text:
    8490.
    GOOD ROADS MACHINERY CO. v. NEAL & SON.
    1. “To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject-matter upon which it can operate.” Civil Code (1910), § 4222.
    2. In order for a contract of purchase to become effective when entered into by correspondence through the mails, the offer to buy must be accepted by the seller unequivocally, unconditionally, and without variance of any sort, so that the minds of the parties shall meet and assent to the same thing in the same sense. Robinson v. Weller, 81 Ga. 704 (8 S. E. 447). If the terms of purchase as executed by the buyer are varied, the seller is privileged to repudiate the contract in its entirety, but a ratification of a part of the executed contract so varied is a ratification of the whole, and the contract as so altered becomes binding in its entirety upon each of the parties thereto. Hunter v. Stembridge, 17 Ga. 243 (1), 247; Barclay V. HopTcims, 59 Ga. 562, 566; Howard v. Cassels, 105 Gd. 412, 418 (31 S. E. 562, 70 Am. St. R. 44).
    3. When it is possible to do so without contravening any rule of law, the courts will construe a contract as binding on both the parties, where, from the language of the contract, the conduct of the parties, and all the attendant circumstances, it appears that the intention of the parties was that both should be bound by the sale, and substantial justice requires that the contract be given effect. Civil Code (1910), § 4268 (3) ; Mill Wood & Coal Co. v. Flint River Cypress Co., 16 Ga. App. 636 (1), 637 (85 S. E. 943); Mutual Life Ins. Co. v. Durden, 9 Ca. App. 797 (3), 800 (72 S. E. 295).
    4. Under a contract of conditional sale, providing that if default should be made in payment the vendee is to return the property to the seller, the former has not the right to return the goods upon the condition being broken. Upon such default by the vendee the seller has an option to demand return of the property, and the vendee has a duty to deliver it upon demand. Finlay v. Ludden & Bates Southern Music House, 105 Ga. 264 (2) (31 S. E. 180).
    5. Where the contract involved is one that is covered by the statute of frauds, the complete contract, including an adequate description of the property purchased, must be in writing. But where the contract has been fully executed, the statute of frauds does not apply. Civil Code (1910), § 3222 (7). And where the terms of the sale are agreed upon and the bargain struck, and everything that the seller has to do with the goods is completed, the contract of sale becomes absolute and the property rests in the buyer. Wholesale Mercantile Co. v. Jachson, 2 Ga. App. 776, 782 (59 S. B. 106), quoting 2 Kent’s Com. 491. However-, the writing will itself furnish sufficient description of the property purchased, when it serves to separate it from the mass or gives such description as will render it capable of identification. Huntington v. Chisholm, 61 Ga. 270, 271. See also Thomas Furniture Go. V. T. & C. Furniture Go., 120 Ga. 879 (48 S. E. 333).
    Decided November 1, 1917.
    Complaint; from Fulton superior court — Judge Pendleton. January 9, 1917.
    This action was by the Good Eoads Machinery Company against a partnership composed of W. A. Neal Sr. and W. A. Neal Jr., and was based on a contract for the purchase of machinery, evidenced, by four letters embodied in plaintiff’s petition. .An oral motion by defendants to dismiss the action, on the ground that no cause of action was set forth, was granted. This order of dismissal is the error- complained of. The letters referred to are as follows:
    “128 Marietta St., Atlanta, Ga., Jan. 24, 1911. “The Good Eoads Machinery Co., Kennett Square, Pa.
    “In Ee St. Lucie County, Fla., Claim. • -
    “Gentlemen: We have Mr. Phillips’ letter of December 27th, in reference to above claim. We have been delaying answering this letter, hoping that we would be able to have a personal conference with the Port Huron people, and in this way get them to make some concession toward taking the machinery back. We have not been favored with this conference up to this time, and we do not believe now "that any gopd would come from the conference anyway, for the reason that the Port Huron people are reorganizing their company, having replaced Mr. Peavy, former general manager, with a new man, and we don’t believe we would be able to reach the Port Huron people.upon any proposition whatever looking to the taking back of the machinery and allowing anything for it.
    “We also have Mr. Phillips’ letter of 20th inst., the latter part of which refers to the St. Lucie County notes. You ask that we return the warrants to your office, and that you will have them looked after by your collector and at our expense. Of course we can and will return the notes whenever you say so, but ask that you give us another opportunity to see what can be done toward settling the matter ourselves. We are sure that we can get it adjusted much better than you can. We are making an appointment with these people for February 15th, and are writing them by this mail for a full meeting of the board.
    “Now, the proposition that we want to make to you and to the St. Lucie County people is this: We will be forced to make these people some kind of a concession. They will not pay the whole amount unless we help them dispose of the machinery in some way, as they consider the machinery absolutely worthless; and we must say, from their inability to manage this kind of machinery, we fully agree that it is absolutely worthless to them. However, we built one half mile of road with it, and did it well, but they are not able to handle it as we did.
    “Now, we believe we can get, these people to pay the full amount of your claim, which is covered by three warrants, by allowing them $2,000.00 for the machinery and taking it back; and if you will consent to this, we will take the machinery at $2,000.00 and pay you 6% interest on same from time we make settlement with them. We will ship the machinery to Atlanta, repaint and overhaul it and put it in our warehouse, and will guarantee to pay you the $2,000.00 within 12 months, with 6% interest; and if we fail to do this, we will turn the machinery over to you. It is going to cost us at least $500.00 to load the machinery and deliver it in Atlanta, besides $200.00 or $300.00 to overhaul it and put it in good condition to be sold; the machinery to be your property until you receive the $2,000.00 from us.
    “Now, we believe that we can make this settlement with these people; and if you agree with us and are willing to accept this proposition, kindly mail us the other warrant, and we will meet the board on February 15th and endeavor to get the whole matter in shape. “Yours truly, W. A. Neal & Son, per W. A. Neal.”
    “Kennett Square, Pa., Jan. 27, 1911. “W. A. Neal & Son, Atlanta, Ga.
    “Ee St. Lucie, Florida, Claim.
    “Gentlemen: Replying to your favor of the 24th, are we to understand from what you have written that the Port Huron Company will not stand behind their guarantee? Is there any reason that you know of why we should suffer loss by reason of your taking back any part of the St. Lucie County machinery that we were not interested in the manufacture of? We understood that the Port Huron people were reorganizing their business, but we have not heard why they are replacing Mr. Peavy with another manager, and will be much interested in having you advise us why they seem to think it necessary to replace Mr. Peavy.
    “I am sure that you can adjust the St. Lucie County matter much better than we, and wish to say that the only reason I ask for the return of the St. Lucie County warrants is because they have been in your possession since October, 1910, more than three months, and we have not as yet any kind of a settlement.
    “If you can make a settlement with the St. Lucie County people on the basis outlined in your letter and get them to pay the •full amount of our claim covered by the three warrants, one for. $2180.00 that was due April 19th, 1909, one for $2300.00 that was due April 19th, 1910, and one for $2420.00 that will be due April 19th, 1911, less $2000.00 for the machinery, and if you will take the machinery ato$2000.00 and pay us interest on the same from the date you make settlement with them, and the St. Lucie County people will pay interest on the overdue warrants from the date they were due until the date you secure settlement of them, that will be satisfactory to us; but this matter must be closed up soon.
    “We are willing to have you make settlement with the St. Lucie County people on the basis of the contents of your letter to us.
    “Awaiting your further valued favors and reports on this important subject, we are yours very truly, The Good Roads Machinery Co. Per S. Jones Phillips, President.”

      “128 Marietta St., Atlanta, Ga., Feb. 22, 1911.
    “The Good Eoads Machinery .Co., Kennett Square, Pa.
    “In Ee St. Lucie County, Fla., Claim.
    “Gentlemen: Enclosed you have N. Y. exchange for $2480.00 in settlement for two warrants which we had in our possession, given By St. Lucie County, one for $2180.00, due April .19th, 19th, 1909, and the other for $2300.00 due April 19th, 1910. This N. Y. exchange covers-these two warrants, less $2000.00 which we allowed them for the machinery, as per your recent letters. We did our best to get these people to pay us interest on these warrants. The $2180.00 warrant had 10 months’ interest due, and the $2300.00 warrant had 20 months’ interest due, but their attorney advised them that under the law they could not pay any interest on the warrants. They were willing to pay it, but the attorney would not let them do so. The other warrant, which is due April 19th, 1911, they will renew when it becomes due by giving you a warrant due one year after date and adding interest to the face of the warrant. This, the attorney said, they could do, but they could not give us the interest on the warrants which were past due. We told them if they would not give us interest on the warrant which was not due, that they would simply have to pay the cash when the warrant is due. They finally agreed to add the interest to the face of warrant, and made this a part of their records and placed it on their minutes. You will, therefore, please forward to C. H. Edwards, Chairman, Fort Pierce, Fla., the warrant not due, and he will issue you a time warrant due April 19th, 1912, with interest at rate of 6% from maturity for one year added to the face of the warrant,’which makes the new warrant $2565.20.
    “We had a hard fight with these people to get this business settled up without a lawsuit, and we had to take the machinery at $2,000.00 and go to the expense of loading it, which is going to cost us between $400.00 and $500.00. It is in the country, away from the railroad, is in bad shape; labor is scarce and hard to get at any price; but rather than have a lawsuit we agreed to accept the machinery; and in carrying out agreement with you, we will load it ourselves and pay you $2,000.00 within 12 months, and try to handle it as best we can. • We thought it best to do this than to be forever attending board meetings, courts, etc., as we would lose more time and money attending these meetings than it would cost us to load, manipulate, and sell the second-hand stuff.

      “We trust the settlement is entirely satisfactory.
    “Tours truly, W. A. Neal & Son, per W. A. Neal.” .
    “Kennett Square, Pa., Feb. 27, ,1911.,

      “W. A. Neal & Son, Atlanta, Ga., Ee Note No. 14284.
    “Gentlemen: Eeplying to your favor of the 22nd inst., we acknowledge with thanks the receipt of the New York draft for $2480.00, which amount we are passing to the credit of the proper account.
    “We have secured from the present holder and owner possession of the St. Lucie County warrant, our No. 14284, which calls for the payment of $2420.00 and' which is due April 19th. We do not know from the contents of your letter whether to send this warrant to Mr. Edwards at once or not until about April 19th, 1911, when it is due. How would it do for us to write him a letter and ask him to send us a warrant for $2565.20, and ón receipt of which we will promise to turn the same over to the present owner of warrant No. 14284 and cancel our indorsement on the same and send it to him? I think we will write Mr. Edwards a line about the matter, and then we will be governed in our actions by what he may say in reply to our letter. We will either arrange to send him this warrant upon Teceipt of request to do so, or upon receipt of a new warrant, whichever he may advise.
    “We think this action on our part will be acceptable and satisfactory to you.
    “Yours very truly, The Good Eoads Machinery Co., per S. Jones Phillips, President.”
    ' P. B. D’Orr, for plaintiff.

      B. V. Carter, Frank Carter, B. V. Carter Jr., for defendants.
   Jenkins, J.

(After stating the foregoing facts.) Applying the law as stated- in the foregoing headnotes, .we 'think the correspondence set forth in the, petition contained all the essentials of a valid contract. Counsel for the defendants insist that the plaintiff, in accepting the check for $2480 and placing that amount to the proper account as stated in their letter, merely ratified the acts of defendants as their collecting agents in the settlement had with St. Lucie County, and did not thereby do any act which could be taken to ratify a purchase of the machinery by the defendants. We think that when the defendants in the first of the letters, dated January 24th, proposed that the claim of the plaintiff against St. Lucie County should be settled by its collection in full on the basis of allowing a credit to the county of $2,000 for the machinery, with the understanding that the machinery was to be taken over by defendants at that price, and in reply to that letter the plaintiff stated, “We are willing to have you make settlement with the St. Lucie County people on the basis of the contents of your letter to us,” this correspondence covered the entire proposition, notwithstanding the fact that the plaintiff may have amplified its acceptance by stating that interest on the St. Lucie County overdue warrants should be included in the settlement; and when, on February 22d, the defendants again wrote to the plaintiff, enclosing a check for the warrants in accordance with the terms of the agreement, except that no interest thereon had been collected or was included, which omission the defendants explained in this letter, and at the same time notified the plaintiff that they had taken over the machinery at the price agreed on in the previous letter, and promised to pay therefor, if any alteration was made in the execution of the original contract, the plaintiff, by accepting the payment made under the statement given, ratified and confirmed the altered terms of the agreement as -executed. The basis of the understanding whereby the plaintiff agreed to allow St. Lucie County a credit of $2,000 for the machinery was that the defendants should take it over at that price; and when the defendants executed the proposed settlement and took in the machinery for themselves as indicated by their letter, forwarding the amount due under the warrants, less the allowance made for the machinery, the plaintiff by accepting that amount ratified the omission of any interest provided for by the original contract, to which its attention was then called. We also think that the property was sufficiently identified when described as the machinery sold to St. Lucie County, Florida. Especially is this true when it appears from the defendants’ letter of February 22d that they had actually taken possession of the same. - It appearing to us, from the language of the contract, the conduct of .the parties as indicated by the letters, and all the attendant circumstances, that it was the intention of each of the parties to be bound by the sale, and, in' our opinion no rule of law contravening, we think effect should be given to the agreement; and we therefore differ with the learned trial judge in his holding that the petition failed to set forth a cause of action.

Judgment reversed.

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


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
    8525.
    Johnson v. Johnson.
    Decided November 1, 1917.
    Complaint; from city court of Baxley — Judge Sellers. December 30, 1916.

      Padgett & Watson, for plaintiff. W. W. Bennett, for defendant.
   Jenkins, J.

1. A decision on the first writ of error is binding as the law of the case on a second writ of error.. Gray v. Conyers, 70 Ga. 349; King v. Davidson, 72 Ga. 192; Saulsbury v. Iverson, 73 Ga. 733; Western & Atlantic R. Co. v. Third National Bank, 125 Ga. 489 (54 S. E. 621); Southern Bell Tel. Co. v. Glawson, 140 Ga. 507 (79 S. E. 136).

2. The law of this particular case having been fixed and determined in its formet adjudication by this court (Johnson v. Johnson, 14 Ga. App. 194, 80 S. E. 660), the overruling of the plaintiff’s motion for a new trial was not erroneous.

Judgment affirmed.

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


author: Luke, J.

text:
    8531.
    Planters Fertilizer Company v. Smith.
    Decided November 1, 1917.
    Certiorari;-, from Bibb superior court — Judge Mathews. February 9,, 1917.

      Hardeman, J oves, Park & Johnston, Harry S. Strozier, for plaintiff in error. Walter DeFore, James O. Estes, contra.
   Luke, J.

1. The making of an oral motion for a new trial in the municipal court of the city of Macon, as provided for by the act of 1913 (Georgia Laws, 1913, p. 252), is a cumulative remedy, and does not defeat the right of certiorari. Johnson v. James, 19 Ga. App. 118 (91 S. E. 220).

2. Eor none of the reasons assigned was it proper to dismiss the writ of certiorari without hearing the merits of the same as shown by the petition and the answer.

Judgment reversed.

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


text:
    8537.
    Benton et al. v. Harley.
    Decided November 1, 1917.
    Trover; from Toombs superior court — Judge Hardeman. January .31, 1917.

      H. H. Elders, Hines & Jordan, for plaintiffs in error.

      Giles & Sharpe, contra;
   Jenkins, J.

1. The proof submitted was sufficiently definite and certain to enable the jury to arrive at the amount of the verdict rendered.

2. In a trover suit for the recovery of property the title to which the plaintiff holds as security for a debt, the measure of damages, where plaintiff elects to take a money verdict, is either the highest proved value of the property between the date of conversion and the trial, or the value of the property at the date of conversion, with interest or. hire thereon, subject, however, to the condition that under neither choice can a recovery be had for more than the amount of the debt for which the property stands as security. Elder v. Woodruff Hardware Co., 9 Ga. App. 484 (71 S. E. 806); Tuller v. Carter, 59 Ga. 395 (2).; Mashburn V. Dannenberg Co., 117 Ga. 567 (15) (44 S. E. 97); O’Neill Manufacturing Co. v. Woodley, 118 Ga. 114 (44 S. E. 980); Young v. Durham, 15 Ga. App. 678 (84 S. E. 165); Moore v. Furstenwerth-Uhl Jewelry co., 17 Ga. App. 670 (87 S. E. 1097) ; Way v. Bailey, 18 Ga. App. 57 (88 S. E. 799). We think the reasonable intendment of the portion of the charge complained of in the first and second grounds of the amendment to the motion for a new trial limited the jury to a finding within the amount of the debt; and as it is not made to appear that the verdict found exceeds the amount thereof, the exception taken to this portion of the charge is overruled:

3. The record does not afford a basis for the argument of counsel for the plaintiff in error in reference to the third ground of the amendment to the motion for a new trial. But if in the portion of the charge here referred to the judge in fact used the word “defendant” instead of “plaintiff,” we think the jury must necessarily have understood, from the entire charge, the context, and the sense in which it was used, what was really intended, and could not have been thereby misled or confused. The remaining ground of the motion for a new trial is without merit.

Judgment affirmed.

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


author: Ltjke, J.

text:
    8565.
    Washington v. Cotton States Seed & Fertilizer Co.
   Ltjke, J.

1. The plaintiff brought an action alleging that he had been damaged by the negligence of the defendant in not providing for him a safe place to work, and in not warning, him of the danger incident to the work he was required to do. The jury upon the trial returned .a verdict in favor of the defendant. The evidence authorized the verdict.

Decided November 1, 1917.

Action for damages; from city court of Macon — Judge Guerry. January 31, 1917.

Martin & Martin, for plaintiff.

Hall & Grice, Charles J. Bloch, for defendant.

8. When read as a whole, the charge of the court was full and fair, and was not error for any of the reasons assigned. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    8582.
    Simerly v. Brooks.
    Decided November 1, 1917.
    ' Certiorari; from Muscogee superior court — Judge Howard. February 27, 1917.

      W. H. McCrory, for plaintiff. Ed Wohlwender, for defendant.
   Luke, J.

1. A surety upon a bond dissolving a garnishment may by affidavit of illegality successfully attack the judgment rendered against him as such surety, by alleging and proving that it was rendered without the introduction of the judgment against the garnishee. Smith v. Kennedy, 125 Ga. 830 (54 S. E. 731).

2. Before judgment can be rendered upon a bond dissolving a garnishment, two prior judgments must have been rendered, — first, a judgment in the main action; and second, a judgment declaring the money or property subject. National Surety Co. v. Medlock, 2 Ga. App. 669 (58 S. E. 1131); Middleton v. Johnson, 19 Ga. App. 478 (91 S. E. 785). Upon the petition and the answer it was not error for the court to sustain the certiorari.

Judgment affirmed.

Wade, C. J., and Jenlcins, J., concur.


text:
    8689.
    Smith v. Brinson.
    Decided November 1, 1917.
   Luke, J.

1. Where the relation of landlord and cropper exists, and before the landlord has received his part of the crops so raised and is fully paid for all advances made to the cropper in aid of making the crops, possessory warrant will lie, under the Civil Code (1910), § 3706, for the recovery of such crops as it is shown the cropper seeks to exclude from the possession of the landlord. '

2. Upon the petition and the answer it was not error for the.court to overrule the certiorari.

Judgment affirmed.

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

Certiorari; from Grady superior court — Judge Harrell. March 14, 1917.

L. W. Rigsby, for plaintiff in error.

M. L. Ledford, Claude Christopher, contra.


text:
    8698.
    Jones v. Georgia Fertilizer & Manufacturing Co.
    Decided November 1, 1917.
    Appeal-; from Grady superior court — Judge Won-ill presiding. March 5,1917.

      Ira Carlisle, for plaintiff in error.

      M. L. Ledford, Claude Christopher, contra.
   Luke, J.

1. The defendant pleaded, to a suit in a justice court upon a note, “that the note sued on is void, because the defendant has not received anything whatever from the Georgia Fertilizer and Manufacturing Company for which said note was given. Defendant further says that he has no recollection of signing said note, but that if he did sign same that there was a mistake on his part in signing said note, as he did not at that time nor up to this time owe the said fertilizer company anything; therefore the same is a naked promise and of no value, as there was no consideration moving to defendant for which said note could have been given for.” The plea was properly verified. After appeal to the superior court the plaintiff orally moved to strike the plea, and the court sustained the motion. Held’, that the plea, as a ' plea of want of consideration, was good as against a general demurrer. Mackin v. Blalock, 133 Ga. 550 (66 S. E. 265, 134 Am. St. R. 220). The court therefore erred in sustaining the oral motion to strike the plea.

Judgment reversed.

Wade, O. J., and Jenkins, J., concur.


author: Wade, C. J.

text:
    8705.
    JAMES v. BETTIS.
    1. It was not error to admit in evidence a paper purporting to be a bill of sale from one Scott to the plaintiff, over objection that it appeared to have been recorded but not to have been acknowledged before a notary public; there being testimony that Scott signed it, and he as a witness admitting that he so signed.
    2. The trial judge did not abuse his discretion in continuing the trial of the case for one day.
    3. Other assignments of error appear to have been abandoned. It was not error to overrule the certiorari.
    Decided November 1, 1917.

      Certiorari; from Fulton superior court — Judge Ellis. January 16, 1917.

      John Y. Smith, for plaintiff in error. M. Herzberg, contra.
   Wade, C. J.

1. The plaintiff in error complains that the trial judge erred in not sustaining his objection to the admission of a paper purporting to be a bill of sale from Scott to Bettis; the objection being that the paper appeared to be a recorded instrument, and that it Fad not been acknowledged before a notary public. In view of testimony from a certain witness that Scott actually signed said paper, and of the fact that Scott himself admitted that he signed it, the court did not err in admitting it in evidence. Civil Code, § 5833 (5). See also Dawson v. Callaway, 18 Ga. 573 (3), 580; Ford v. Parker, 131 Ga. 443 (63 S. E. 536); Christie v. Shingler, 10 Ga. App. 529 (73 S. E. 751); White v. Sailors, 17 Ga. App. 550 (3), 554 (87 S. E. 831).

3. Complaint is made that the-court erred in continuing'the case until the following day, of its own motion and over defendant’s objection. The respondent’s untraversed answer to the writ of certiorari makes the following clear and succinct statement in regard to the continuance: “After plaintiff and his witnesses and the defendant and his witnesses had testified, there was a sharp conflict of facts, the plaintiff contending that he had bought this property from W. B. Scott, and the defendant contending that he had bought from Mann, who had bought from Scott; and it was clear to my mind that the evidence of Scott would throw material light on the issue. I therefore continued the case, and directed that Scott be subpoenaed. He appeared and was sworn as a witness, without objection by either party.” Considered in the light of these facts, the court did not, by continuing the case until the following day, abuse the wide discretion vested in him by the terms of section 5734 of the Civil Code of 1910, viz.: “All applications for continuances are addressed to the sound legal discretion of the court, and, if not expressly provided for, shall be granted or refused, as the ends of justice may require.”

3.. The plaintiff in error abandons the remaining grounds of the petition for certiorari by failing to insist upon them in his brief; and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    8740.
    Thomas v. Chattanooga Railway & Light Company.
    Decided November 1, 1917.
    Action for damages; from Catoosa superior court — Judge Tarver. February 5, 1917.

      W. E. Mann, M. L. Harris, for plaintiff.

      W. H. Payne, for defendant.
   Wade, C. J.

1. Under the facts as pleaded, ho recovery would have been authorized on account of the alleged acts of negligence; and hence the original declaration in attachment was subject to the general demurrer.

2. In addition to the general demurrer there were several special grounds • of. demurrer to the declaration in attachment; upon the presentation of . which counsel for the plaintiff stated “that he would amend to meet the special demurrers.” The court inquired if the amendment was-ready, and counsel answered that it was not, but that he would prepare it; whereupon the court responded by saying, “I will sustain the demurrer,” and immediately entered up judgment, sustaining the demurrer on each and every ground thereof, and dismissed the declaration.

(а) The demurrer was filed on the day the judgment sustaining it was entered, but it does not appear, from any recital in the bill of exceptions, that counsel for the plaintiff did not have a sufficient opportunity to prepare any necessary amendment after knowledge that the demurrer had been filed and before it was brought to the attention of the court and insisted upon in argument; and hence this court can not say that the trial judge abused the' discretion vested in him, or infringed upon the rights of the plaintiff in declining -to allow further time in which to prepare such amendment.

(б) Aside-from the ruling above, it does not appear, from any recital in the bill of exceptions, that the. trial court knew, from any oral or written presentation thereof at the time, what precise amendments were proposed; and hence it would be impossible for this court to determine whether such amendments would have so far removed the defects in the original declaration, printed out by the demurrer, as finally to set forth a cause of action. Gibson v. Gross, 143 Ga. 104 (3) (84 S. E. 373); Douglass v. Williams Art Co., 143 Ga. 846, 848 (85 S. E. 993); Wall v. Seaboard Air-Line Railway, 18 Ga. App. 457 (6) (89 S. E. 533); Bryant v. Bank of Covington, 18 Ga. App. 526 (2) (89 S. E. 1049).

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    8779.
    Smith v. City of Atlanta.
   Luke, J.

The plaintiff’s petition alleges substantially' that he was walking -along the sidewalk on Marietta street in Atlanta; that when lie-reached a certain place on the sidewalk where the sidewalk is crossed by a private driveway, which driveway was built of cement and sloped from the building to the street, his foot slipped from under him and he fell, sustaining injuries; and that the defendant city was negligent: (a) “In allowing said driveway to be constructed as above described in the sidewalk. (b) In having a driveway in the sidewalk with such a sharp curve as to make an unsafe and dangerous walkway for pedestrains within the sidewalk limits, (e) In allowing said driveway to be, constructed of improper materials, so that the curved surface of said driveway within the sidewalk limits became and remained so slippery as to be dangerous for pedestrians, (d) In maintaining the said driveway in the sidewalk after knowledge or reasonable opportunity and the lapse of reasonable time from acquiring knowledge of the defective and dangerous condition of the sidewalk.” The defendant demurred to the petition, upon the grounds: (a) “No cause of action is therein set out. (b) It does not appear 'that there was any negligence in the construction of the sidewalk, under the allegations of said petition, (c) The construction therein alleged is' not negligent nor are the grounds of negligence therein alleged legal.” The court-sustained the general de-, murrer, and the plaintiff excepted. Held, that the petition did not set forth a cause of action, and it was not error to sustain the demurrer. City Council of Augusta v. Little, 115 Ga. 125 (41 S. E. 238).

Decided November 1, 1917.

Action for damages; from city court of Atlanta — Judge Reid. March 14, 1917.

A. H. Davis, for plaintiff.

J. L. May son, S. D. Hewlett, for defendant.

Judgment affirmed.

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


text:
    8782.
    Trammell v. Griffith Implement Company.
    Decided November 1, 1917.
    Cértiorari; from Fulton superior court — -Judge Bell. March 24, 1917.

      McClelland & McClelland, for plaintiff in error.

      Troutman & Troutman, contra.
   Luke, J.

Upon the petition for certiorari and the answer thereto, it was not error to overrule the certiorari.

Judgment affirmed.

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


text:
    8820.
    KENDRICK v. BUREAU OF NATIONAL LITERATURE, INC.
    The petition for certiorari and the answer showing that the defendant admitted buying. and receiving the books for the price of which the suit was brought, signing the contract of purchase, and failing to pay as contracted, it was not error to sustain the certiorari after judgment in favor of the defendant in the trial court.
    Decided November 1, 1917.
    Certiorari; from Fulton, superior court — Judge Bell. March 23, 1917.

      J. M. Sunt, for plaintiff in error. A. L. Richards, contra.
   Luke, J.

The Bureau of National Literature, Incorporated, sued Kendrick, in the municipal court of Atlanta, for the price of books sold under the following written agreement-:

"Please deliver to any common carrier, addressed to me, one set of the 'Messages and Papers of the Presidents,’ printed from Government Plates, authorized by Act of Congress (H. R. Bill No. 16, Fifty-Fifth Congress), to which have been added, by private enterprise, the McKinley-Roosevelt-Taft-Wilson Messages and Papers to 1915, Encyclopedic-Index,' Tintogravures and Duotones of the Presidents, Public Buildings, Historical Paintings, etc., text printed on specially made and .water-marked Bangalore paper, bound in full black leather, side -and back stamped in gold, end sheets of highly calendared paper; printed in two colors from copper • etchings specially designed and copyrighted, all in twenty volumes; for which I agree to pay you $79.50 and the cost of transportation. I acknowledge a full understanding that in making this purchase I am not in any way dealing with the -Government, or any representative thereof, but with you, a private corporation; that no Government official has any direction of, or authority in, this distribution; that the. present distribution is limited only by the life of the plates made by the Government, and that this order is not subject to cancellation, nor conditioned on any representation or agreement not printed or written hereon. It is understood that I shall have the privilege of purchasing supplemental volumes, when notified of publication, at $4.00 per volume, and that my registration number on set certificate is only for convenience in making requisition for same. I have read, and fully understand the terms and conditions herein. D. B. Kendrick.”

The defendant contended that certain representations contrary .to the terms of the agreement were made by the representative of the plaintiff. The trial judge, sitting Without a jury, rendered judgment in favor of the defendant. The petition of the plaintiff for certiorari and the answer thereto showing that the defendant admitted buying and' receiving the books, signing the contract, and failing to pay therefor, it was not error for the judge of the superior court to sustain the certiorari.

Judgment affirmed.

Wade, G. J., and Jenkins, J., eoncur.


text:
    8908.
    Arline v. Pearson.
   Luke, J.

The plaintiff’s petition makes substantially the following case: that Pearson, secretary and treasurer of the Grangerville Turpentine Company in 1914 owned considerable stock in .the corporation; that he listed with the plaintiff the holdings of the corporation, consisting of several hundred acres of timbered land; that as a real estate broker the plaintiff advertised the land for sale, and among the prospective purchasers was one McMichael, to whom the corporation granted a 60-day option to purchase the property for $79,000; that in order to assist McMichael to exercise this option it became necessary for him to negotiate a loan; and, in order to negotiate the loan, it was necessary to dispose of the timber rights in such manner that the party from whom the money was borrowed might be assured that a certain amount would be realized from the timber; that in order to assist McMichael in borrowing the money, the plaintiff caused one McKinnon tp investigate the property; that after the negotiation had been pending for some time the plaintiff and Pearson had a conversation and discussed the possibility of selling “the entire proposition” to McKinnon; that Pearson • stated that if McKinnon bought the property and would only give $50,000 for it, the plaintiff’s commission would have to be reduced from 5% to 3%; that the plaintiff then suggested that the price of the property be fixed at $51,500, in order that he might receive his. full commission, and Pearson assented to this arrangement; that, relying upon said agreement and reposing confidence and trust in Pearson, he, in May, 1916, telephoned to Pearson that the chances of McMichael’s compliance with the terms of the option were not good, and advised him to proceed with the sale to McKinnon; whereupon he stated that the stockholders of the Grangerville Turpentine Company would not accept less than $50,000 net to them, but agreed to hold the property at $51,500, in order that the plaintiff might secure as his compensation $1,500; that on the same day Pearson wrote to the; plaintiff, withdrawing the property from his hands, for the purpose of preventing him from receiving any compensation; that in June, 1916, the stockholders of the G-rangerville Turpentine Company sold to McKinnon practically the entire stock of the corporation; that Pearson sold to McKinnon 95 shares of stock in the corporation at- $300 per share; that the “petitioner shows that by the above deceptive means and fraudulent practice the said- H. W. Pearson secured petitioner’s services in disposing of his property and enriching himself, and now fails and refuses to pay petitioner any sum whatever for such services. Petitioner further shows that the said H. W. Pearson is indebted to him by reason of the above-stated facts in the sum of $1,500, this being the amount finally agreed upon between s'aid Pearson and petitioner, after haying failed to. protect him in the collection of the full 5%, the said H. W. Pearson having .agreed with petitioner to protect him in the sum, and having failed to do so, in violation of the trust and confidence imposed in him by petitioner and in violation of his agreement to do so.” The defendant demurred generally and specially. Eeld, that the petition did not set forth a cause of action, and it was not error to sustain the demurrer and dismiss the suit.

Decided November 1, 1917.

Complaint; from Wayne superior court — Judge Highsmith. April 19, 1917.

H. P. Gobb, Gibbs & Turner, for plaintiff.

James B. Thomas, for defendant.

Judgment affirmed.

Wade, O. J., and Jenkins, J., concur.


text:
    8916.
    Albright v. Summerlin.
    Decided November 1, 1917.
    Distraint; from Haralson superior court — Judge Bartlett. April 10, 1917.

      H. G. Hutchens, J. B. Hutchens, I. N. Cheney, for.plaintiff in error. Griffith' & Matthews, Smith & Moore, contra.
   Luke, J.

The charge of the court was full and fair, and the evidence authorized the verdict. It was not error to overrule the motion for a new trial.

Judgment affirmed.

Wade, G. J., and Jenkins, J., concur.-


author: Bloodworth, J.

text:
    8430.
    CARTER v. BRIGGS.
    The court erred in not sustaining the demurrer on the ground that the superior court of Lowndes county had no jurisdiction, and in directing a verdict for the plaintiff.
    Decided November 1. —
    Rehearing denied November 17, 1917.

      Complaint; from Lowndes superior court — Judge Patterson presiding. November 18, 1915.

      Ban B. Bruce, for plaintiff in error.

      Woodward & Smith, contra.
   Bloodworth, J.

Mrs. Julia L. Briggs brought suit in the superior court of Lowndes county against C. C. Carter, a resident of Echols county, and S. S. Carter, a resident of Lowndes county, in which she alleged that she was the owner of and claimed title to a certain tract of land in Lowndes county, and that said C. C. Carter and S. S. Carter were in possession of said land, enjoying the rents and profits thereof, amounting to $200 per annum. She further alleged that she claimed title to said land from J. T. Brown, by warranty deed; that defendants also claimed title under, the said J. T. Brown; that the title of defendants is invalid as against petitioner, and that defendants’ claim arose as follows: that the said J. T. Brown agreed to sell C. C. Carter the land in controversy for $1,500, part payable in cash and balance on credit; that bond for title was given by said J. T. Brown to said C. C. Carter, conditioned to' convey to the said C. C. Carter the land upon payment of the full' purchase-price thereof; that when said bond for title was given and'notes executed in accordance therewith, the said Brown admitted the said Carter into possession of said land; that after said C. C. Carter had paid all of the purchase-price of said land except a note for $900, with interest and attorney’s fees, petitioner purchased said note, which was indorsed and transferred to her by the said J. T. Brown; that she made demand for payment of the note upon said C. C. Carter, and that said S. S. Carter was a tenant of said C. C. Carter, and, as said tenant, was in possession of the land. The prayers of the petition were as follows: “(a) That the legal title to said land be found to be in petitioner, as security for the note executed by the said C. C. Carter as aforesaid, and that the amount due thereon be ascertained and declared. (b) That the court do adjudge and decree that the land be sold, and that the proceeds be applied as follows: first to the payment of the cost of this proceeding and of the sale, then to the payment of said note, principal, interest, and attorney’s fees, and that the remainder of the proceeds, if any, be paid to the said C. C. Carter or his order.”

C. C. Carter filed a demurrer to the petition, on several grounds, one of which was as follows: “This defendant demurs to and ■moves to dismiss plaintiff’s petition, because it seeks relief cognizable only in a court of equity, and, there being no substantial relief prayed as against S. S. Carter, this court is without jurisdiction to entertain said petition and to grant plaintiff the relief prayed for, but that Echols superior court is the proper court, and the only court that has jurisdiction either of the subject-matter of plaintiff’s cause of action, if any-she has, or of this defendant.” The court overruled this and other grounds of the demurrer, and the case proceeded to trial, and resulted in a verdict, directed by the court, which is as follows: “We, the jury, find the issues in said case for the plaintiff against the defendants in said ease. We further find the legal title to the land sued for to be in the plaintiff as security for the debt therein set out. We further find the amount due on said note to be the sum of nine hundred dollars principal, two hundred and seven dollars interest to judgment. We further find that said property he sold as prayed. This Nov. 18, 1915. J. B. Martin, foreman.” Upon this verdict a decree was entered, and the defendant, carried the case to the Supreme Court by writ of error. On'December 15, 1916, the Supreme Court issued a rule nisi, calling- upon counsel in this and other cases to “show cause before this court, in writing, on or before Wednesday, December 27, 1916, at 9 o’clock a. m., why such cases should not be transferred to the Court of Appeals. If no sufficient cause to the contrary is shown within the time herein limited, all such eases are hereby transferred to that court as of December 27, 1916.” To this rule nisi the plaintiff in error made answer in part as follows: “1st. That the same is an equity cause; for which reason the Supreme Court has exclusive jurisdiction thereof. 2d. That the same is a suit respecting titles to land; for which reason the Supreme Court has exclusive jurisdiction thereof.” The Supreme Court took this answer under advisement, overruled it, and, by order dated January 27, 1917, transferred the case to this court.

.1. The effect of the ruling of the Supreme Court.is that this is not an equity cause, nor 'a suit respecting title to land:

2. The only other construction that can be put upon the petition is that it is a suit on the note for the balance of the purchase-price of the land.

3. As C. C. Carter, the only person who signed the note, is shown by the record to be a resident of Echols county, the superior court of Lowndes county has no jurisdiction in this case, and the ground of the demurrer which set up lack of jurisdiction should have been sustained. This error rendered all subsequent proceedings nugatory; and the court erred in directing a verdict for the plaintiff..

Judgment reversed.

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


text:
    8431.
    CARTER v. BRIGGS.
    The court erred in not sustaining the demurrer on the ground that the superior court of Lowndes county" had no jurisdiction, and in directing a verdict for the plaintiff.
    Decided November 1 —
    Rehearing denied November 17, 1917.
    Complaint; from Lowndes superior court — Judge Patterson presiding. November 18, 1915.

      Dan B. Bruce, for plaintiff in error.

      Woodward & Smith, contra.
   Bloodworth, J.

The defendant in this case was sued jointly with C. C. Carter, defendant in .the ease of Carter v. Briggs, No. 8430, ante, 176. Separate bills of exceptions were sued out. The decision in that case controls this; the only difference in.the two cases being that the defendant in thi-s case did not sign the note which was the basis of the suit, and his demurrer to the petition was in part as follows: “That there is no relief prayed as against this defendant, and he is therefore no proper or necessary party to plaintiff’s cause of action, if any there be set out in her petition; and this defendant not being a proper'or necessary party to plaintiff’s cause of action, this court is without jurisdiction to entertain the same; but that Echols superior court is the proper court and the only court that has jurisdiction of plaintiff’s cause of action, if ány she has; that there is no relief prayed as against this defendant, and he is not a proper of necessary party to plaintiff’s cause of action, if any she has; and it being such an equitable cause of action, the .same should be filed in Echols superior court, the county of the defendant against whom substantial relief is prayed, and this court has no jurisdiction of either the subject-matter of plaintiff’s 'cause of action, if any she has, neither has this court any jurisdiction of the defendant against whom substantial relief is prayed in said petition.”

Under the ruling in the case referred to above, the demurrer to the petition on the ground that the superior court of Lowndes county had no jurisdiction in this case, should have been sustained. This error made the subsequent proceedings nugatory; and the court erred in directing a, verdict for the plaintiff.

Judgment reversed.

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


text:
    8469.
    Parks v. Stevens.
    Decided November 1, 1917.
    Complaint; from city court of Hall county — Judge Wheeler. January 6, 1917.

      W. M. Johnson, for plaintiff in error. J. G. Collins, contra.
   Bloodworth, J.

“It may be now considered as settled that this court will not, under any circumstances, reverse a judgment granting a first new trial, whether the grant be general upon all the grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involves questions of evidence or upon a ground which involves purely questions of law; unless it is made to appear that no other verdict than the one rendered could possibly have been returned under the law and facts of the case. Unless the case can be brought within the exception just stated, .it is useless for parties to bring before this court the judgment of a trial judge granting a first new trial.” Weinkle v. Brunsunck & Western R. Co., 107 Ga. 367 (33 S. E. 471); Macon Consolidated Street R. Co. v. Jones, 116 Ga. 351 (42 S. E. 468); Mock v. Savannah & Statesboro Ry. Co., 122 Ga., 385 (50 S. E. 121); Cox v. Grady, 132 Ga. 368 (64 S. E. 262); Smith v. Maddox-Rucker Banking Co., 135 Ga. 151 (68 S. E. 1031); New v. Southern Ry. Co., 136 Ga. 778 (71 S. E. 1104) ; Wilkins v. Barnes, 10 Ga. App. 316 (73 S. E. 349); Southern Fertilizer & Chemical Co. v. Peacock, 19 Ga. App. 592 (91 S. E. 528); Civil Code (1910), § 6204.

Judgment affirmed.

Broyles, P. J., and Earwell, J., concur.


text:
    8623.
    MILLER v. PIEDMONT FERTILIZER COMPANY.
    It was not error to sustain the demurrer to the plea, and to direct a verdict in favor of the plaintiff.
    Decided November 1, 1917.

      Complaint; from Murray superior court — Judge Wright presiding. February 20, 1917.

      H. H. Anderson, for plaintiff in error. Paul F. Aiken, contra.
   Bloodworth, J.

The court properly sustained the demurrer to the plea and struck paragraphs 4, 5, and 6 thereof, and did not err in directing a verdict for the plaintiff.

Plaintiff in error relies upon the decision in the ease of Turner v. Commercial Savings Bank, 17 Ga. App. 631 (87 S. E. 918). The first sentence of headnote 1 in that case, construed alone, is misleading. Construing the whole headnote together it means: “Where an action is brought to enforce payment of a debt for which collateral security has been given, it is incumbent on the plaintiff either to produce and restore the collateral security, or to account satisfactorily for its non-production,” in the event a plea of recoupment is filed which alleges a conversion of the collateral, or that “such collateral was actually deposited, and in which the ability of the plaintiff to produce the collateral is denied.” The facts in that case easily differentiate it from the instant case. In that case the body of the note contains this recital: “I hereby transfer to him [the payee] $5,000.00 of the capital stock of Realty Mortgage Co., to secure- the payment of this note;” and in his plea in that case the defendant denied the ability of the plaintiff to produce the collateral. In the present case the note sued on is an ordinary'promissory note, given by the defendant in May, 1915, with two other'persons signing as security, and the note contains no.reference to collateral, while the “collateral” referred to in the defendant’s plea was notes taken by him in the spring of 1914, and payable to the plaintiff. As a general rule the pledgee is not required to surrender or enforce the collateral before suing on the principal obligation. 31 Cye. 868 (B). Of course, in certain instances and under proper pleas, a defendant might show a conversion of the collateral, or negligent failure to collect and loss to himself in consequence thereof. Such is not shown in the instant case. See Fisher v. Jones, 108 Ga. 490-494 (34 S. E. 172) Mauck v. Atlanta Trust &c. Co., 113 Ga. 242 (38 S.E. 845); Spires v. Southern States Phosphate &c. Co., 4 Ga. App. 323 (61 S. E. 300).

Judgment affirmed-.

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


author: Broyles, P. J.

text:
    8773.
    Union Warehouse Company v. Roper.
    Decided November 1, 1917.
    Trover; from Worth superior court — Judge Eve. March 20, 1917.

      Pottle & Hofmayer, J. H. Tipton, for plaintiff in error.

      Claude Payton, Pope & Berinet, contra.
   Broyles, P. J.

1. The exceptions pendente lite to the judgment overruling the demurrer to the petition and the motion to dismiss, not having been argued in the brief of counsel for the plaintiff in error, are treated as abandoned.

2. Under the facts of the case it was error for the court to charge the jury as follows: “A corporation acts by and through its officers; and with reference to' any notice that the plaintiff claims that the Union Warehouse Company had as to O. L. Deariso having conducted this business in the name of the Union Warehouse Company, you will look to the evidence and see if there is evidence that notice of this fact was brought to the attention of any officer of the Union Warehouse Company, if you should find, under the evidence in the case, that he was so conducting the business as the Union Warehouse. Company, or in the name of the Union Warehouse Company.” The court should have stated in this connection that the notice must have been received by some officer of the company who was authorized to act for it under such circumstances.

3. The following excerpt from the charge of the court was error: “The evidence showing that there had been a conversion made of the property, and that the defendant had not the property in possession,” etc. In this portion of the charge the judge clearly expressed his opinion that a conversion of the property had been shown by the evidence;, whereas that was one of the disputed questions in the case, and an issue of fact as well as of law. This charge therefore requires a new trial of the ease.

4. No other reversible error was committed upon the trial. Since a new trial is to occur, the question as to the sufficiency of the evidence to support the verdict is not passed upon.

Judgment reversed.

Sloodworth' and Harwell, JJ., concur.


text:
    8827.
    Williams v. First National Bank of Millen.
   Broyles, P. J.

1. Where a discharge in bankruptcy is pleaded as a defense to an action, and the plea is traversed, the burden is upon the defendant to prove his discharge; and, to carry this burden, he must put in evidence a certified copy of tlie order granting the discharge. Bankruptcy act of 1898, c. 541, § 21 (f), 30 Stat. 551 (U. S. Comp. St. 1916, § 9605C Under the foregoing ruling and the facts .of this case, the court did not err in refusing to sustain the plea of discharge in bankruptcy.

Decided November 1, 1917.

Garnishment; from city court of Milieu — Judge Dekle. April 19, 1917.

Thomas L. Hill, for plaintiff in error. W. Woodrum, contra.

2. Where several persons sign a promissory note which -reads, “We, or either of us, promise to pay,” etc., it is a promise to pay jointly and severally. The legal holder of such a note can, at his pleasure, sue any one of the parties without suing the others. Reid v. Flippen, 47 Ga. 273. In the instant case the note was signed by a father and his two sons, and was a joint and several promise to pay; and judgment was duly obtained against all three. Thereafter, in this garnishment proceeding, one of the sons (the defendant in this case) filed an affidavit of illegality, .on the ground that his father' had not been legally served with process in the original suit. The defendant proved, by parol testimony,- that he and his brother signed the note as sureties for,, their father, and that the latter was never legally served with process. Under these facts the court did not err in dismissing the affidavit of illegality, it appearing that the defendant and his brother had been legally served with process.

3. The court, sitting by consent without the intervention of a jury, did not err in rendering judgment against the defendant.

Judgment affirmed.

Bloodaoorth and Harwell, JJ., concu/r.


text:
    8852.
    Moore v. Citizens Bank of Ashburn.
   Broyles, P. J.

1. A bank pass-book is evidence, but not conclusive evidence, of the amount due to a depositor. Bank of Lawrenceville v. Rockmore, 129 Ga. 582 (3) (59 S. E. 291).

2. Where by the terms of a contract money is received on deposit in the name of the wife of the depositor, with the agreement that the depositor may draw the deposit oh checks "to which he shall sign his wife’s name per his own name, and where he does draw the money so deposited on checks so signed, the wife can not hold the bank liable for the money so deposited and drawn out. In a suit by her against the bank it is not error to allow an officer of the bank to testify to the agreement, although the depositor with whom it was made be dead. Greene v. Bank of Camas Prairie, 7 Idaho, 576 (64 Pac. 888.). See also 7 Corpus Juris, 641, § 325.

3. An agent of a corporation which is a party to a cause is not incompetent, under the terms of section 5858 of the Civil Code of 1910, to testify to communications or transactions had with a deceased individual, where, as in this ease, the latter’s personal representatives were not parties to the cause. Ullman v. Brunswick Title Guarantee & Loan Co., 96 Ga. 625 (24 S. E. 409); Maxwell v. Imperial Fertilizer Co., 103 Ga. 108 (29 S. E. 597); Florida Central & Peninsular Railroad Co. v. Usina, 111 Ga. 697 (36 S. E. 928) ; Holston v. Southern Ry. Co., 116 Ga. 656 (43 S. E. 29). See also Stimpson Computing Scale Co. v. Holmes-Harts field Co., 6 Ga. App. 569, 570 (65 S. E. 358).

Decided November 1, 1917.

Complaint; from city court of Ashburn — Judge Tipton. April 21, 1917.

E. K. Wilcox, A. S. Bussey, for plaintiff.

J. H. Pate, J. A. Comer, for defendant.

4. The testimony of an officer of the defendant bank, as to statements made in his presence by the husband of the plaintiff at the time the husband opened the account with the bank, which statements showed the terms upon which the deposit was made, was legal and relevant. This was not a suit by or against the estate of a deceased person, and the bank had the undoubted right to show upon what conditions the deposit in question was made. Greene v. Bank of- Camas Prairie, supra.

5. None of the instructions of the court, to which exception was taken, contain material error.

6. There is no merit in ground 5 of the motion for a new trial, which complains that the court failed to give certain instructions to the jury. In the absence of a timely written request, such instructions were sufficiently covered by the charge as given.

7. The verdict was authorized by the evidence,' and the court did not err in refusing the grant of a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    8973.
    BOLTON v. THE STATE.
    1. In criminal law, conspiracy is a combination or agreement between two or more persons to do an unlawful act, and may be established .by proof of acts and conduct, as well as by direct proof or by express agreement.

      (a) The evidence in this case authorized the charge-of the court on conspiracy, and no error appears in the excerpts complained of.
    2. There was evidence to support the verdict.
    Decided November 1, 1917.
    Indictment for assault with intent to murder; from Gwinnett superior court — Judge Cobb. June 4, 1917.
    The indictment charges that the defendant “did commit the offense of assault with intent to murder in the second degree, by then and there being present, aiding and abetting the act to be done, and did then and there procure and direct and tell Jeff Staples to shoot Allen Sudderth, and that the said Jeff Staples then and there, with force and arms and a certain pistol, being a weapon likely to produce death, did unlawfully and with malice aforethought shoot and wound one Allen Sudderth with said weapon.” The record shows that Allen Sudderth, the person alleged to have been assaulted, was a policeman, that there was a show in town, and- that while he was on the show-grounds the defendant walked up in front of him and began to curse. What immediately followed is thus told by Sudderth: “I walked to him and asked him to be quiet, that he would have to quit cursing, and he said he was going to kill that woman or that man; he said so much I can’t remember all he did say.* I says, 'Mr. Bolton, you will have to quit cursing or get off the show-grounds; that is all there is to it.’ He said, 'This is my land and I will stay on it as long as I God damn please.’ I told him again, I said, 'Mr. Bolton, you will have to quit cursing or get off the show-grounds, or I will have to lock you up.’ He said, 'I won’t do no such a God damn thing,’ that I wasn’t man enough; and he kept cursing. His little boy. began to plead with him and beg him to go home. I said, 'Mr. Bolton, if you won’t listen to me, listen to your little boy down there at your knees pleading and praying for you to go home.’ He said, 'God damn you and him too.’ I says, 'Mr. Bolton, I will have to lock you up, or you will have to go home one. I took hold of his arm, and when I took hold of his arm he tried to jerk loose from me, and his top shirt-sleeve tore out, but his undershirt sleeve didn’t tear; so I held to his sleeve. Then he hit at me and knocked my cap down over my eyes, and I knocked my cap off, and he hit me again on the side of the head, and I hit him with my billy. We were going around and around; he was a little. better man than I was, and he jerked me around and around, and we had gone something like twenty feet, I guess, just drifting off, and I turned around, still hold of his sleeve, and something hit me, I don’t know what it was, whether a man or what it was; something hit me and knocked me off in a scale pit, and I heard him say,'Shoot the God damned son of a bitch, kill him.’ ; . I did not have hold of Bolton at the time Staples shot me. Bolton made the statements to Staples with reference to shooting when he knocked me in the. pit — when Mr. Staples knocked me in the pit. Staples kicked me in the pit; he run between us and kicked backwards like that [indicating], and kicked me in the stomach, and I fell backwards. Mr. Staples did not say anything at the time, not a word that I heard. Mr. Bolton said, ‘Shoot the son of a bitch, God damn him, kill him/ After I was shot I was taken to Dr. Mauldin’s office. Prof. McLeroy and Prof. Burson were about the first ones to me, and I told them to carry me to Dr. Mauldin’s office, that I was shot. He had an X-ray. When I got to the eorn'er of Dr. Mauldin’s office Mr. Bolton came around the corner and tried to get to the car, and somebody held him. He wanted to get to me to kill me; said if I didn’t die he would finish me; if I wasn’t dead he would finish me. I was in an automobile at the time, on the street in front of Dr. Mauldin’s office.” A. W. Bur-son testified that he heard the statement made by Mr. Bolton to Mr. Staples with reference to the shooting: “He just said for him to shoot him. ‘Shoot him, God damn him,’ I think were, the words. I could not be positive as to the exact words.” W. W. Wilson swore that immediately after the difficulty between the policeman and the defendant he saw the policeman in front of Dr. Mauldin’s office, and-when the defendant saw the policeman “he made a rush at him, at the automobile, like he was going to go into it. Young Humphries pulled him away. That was all I saw. Looked like he had a fighting mind on him.” J. E. Cruce testified, that on the night after the difficulty he was with the defendant, and the following occurred: “I think he asked was Mr. Staples dead. I believe I told him that he was not dead, but that I didn’t think he would live. He made the remark, if Mr. Sudderth was not dead he would kill him.” The jury found the defendant guilty. His motion for a new trial was overruled, and he excepted.

      O. A. Nix, D. K. Johnston, for plaintiff in error.

      W. 0. Dean, solicitor-general, contra.
   Bloodworth, J.

■ 1. The special grounds of the motion fór a new trial are all based upon alleged errors of the court in charging in reference to “conspiracy.” The plaintiff in error insists that ■the facts do not authorize a charge on conspiracy, and that the portion of the charge in reference thereto was argumentative; that the judge expressed an opinion on the facts, and that the charge “authorized the jury to find movant guilty without movant having participated in the act of assault made by Staples upon Sudderth.” The charge is not argumentative. Nowhere in it do we find that the judge expressed or intimated an opinion on the facts. Nor is it erroneous for the other reason stated: The judge. clearly charged the jcry that the defendant must be present at the scene of the crime, and must have aided and abetted the principal in the commission of the offense. A part of the charge on this branch of the case is as follows: “If you believe from the evidence, beyond a reasonable doubt, that Staples made an assault, as charged in the indictment, upon Allen Sudderth with a pistol, and that the same was a weapon likely to produce death, and that Staples intended to kill him, and that the assault was made under such circumstances as if death had ensued the offense would have been murder, then Staples would have been guilty of assault with intent to murder; and if Bolton was present, aiding and abetting him, and actually participated in the offense committed by Staples, if an offense was committed, and participated in the transaction, and was a- party to the alleged murderous design, then you would be authorized to find Bolton guilty of the offense of assault with intent to murder as principal in the second degree, provided you are satisfied, beyond a reasonable doubt, that he is so guilty, under the rales which I have already given you and under the rules which I will • hereafter give you. . . As stated, if you come to the conclusion in your minds, beyond a reasonable doubt, that Staples, if on trial, would have been guilty of the offense of assault with intent to murder as principal in the first degree, then you will inquire whether Bolton was present at the time, whether he participated in the transaction, and whether he was a party to a design which would have been felonious at that time, such felonious design being to commit the offense of assault with intent tp murder upon the person of Sudderth, an officer who was attempting to make an arrest, if you find that he was such officer and was attempting to make a lawful arrest at the time. In order for Bolton to be guilty as principal in the second degree, it is necessary that he should participate in the transaction and also should be a party to the criminal design. It would not be necessary, however, that there should be any prearrangement between Staples and Bolton before the transaction took place. It would be necessary for you to be satisfied beyond a reasonable doubt that there was a common design.” The cases of Futch v. State, 137 Ga. 75 (3) (72 S. E. 911), Brooks v. State, 128 Ga. 261 (57 S. E. 483), Thornton v. State, 119 Ga. 437 (46 S. E. 640), and Kimball v. State, 112 Ga. 541 (37 S. E. 886), are easily differentiated ;from the instant case. The principle upon which those .cases were based was that the defendant was not guilty of aiding and abetting, because he did not participate in the felonious design; and in this case the evidence shows that the defendant did participate in the felonious design. “A conspiracy in criminal law is a combination or agreement between two or more .persons to do an unlawful act, and this may be established by proof of acts and conduct as well as by direct proof or by express agreement.” Carter v. State, 141 Ga. 308 (80 S. E. 995); Weaver v. State, 135 Ga. 317 (69 S. E. 488). In this case, when Staples ran to the assistance of the defendant, and struck and kicked the policeman, and the defendant yelled to him, “Shoot him, Jeff, kill him, God damn him, kill him,” and thereupon Jeff (Staples) drew his pistol and fired upon the policeman, this showed concert of action, showed that the minds of Bolton and Staples concurred, united in a common purpose; they conspired, “breathed together” a common intent to kill the policeman. Thus it appears that there was ample evidence to authorize the charge on conspiracy. Turner v. State, 138 Ga. 808, 812 (76 S. E. 349); Walker v. State, 136 Ga. 126 (70 S. E. 1016); Weaver v. State, supra; McLeroy v. State, 125 Ga. 240 (54 S. E. 125); Owens v. State, 120 Ga. 296 (48 S. E. 21); Stevens v. State, 8 Ga. App. 217 (3), 218 (68 S. E. 874).

2. The evidence authorized the verdict, and the judge properly refused a new trial,

Judgment affirmed.

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


author: Harwell, J.

text:
    8974.
    Fleming v. The State.
   Harwell, J.

1. The sole ground of the motion for a new trial, other than the general grounds, is based on alleged “newly discovered” evidence. This ground affirmatively shows that the movant had knowledge of this evidence at the time of the trial, but it is alleged that “movant forgot to tell her counsel” about it, and did not “think to put this fact in her statement when she was on the stand making her statement.” The mere fact, alleged in this ground, that the movant was “inexperienced in court trials” and did not know the legal effect of the evidence she omitted to introduce will not dispense with the requirement as to newly discovered evidence, that it “shall be discovered by the applicant after the rendition of a verdict against him.” Penal Code, § 1088.

Decided November 1, 1917.

Indictment for stabbing; from Cobb superior court — Judge Morris. May 21, 1917.

The indictment charged the defendant with the offense of stabbing. The charge grew out of a fight between two negro women. In this fracas both were cut and stabbed. In the motion for new trial it was insisted that a new trial should be granted upon the ground of alleged newly discovered evidence that the prosecutrix had, some time prior to the trial, entered a plea of guilty to stabbing, on an indictment growing out of the same transaction. The movant admitted knowledge of this fact at the time of trial, but asserted that she had no idea of its importance, and through pure ignorance failed to communicate it to her attorneys, “nor did she think to put this fact in her statement when she was on the stand making her statement.” Her counsel were ignorant of it until told by her after the trial.

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

Herbert Clay, solicitor-general', contra.

2. The evidence supported the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Bloodworth, • J.

text:
    9076.
    TANNER v. THE STATE.
    There was ample evidence to authorize an instruction to the jury on the law of voluntary manslaughter. The judge’s charge was full and fair; and no reason appears for disturbing the verdict.
    Decided November 1, 1917.
    Indictment for murder; conviction of manslaughter; from Barrow superior court — Judge Cobb. July 11,1917.

      P. Cooley, Lewis C. Russell, for plaintiff in error.

      W. 0. Dean, solicitor-general, J. B. Gamble, O. A. Nix, contra.
   Bloodworth, • J.

Hpon his, first trial, the plaintiff in error was convicted of murder. He obtained a new trial because the judge failed to instruct the jury on the theory of manslaughter. Hpon his second trial the judge charged upon manslaughter, and a new trial is now asked and error is alleged because such a charge was given. This is the only special ground of the motion for a new trial. It is insisted that the evidence on the first trial showed that the deceased assaulted the defendant with a pair of brass knucks, that it was not then shown that brass knucks were weapons likely to produce death, but that this was shown in the last trial, and that this differentiates the eases made at the two trials; the evidence in the former case, according to the contention of plaintiff in error, demanding a charge on voluntary manslaughter, and the evidence in the latter not authorizing such a charge. When this case went to the Supreme Court after the first trial that court held: “If the evidence be sufficient to raise a theory of voluntary manslaughter, a failure to instruct the -jury as to the law applicable thereto requires a reversal of the judgment refusing a new trial. . . Where the evidence presented a theory that after an interchange of words the decedent struck the defendant with a weapon not shown to be deadly, partially knocking him down, and the accused immediately fired upon him with a pistol, inflicting a mortal wound, a charge on the law of manslaughter was applicable.” Tanner v. State, 145 Ga. 71 (88 S. E. 554). The decision shows that the weapon referred to was a pair of brass knucks, not then shown to he deadly. As will be hereafter pointed out, the general principle stated in that decision' is applicable to this case, even though there is evidence to show that brass knucks are deadly weapons, and that at the time the deceased was shot he was advancing on the defendant.

In the case of Cain v. State, 7 Ga. App. 34 (65 S. E. 1069), we find the following: “It is well settled, by repeated rulings of the Supreme Court and this court,-that on a trial for murder, if there is anything deducible from the evidence or the defendant’s statement that would tend to show manslaughter, voluntary or involuntary, it is the duty of the court to instruct the jury fully on the law of manslaughter. Crawford v. State, 13 Ga. 143 (6); Jackson v. State, 76 Ga. 473; Wayne v. State, 56 Ga. 113; Bell v. State, 130 Ga. 865 (61 S. E. 996); Strickland v. State, 133 Ga. 76 (65 S. E. 148); Pyle v. State, 4 Ga. App. 811 (63 S. E. 540). In the Crawford case, supra, the court strongly expresses itself on the subject, as follows: ‘When a defendant is put upon trial for mur-. der, and there is any doubt as to the grade of homicide of which he is guilty, it is the duty of the court clearly and distinctly to instruct the jury as to the law, defining the several grades of homicide as recognized by the Penal Code, and then leave it to .the jury to ñud from the evidence of what particular grade he is guilty/ In Jackson v. State, supra, the court uses still - stronger language, and holds that 'where there is evidence sufficient to raise a doubt, however slight, upon the point whether the case is murder or manslaughter, voluntary or involuntary, the court should instruct the jury upon these grades of manslaughter as well as murder/ ” In Griffin v. State, 18 Ga. App. 462 (89 S. E. 537), it is said: “If there be any evidence to' create a doubt, however slight, as to whether the offense is murder or voluntary manslaughter, instructions as to the law of both of • these offenses should be given. Jackson v. State, 76 Ga. 473, 478; Wayne v. State, 56 Ga. 113.” And “If there is anything deducible from the evidence or from the defendant’s statement at the trial, that would tend to show manslaughter, voluntary or involuntary, it is the duty of the court to instruct the jury fully on the law of manslaughter/’ The evidence fails to show that any weapon was found on the person of the deceased, and fails to show that any knueks were seen around the place he fell after he was shot. There are several theories deducible from the evidence and the .statement of the defendant that would tend to show manslaughter. One of these is that after an interchange of words and upon sudden provocation the accused and the deceased each drew a weapon, one a pistol the other a knife, and a battle ensued, no undue advantage being sought or taken by either. On this theory the defendant would be ■guilty of manslaughter. Taking all of the_testimony in the case, there is ample evidence to support each branch of this theory. The statement of the defendant shows that a short time prior to the shot the deceased had a knife, and one of the witnesses for the ' defendant swore that he thought he saw “a knife under his [the deceased’s] arm where he was lying on the ground; . . it looked to me more like a knife than anything else.” There was some evidence of hot words, and also evidence to show that the wound on the face of the defendant, which he claimed to have been made by brass knueks, was not so made. See Clements v. State, 140 Ga. 165 (2), 167 (78 S. E. 716); Strickland v. State, supra; Wall v. State, 126 Ga. 549 (55 S. E. 484); Gann v. State, 30 Ga. 67; Karris v. State, 2 Ga. App. 487 (58 S. E. 680) ; Clark v. State, 6 Ga. App. 741 (65 S. E. 694). In the case last cited Judge Eussell said (p. 743): “If there is any theory of the evidence authorizing the inference that the killing was the result of a sudden heat of passion pending a fight or aroused by an assault, and without malice aforethought, it is not unlawful for the defendant to be convicted of voluntary manslaughter.” Another theory justifying the charge of voluntary manslaughter is found in the evidence of witness B. B. Peppers, who swore: “Mr. Sells finally struck him with his fist. That sorter dazed him back, a little. He went back behind a mule and buggy. . . I didn’t see what Mr. Sells hit him with; so far as I know he just hit him with his fist. . . I could not say whether or not he hit him with anything besides his fist. I never saw anything. After Mr. Sells struck Mr. Tanner and knocked him back behind the buggy he continued to advance on him. Just as quick as Sells hit him he put his hand in his coat-pocket and made two or three steps towards him just as quick as he could, and the pistol fired. . . Sells advanced on Tanner after he put his hand in his side coat-pocket; it was right then that the pistol shot.” The judge properly adjusted his charge to this branch of the case in part as follows: “If you believe fróm the evidence that the defendant [deceased?] at the time of the alleged killing only intended to commit an assault or an assault and battery upon defendant, or if you believe from the evidence, beyond a reasonable doubt, that deceased struck defendant only with his fist, or was attempting to do so, when he was shot, .and if you believe from the evidence, beyond a reasonable doubt, that the defendant shot and killed the deceased to prevent such an assault or an assault and battery, the killing, under these circumstances, would be manslaughter, and not murder. But if defendant [deceased ?] intended to commit a felony upon the person of deceased [defendant?], or if the deceased made an assault upon the defendant with brass knucks, and the evidence shows the same to be a weapon likely to produce death, and defendant shot and killed deceased to prevent deceased from assaulting defendant with said knucks, the killing, under these circumstances, would be justifiable homicide.” From the above it will be seen that there was ample evidence to authorize the charge on voluntary manslaughter. '

The evidence, in connection with the statement of defendant, presented three theories as to the truth of the case. The charge of the judge was full and fair. The duty of determining which theory was correct devolved upon the jury; and this court finds in the record no reason for interfering with the verdict.

Judgment affirmed.

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


author: Bloodwokth, J.

text:
    9103.
    Walker v. The State.
    Decided November 1, 1917.
    Indictment for murder; conviction of manslaughter; from Fulton superior court — Judge Hill. June 30, 1917.

      B. C. Buchanan, J. M. Fuller, for plaintiff in.error.

      John A. Boykin, solicitor-general, B. A. Stephens, contra.
   Bloodwokth, J.

1. When considered in connection with the entire charge of the court, there was no error prejudicial to the defendant in the following instruction: “The defendant is allowed to make a statement. The statement is not evidence, strictly speaking. The law leaves to the jury the right to accept his statement, and to accept it in preference to the sworn testimony, if the jury believes it to .be the truth of the transaction.”

2. There was no error harmful to the defendant in the following instruction: “The fact that a man has a pistol on his person, or the fact that he used a pistol, ordinarily is evidence against him; but I charge you that the fact the defendant had a pistol is not evidence against him, unless the evidence shows that he carried the pistol for the specific purpose of using it against the deceased.”

3. There was evidence sufficient to support the verdict.

Judgment affirmed.

Broyles, F. J., and Harwell, J., concur.


text:
    9111.
    Marion v. The State.
   Bloodwokth, J.

In an indictment for perjury it must appear how and in what manner the testimony alleged to be false was in fact material in the trial of the issue when the testimony was delivered. Herndon v. State, 17 Ga. App. 558 (87 S. E. 812); Buff v. State, 17 Ga. App. 337 (86 S. E. 784); Broadwater v. State, 10 Ga. App. 458 (5) (73 S. E. 691). See also Askew v. State, 3 Ga. App. 79 (59 S. E. 311); Black v. State, 13 Ga. App 541 (79 S. E. 173); Hembree v. State, 52 Ga. 242. And in such an indictment an allegation that the defendant swore, “I have not cohabited with my wife or lived with her since she admitted writing the note to Holcombe, which I found in the baby’s cradle,” standing alone does not show how and in what manner the testimony of the defendant on the trial of a divorce case was material to the issue, it not appearing upon what ground the petitioner prayed for the divorce. The indictment does not even state the contents of the" note referred to in the quotation above. The indictment failing to show how and in what manner the testimony alleged to be false was in fact material, it is fatally defective, and the grounds of demurrer covering this point should have been sustained.

Decided November 1, 1917.

Indictment for perjury; from Floyd superior court — Judge Wright. July 19, 1917.

M. B. Eubanks, for plaintiff in error.

Claude II. Porter, solicitor-general, contra.

Judgment reversed.

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


text:
    8330.
    SHORES-MUELLER COMPANY v. BELL et al.

    The court did not err in the ruling upon the demurrer to the answer, nor in overruling the motion for a new trial.
    Decided November 2, 1917.
    Complaint; from Gordon superior court — Judge Fite. December 11, 1916.
    On or about June 14, 1910, the plaintiff, Shores-Mueller Com-' pany, entered into an agreement with A. J. Bell as principal, and P. C. Bell, J. H. Littlefield, and W. A. Tate as guarantors, whereby it was agreed that the plaintiff was to furnish to the principal such medicines, extracts, spices, and other goods as he. might from time to -time order; the principal agreeing to pay for such articles, and having the right, under the agreement, “to pay his said account by remitting in cash each week to the company an amount equal to one half of the receipts from his business until the account is balanced.” There were other provisions of the contract, including one requiring the purchaser to furnish to the company weekly reports of his business. This suit was brought on May 4, 1915, as on an “account stated,” and in the petition it was alleged: “that on the 5th day of November, 1912, the said A. J. Bell acknowledged his indebtedness in the said amount of $617.86 in the following manner, to wit: ‘Auditing department, Shores-Mueller Company, Tripoli, Iowa. Gentlemen: I hereby acknowledge receipt of, your monthly statement of my account, dated 11-5-12, for month of October, 1912, showing a balance due to Shores-Mueller Company of $617.86, . . which is true and correct and agrees with my books.’” It was also shown by the petition that after November 5, 1912, the defendant A. J. Bell returned certain articles included in his purchases, and was entitled ■to a credit of.$264.93 for them, leaving a balance due the plaintiff of $415.40. In his answer he admitted the execution of the contract, and denied the allegations contained in that paragraph of the petition which set up the acknowledgment of indebtedness, but did not deny the correctness of the account sued on, as to the balance due for artidles furnished, except that he denied all indebtedness to the plaintiff, alleging a failure of consideration under the contract, in that the goods furnished were themselves worthless. The guarantors disputed their liability and denied generally the allegations of the several paragraphs of the petition; one df the guarantors, P. C. Bell, also pleading specially that her contract of guaranty was void because of the fact that she was a married woman and therefore, at the time she signed the agreement, was unable legally to bind herself thereby. The plaintiff demurred to the answer of A. J. Bell, on the ground “that the suit filed in this case is a suit based on an account stated, which operates as a confession, and a fixed liability, and there are no facts alleged in said plea which would as a matter of law entitle defendant to such relief . . as is sought to be made in and by said plea.” The demurrer was overruled, and on the trial a verdict was returned for the defendants. The plaintiff excepted to the overruling oi its demurrer and of its motion for a new trial.’

      J. G. B. Erwin Jr., for plaintiff.

      Lang & Lang, George A. Coffee, for defendants.
   Jenkins, J.

(After stating the foregoing facts.)

1. We think the demurrer to the defendants’ answer was properly overruled. An “account stated” is an agreement by which parties who have had previous transactions fix the amount due in respect thereto, and promise payment. Moore v. Hendrix, 144 Ga. 646, 648 (87 S. E. 915); Borders v. Gay, 6 Ga. App. 734 (65 S. E. 788). While-the'quoted letter to the plaintiff from the defendant principal, A. J. Bell, certainly undertakes to fix the amount due in respect to the items of their previous transactions, it lacks one of the necessary requirements in order to constitute an “’account stated,” in that it fails to embrace á promise to pay. It was held in the case of Ward v. Stewart, 103 Ga. 261 (3) (29 S. E. 872), that “In the absence of a demurrer for insufficient allegations with reference to a promise or undertaking to pay, the declaration was good, treated as an action on an account stated.” This is true because, as stated in that ease, had such objection been made, the petition would have been open to amendment to meet the objection. In the absence of such objection a promise to.pay will be implied. We can see how there should be a distinction, however, where, as in the instant case, the petition not only fails to allege the necessary promise to pay, but, by embodying the written agreement relied on, shows within itself that no such promise was in fact made. In a case, where the requirements of an action on a stated account are met, the defendant, in order to dispute the correctness of the amount so alleged to be due, would have to surcharge and falsify (Civil Code (1910), § 4591); that is, he must allege the omissions and deny the correctness of the items rendered. In this way he is permitted to inquire into and dispute the items which enter into and make up the amount claimed under the account stated whenever he is able to show that fraud, accident, or mistake occasioned the acquiescence on his part. In the instant case the defendant sets up no such defense; he does not deny the furnishing of the articles which are the basis of the account, nor does he claim any credit not allowed. He simply seeks to show that the articles so furnished proved worthless, and pleads failure of consideration under the contract. The Supreme Court and this court have ruled in substance a number of times that where a purchaser, notwithstanding his full actual knowledge of the defects in the articles sold to him, deliberately promises in writing to pay therefor, he can not thereafter set up a plea of failure of consideration based upon such defects. Harder v. Carter, 97 Ga. 273 (23 S. E. 82); Lunsford v. Malsby, 101 Ga. 39 (28 S. E. 496); Byrd v. Campbell Co., 90 Ga. 542 (16 S. E. 267); Sizemore v. Woolard, 3 Ga. App. 261 (2) (59 S. E. 833); American Car Co. v. Atlanta City Railway Co., 100 Ga. 254 (28 S. E. 40); Unitype Co. v. Shelton, 11 Ga. App. 742 (76 S. E. 80). Had the agreement relied on as constituting an account stated in fact contained the necessary promise to pay, we think, under the theory just indicated, the defendant would have been denied the right of setting up such defects, provided the evidence disclosed that knowledge of such defects was had by the defendant at the time such promise in writing was made. But even had such a promise been made, the evidence in this ease as to such knowledge is altogether vague and uncertain, and fails ■to make clear that such defects in the particular articles which constituted the basis of the present suit were known to the defendant at the time the statement relied on was actually signed.

2. Under the special facts of the case it does not appear that there was error in the admission of the testimony complained of in the 4th ground of the motion for a new trial. While the testimony objected to in the 5th ground was irrelevant and immaterial, it could not have harmed the plaintiff’s cause, and its admission, therefore, affords no ground for reversal.

3. The charge of the court as to the defendant P. C. Bell, complained of in the 6th ground of the motion for a new trial, was not error. While, under the terms of the contract, acceptance was provided for by the plaintiff at its home office in Iowa, and while as a rule a contract is considered as entered into at the place where the acceptance is made, still, no statute of the State of Iowa having been pleaded, it is presumed that the common law is of force and must govern, and under it the defense actually set up by Mrs. Bell, that her contract of guaranty did not bind her, was good.

4. The excerpts from the charge, complained of in the 7th and 8th grounds of the motion for a new trial, if taken by themselves and disconnected from their context, and especially that portion of the charge immediately following, might seem to have confused the method of payment with the defendant’s liability under the contract; still we think that the charge as a whole makes it clear that the defendant’s liability was not thus improperly limited, and we do not think that the jury could have been misled thereby.

5. The evidence authorized the verdict, and the court did not err in refusing the grant of a new trial.

Judgment affirmed.

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


text:
    8476.
    JOHNSTON, ordinary, v. BRADSHAW.
    When the judge of the superior court is absent from the county in which a levy of .an execution or other process issued by and returnable to that court is made on perishable or other' property to which the provisions of the code as to. speedy sale of property levied on are applicable (Civil Code of 1910, § 6068), the ordinary of the county, acting in his own judicial capacity as such, is authorized to grant an order for such sale, and is entitled to such cost in the proceeding as may be clearly prescribed by the - provisions of the Civil Code (1910), § 4827, pertaining to the fees of ordinaries.
    Decided November 2, 1917.
    Taxation of costs; from Chattooga superior court — Judge Wright. January 3, 1917.
    In the absence of the judge of the superior court, the ordinary granted an order permitting the speedy sale of certain personal property under a superior court fi. fa., in accordance with the provisions of the Civil Code (1910), § 6068. The ordinary filed with the sheriff his bill of costs in the sum of $5, made up of the following items: “Beceiving application for order to sell, $1.25; filing and docketing, $2.00; recording same, 350 words at 15 cts. per hundred, .50; order allowing sale, .50; recording order, .75;” and the amount of the bill was retained by the sheriff from the proceeds of the sale. The defendant in error filed a motion in the superior court to strike the bill of costs, except the item of fifty cents for the order allowing sale. The motion was heard upon an agreed statement of facts, and was sustained by the court, and the ordinary excepted.

      Wesley Shropshire, for plaintiff in error.

      Harris & Harris, contra.
   Jenkins, J.

(After stating the foregoing facts.) Counsel for the defendant in error contend that the ruling of the superior court was correct, for the reason that the entire proceeding was in the superior court, and that the acts performed by the ordinary did not pertain to the functions of the office of ordinary, but merely constituted the authority for the sale by the sheriff, whose duty it was to return the process to the superior court, with all his acts and doings thereon; that the ordinary had nothing to do with the proceeding except to take the place of the judge of the superior court in granting the order to sell, and that the items of cost provided for by law as going to him in. proceedings had in his court are not applicable to this case, and that for this reason none of the fees are due him,-including even the fifty cents which was not actually disputed. If it be true that the order allowing the sale was in fact the act of the superior court, merely taken through the ordinary, we think the position of counsel would be correct; but if the provisions of the Civil Code (1910),„§ 6068, must be construed to give primary jurisdiction in such a proceeding to the judge of the superior court, and secondary jurisdiction, in his absence, to the ordinary, acting in his own judicial capacity, it would seem that whatever fees are prescribed as going to the ordinaTj'-, which might be clearly applicable to a proceeding of this kind, would be due and belonging to him. In our opinion the act of the ordinary granting the order was a judicial one, and not merely ministerial, and in so doing he exercised the functions .of his own office, - and did not merely exercise powers of the judge of the superior court. It is provided by the Civil Code (1910), § 4785, that whenever an ordinary is disqualified or from other cause is incapacitated to act, the judge of the county or city court may exercise all the jurisdiction of ordinary in such cause. In that instance, the county or city court judge exercises such authority as ordinary, whereas in the present instance, when the judge of the superior court is absent from the pounty, the ordinary is given authority.to act in such a proceeding, not as the representative of the absent judge, but acting in his own judicial capacity as ordinary. And since his judgment in such a proceeding is a judicial act in the furtherance of his own official duties as prescribed by law, we do not think the ruling made in Lumpkin County v. Williams, 89 Ga. 388 (15 S. E. 487), is applicable. In that case it was simply held that the ordinary was not entitled to the fees there referred to for services performed in the exercise of ministerial duties touching county business, but the clear import of that decision is that he is entitled to all fees which may be properly charged for services performed in his judicial capacity as ordinary. It is therefore our opinion that the judgment of'the superior court was erroneous, and that the ordinary is entitled to such items of the cost specified by him as. are clearly applicable in such a proceeding under the provisions of the Civil .Code (1910), § 4827, pertaining to the fees of ordinaries. But when a public officer claims fees for his services, he should be able to show clear authority of law in support of that claim to entitle him to have it allowed. Thomas v. Thomas, 61 Ga. 70, 72; Board of Commissioners v. Cox, 65 Ga. 81; Walker v. Sheftall, 73 Ga. 806; Walker v. Sanford, 78 Ga. 165, 167 (1 S. E. 424). We think that each of the last three items of cost claimed are properly allowable, but are unable to find any clear authority either for the item designated as “receiving application for order to sell, $1.25,” or for the other item, called “filing .and docketing, $2.00,” and for this reason think they should be stricken.

Judgment reversed.

Wade, C. J„ and Luke, J„ concur.