed.

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


text:
    8394.
    Emanuel County v. Brinson.
    Decided September 19, 1917.
    Complaint (account for services of tax assessor); from Emanuel superior court — Judge Hardeman. July term, 1916.

      T. N. Brown, for plaintiff in error.

      Williams & Bradley, contra.
   Bloodworth, J.

No error was committed by the presiding judge in his rulings on the demurrers. The defendant introduced no evidence. The evidence for the plaintiff demanded a finding in his favor, and the court properly directed a verdict for plaintiff.

Judgment affirmed.

Broyles, P. J., and Jenhins, J., concur.


text:
    8318.
    Walker & Taylor v. Shannon.
    Decided September 19, 1917. •
    Action upon bond; from city court of.Reidsville — Judge Collins. December 6, 1916.

      E. 0. Beasley, for plaintiffs.
   Jenkins, J.

1. A judgment against an administrator, in an action on an alleged debt of his intestate, when the defendant has failed to plead a want of assets, is conclusive as to the question of a sufficiency of assets to pay the debt. As to a surety upon the administrator’s bond, however, the judgment is not conclusive upon such question, but is ■ prima facie evidence only; and when sued upon the bond the surety-may plead and prove a deficiency of assets in the hands of his principal liable to the payment of the debt. Gibson v. Robinson, 90 Ga. 756 (16 S. E. 969, 35 Am. St. R. 250) ; Whiddon v. Williams, 98 Ga. 310 (24 S. E. 437).

2. Thus, in a suit against the sureties on the bond of an administrator, prima facie proof of a devastavit may be made by introducing in evidence' the judgment against the administrator, and showing by proper entries upon the execution issued thereon that there is no property upon which to levy. Worthy v. Battle, 125 Ga. 415 (54 S. E. 667).

3. But where the judgment which is the foundation of the suit appears to have been obtained, not against the administrator, but against the decedent in his lifetime, against whom execution had issued, and where it appears that the first notice received by the administrator as to the claim was more than two years after his qualification as such, and nothing is shown to indicate that - the funds coming into his hands were not disbursed according to law, or that waste was committed,-- it was not error for the trial judge to grant a nonsuit.

Judgment affirmed.

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


text:
    8325.
    Dover v. Home Insurance Company.

      Judgment affirmed,.

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

    Decided September 19, 1917.
    Action upon fire-insurance policy; from city court'of Macon— Judge Guerry. November 3, 1916.

      Napier, Maynard & Plunlcett, for plaintiff.

      Hardeman, Jones, Parle & Johnston, Smith, Hammond & Smith, for defendant.
   Jenkins, J.

The explanation of the insured, by which he sought to avoid the effect of the issuance of an intermediary policy of fire insurance on the same property in another company without the consent of the defendant, was not tenable under the evidence, which justified the direction of a verdict for the defendant. Civil Code (1910), § 2489. The testimony of the plaintiff in his own behalf would not authorize a finding in his favor, since, when taken in its most unfavorable version, it required a finding against him. Southern Bank v. Goette, 108 Ga. 796 (33 S. E. 974).


text:
    8348.
    Taylor v. Young & Company et al.

    Decided September 19, 1917.
   Jenkins, J.

1. The issue in this case is made by virtue of a claim set up by way of recoupment by a real-estate agent for commissions earned in effecting an exchange of property. There was evidence to authorize •the jury to find that the husband of the plaintiff, the owner of the property, acting as her authorized agent, contracted on behalf of his principal for the payment of the commissions claimed, and that the exchange as effected was made in accordance with such agreement, and was brought about by the efforts of the real-estate agent.'

(a) While agency can not be established by the declarations or conduct of the alleged agent alone (Americus Oil Co. v. Gurr, 114 Ga. 624, 40 S. E. 780; Rood v. Hendrickson, 122 Ga. 795, 50 S. E. 994; Friese v. Simpson, 15 Ga. App. 786 (4 a), 795, 84 S. E. 219), still the fact of agency may be established by proof of circumstances and the apparent relations and conduct of the parties, including the declarations of the alleged principal. Cable Co. v. Walker, 127 Ga. 65 (56 S. E. 108). Thus the depositions of Eubanks, in which he testified to the declaration of the owner upon the question of Young’s, agency, while not of itself sufficient to fully establish agency as related to the transaction in controversy, was properly admitted for the consideration of the jury, along with other oral and documentary evidence upon this issue.

2. The grounds of the motion for a new trial not dealt with above are without merit, and the court did not err in overruling them.

Judgment affirmed.

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

Complaint; from city court of Cartersville — Judge Moon. November 8, 1916.

W. T. Townsend, W. W. Mundy, Mundy & Mundy, for plaintiff.

John T. Norris, for defendants.