author: Jenkins, J.

text:
    8732.
    COSBY v. REID.
    1. The duty of processioners in fixing and marking anew established lines is not to locate them as they originally ought to have been laid out, but only to fix and determine the boundaries as they actually exist (Boyce
      V. Cook, 140 Ca. 360, 78 S. E. 1057; Langley v. Woodruff, 144 Ga. 702, 87 S. E. 1054), keeping in view the rules governing in disputed lines as prescribed by section 3S20 of the Civil Code (1910), as well as the provision of law that “Where actual possession has been haij, under a claim of right, for more than seven years, such claim shall be respected, and the lines so marked as not to interfere with such possession.” Civil Code (1910), § 3S22. It is not the function of proeessioners to'ascertain and fix new lines; their duty is only to run and mark anew those which can be taken as having been formerly located and established. Amos v. Parker, 88 Ga. 754 (16 S. E. 200); Parrish v. Castleberry, 142 Ga. 115 (2) (82 S. E. 520) ; Wheeler v. Thomas, 139 Ga. 598 (77 S. E. 817) ; Elkins V. Merritt, 20 Ga. App. 737 (92 S. E. 51). Thus, muniments of title accompanied by diagrams or plats which might on paper sufficiently describe and designate the lines and boundaries of realty so as to render their ascertainment certain will not of themselves afford the proper basis for the services of proeessioners. But even though the course and extent of the line itself may not have been actually marked out upon the earth’s surface, yet, if there should exist a sufficient number of physically established corners dr landmarks, the mere connecting of which by straight lines, or from which the projecting of the courses and distances shown by the plat would suffice to complete the boundary, it would be the duty of proeessioners, in accordance with the provisions of section 3820 of the Civil Code (1910), so to ascertain, mark, and establish the same, respecting always the rights had under actual possession as defined by section 3822 of the Civil Code.
    2. The failure to charge in the precise language requested is not cause for a new trial, where it appears that the principle involved was sufficiently covered by the general instructions given. Gramling v. Pool, 111 Ga. 93 (36 S. E. 430); Wheatley v. West, 61 Ga. 402 (4) ; Parker V. Georgia Pacific Railway Co., 83 Ga. 539 (5) (10 S. E. 233); Millen Railroad Co. v. Allen, 130 Ga. 656 (4) (61 8. E. 541) ; Atlantic Coast Line Railroad Co. v. Odum, 5 Ga. App. 780 (2) (63 S. B. 1126).
    3. The excerpts from the charge of the court, when considered in connection with the charge as a whole, are not subject to the criticisms made in the third, fourth, and fifth grounds of the amendment to the motion for a new trial.
    Decided January 22, 1918.
    Protest to proeessioners’ return; from Lincoln superior court— Judge Walker. September 13, 1916.
    There was a trial of an issue made by a protest to the return of proeessioners. The jury found in favor of the return. The case is here on exceptions to the refusal to grant a new trial. It appears that both parties to the litigation derived their title from the same original source, the adjoining tracts being lots formed in a prior subdivision of an estate, made in 1886, the proeessioners and surveyor testifying to their access to and use of' the plat made in that division. The plaintiff in error contended that the disputed line was physically marked along the course as contended for by her, and that she had been in actual possession of the land up to this line for more than seven years. The defendant in error introduced rebutting evidence, to the effect that the marks relied on by the adverse party were not landmarks and had not been made for such purpose. She further denied the adverse possession claimed by the plaintiff in error. On these points the Jury found in her favor. The defendant in error contended that three of the four corners of. her tract were physically fixed and determined, and it appears that the line arrived at by the processioners was fixed by running the line in accordance with the plat, by reference to courses and distances emanating from two of such established corner landmarks, so as thus to arrive at and fix the point of the fourth corner physically undesignated. In the motion for a new trial it is complained that the court refused written requests to charge the Jury as follows: (1) “The law provides, if the corners are established and the lines not marked, a straight line as required by the plat shall be run. I charge you that this law not only means one corner shall be established, but that the corner to which it is to be connected shall be established.” (2) “The vocation of the processioners is to view and mark lines which at some previous time were located and established. They seek and find lines already existing, but can not bring into existence any which have not been before designated on the surface of the earth. Lines merely drawn on paper or in the minds of the contracting parties are not ready for the search or services of processioners.” This language is an extract from the opinion rendered in the case of Amos v. Parh&r, 88 Ga. 754 (16 S. E. 200). The court charged the Jury as follows: “In all cases of disputed lines the following rules shall be respected and followed: Natural landmarks, being less liable to change, and not capable of counterfeit, shall be the most conclusive evidence; ancient or. genuine landmarks, such as corner stations' or marked trees, shall control the course and distances called for by the survey;” and subsequently: “If the corners were established and lines not marked, a straight line, as required by the plat, should be run, but an established marked line, though crooked, shall not be overruled; . . courses and distances shall be resorted to in the absence of higher evidence.” These excerpts are in the language of section 3820 of the Civil Code of 1910. The court further charged the jury: “You must hold in your minds all the time that the object of these processioners is to find and re-mark the original lines. They have no right nor jurisdiction to establish new lines. . . Processioners have no power, as I have already instructed you, to ascertain and fix new lines, but only to run and mark those which were formerly located and established.”

      John T. West, Wyatt & Harneslerger, Qolley & Colley, for plaintiff in error. C. J. Perryman, contra.
   Jenkins, J.

(After stating the foregoing facts.)

1. Under the rule as expressed in the first headnote, the processioners, in the absence of higher and controlling evidence accepted by them to the contrary, were authorized to run, mark, and establish the. disputed line, when such, could be done, by means of courses and distances in accordance with the plat, projected from actual physical landmarks. We think the charge of the court relative to the want of authority on the part of processioners to establish new lines, but limiting their power.to the establishment and marking of lines already existing, was sufficiently clear/

2. While one portion of the excerpt from the charge complained of in the third ground of the amendment to the motion for a new trial may not be within itself as complete and clear as it might have been, yet the charge, when considered in connection with the instructions given just preceding and immediately following the portion complained of, and when taken as a whole, makes it perfectly clear that if in the opinion of the jury the evidence showed an established marked line, that line should be taken to the exclusion of courses and distances. Nor do we think that the jury could possibly have been misled by the excerpt from the charge complained of in the last ground of the motion for a new trial. The judge had repeatedly given in charge the provisions of section 3822 of the Civil Code (1910), as to the controlling effect of seven years adverse possession, and had amplified and emphasized this mandatory rule of law, to which rule special reference was in fact again made in connection with the excerpt actually complained of, and without any qualification such as was made in the case of Williams v. Giddens, 132 Ga. 342 (64 S. E. 64). The verdict sustaining the return of the processioners was authorized by the evidence, and, the' trial judge being satisfied therewith, no sufficient reason appears why it should be set aside.

Judgment affirmed.

Wade, G. J., and Lulce, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    8743.
    Duke v. Automobile Supply Company.
    Decided January 22, 1918.
    Attachment; from city court of Floyd county — Judge Nunnally. March 20, 1917.

      Nathan Harris, Wright Willingham, for plaintiff.

      J ones & Shanlclin, Maddox & Doyal, for defendant.
   Jenkins, J.

1. In cases of attachment, the giving of a replevy bond, the filing of a general demurrer, and an answer, without protestation, each operates to convert the action from a suit in rem into an action in personam; and in such case, though the attachment itself may fail, the suit on the declaration is still maintainable. McAndrew v. Irish-American Bank, 117 Ga. 510 (43 S. E. 858); Cincinnati Railway Co. v. Pless, 3 Ga. App. 400 (60 S. E. 8); Philip Carey Co. v. Sheppard, 19 Ga. App. 368 (91 S. E. 444); Falligant v. Blitch, 19 Ga. App. 675 (91 S. E. 1057).

2. But where the allegations of a declaration in- attachment were to the effect that the plaintiff sold to the defendant a certain automobile for $600, for which sum, with interest, judgment was asked, and on the trial the plaintiff testified that he sold the automobile to the defendant under an agreement that he was to take up four notes for $100 each which the plaintiff had previously given to the defendant for the same automobile and which had been traded by the defendant to a bank, and that the defendant was also to deliver to the plaintiff two other notes for $100 each, given by him to the defendant for this automobile, all of which the defendant refused to do, there was a failure to prove his case as laid, and the court did not err in awarding a non-suit.

Judgment affirmed.

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


text:
    8760.
    FIRST NATIONAL BANK OF CHATTANOOGA v. KIRKLAND.
    The verdict was authorized by evidence, and there was no error of law requiring the grant of a new trial.
    Decided January 22, 1918.
    Trover; from Fulton superior court- — Judge Pendleton. January 20, 1917.

      A bank in Chattanooga held a note made by Kirkland and indorsed by Kyle, dated January 23, 1914, and due April 23, 1914. The Chattanooga bank sent this note for collection to a bank at Gadsden, Alabama, of which Kyle was vice-president, and after its maturity the Chattanooga bank authorized Kyle to procure from Kirkland a renewal note for the principal, which note should mature three months from April 23, 1914, and to secure which Kirkland was to attach certain stock certificates as collateral, in lieu of Kyle’s indorsement, it being then further agreed by the Chattanooga bank that this renewal note would be itself extended so as to allow Kirkland to “pay five hundred in nine months, five hundred in twelve months, one thousand every ninety days thereafter until paid in full.” Kirkland agreed with Kyle upon the terms of this arrangement, and sent to him the ninety-days renewal note together with the collateral specified. Kyle returned to Kirkland the collateral, stating as the reason that it had not been properly assigned by a previous owner, and made the request that it be transferred in blank and returned. Kirkland procured the transfer requested, and the previous owner, after signing it, mailed the stock certificate direct either to Kyle or to the bank at Gadsden, and it reached the bank on July 23, 1914, the day on which the renewal note was to mature. Thereupon the Gadsden bank wrote to Kirkland as follows: “Mr. D. H. Kirkland, Atlanta, Ga. Dear Sir: We this morning received the certificate of stock from Mr. Young, properly transferred, and I went immediately to our files-to get the paper for the renewal, whereupon I ascertained that the renewal paper is due today.. I called Mr. Kyle over the phone, and he advises me that his agreement with you was to give you one renewal of the renewal paper. We are, therefore, enclosing paper made out for an extension'of three months from this date, which we would thank you to execute and return in the first mail with your check for $80, interest, when we will return to you the old note. Please get this back as promptly as possible. We are enclosing the paper due today, which as you understand has not been used. Yours truly, S. McGaughey, Vice-pres’t.” Kirkland retained the -note and stock thus sent to him, and the Chattanooga bank brought suit in bail-trover therefor. The Chattanooga bank still holds the old note made by Kirkland and indorsed by'Kyle, and has made no tender thereof to Kirkland. On the trial its president, after stating that it expected to hold the Gadsden bank, said: “We will hold Mr. Kyle also. I do not know whether we will make him pay it or the First National Bank of Gadsden. We are holding the note. We authorized him to surrender the note of January 23 upon receipt of these papers.” He said also: Hpon the return of the collateral note “we will give you that [the old] paper. I do not know that we will renew it now, but we agreed to do it.” The jury found in favor of the defendant.

      A. B. Goodhue, McDaniel & Blade, Bachman & Simmons, for plaintiff. Mayson & Johnson, Tye, Peeples & Tye, for defendant.
   Jenkins, J.

(After stating the foregoing facts.) Irrespective of whether or not under the circumstances of the case the Gadsden bank was the joint agent of plaintiff with Kyle in taking the renewal note, or whether the Gadsden bank in returning the note and stock to Kirkland acted as a mere volunteer and without authority, upon the idea that its sole duty was that of a collection agent with power to collect the old note and remit proceeds, or transmit the new note as taken by Kyle, the sole agent of the Chattanooga bank for that purpose,' we do not think that the plaintiff bank can come into court holding on to both the old and the renewal note and claiming title to and liability under each, even though it be willing to renounce its claim upon the former after receiving back the latter. Its claim must rest in one or the other of these inconsistent rights. It can not claim both until its rights are adjudicated. Nor do we think that it should be able to compel the return of the property sued for, while renouncing for itself the agreement by which it claims the note and stock were delivered.

Judgment affirmed.

Wade, Q. J., and Luke, J., concur.


text:
    8766.
    Travelers Protective Association v. Belote.
   Jenkins, J.

1. A policy of life or accident insurance, issued upon the faith of representations covenanted to he true by the applicant, and which constitute the basis of the issuance and terms of the contract, is void if such representations materially vary from the truth in such manner as to change the nature, extent, or character of the risk. Supreme Conclave v. Wood, 120 Ga. 328, 336 (47 S. E. 940).

2. “Where soliciting and forwarding applications for policies of insurance was within the scope of the duties of an agent of an insurance company, and sueli agent undertook to prepare for another an application for insurance and wilfully inserted therein a false answer to a material question, he will be regarded in so doing as the agent of the company and not of the applicant, and the agent’s knowledge of the falsity of the answer will be imputed to the company. Although, in such case, the application was, by its terms, a part of the contract of insurance, and was signed by the person to whom the policy was subsequently issued, if the latter was fraudulently misled and deceived by the agent as to the contents of the application in the respects indicated, and was in fact ignorant that it contained the false answer in question, the company. will not be allowed to avoid the policy on the ground of a false warranty in relation to that answer.” Clubb v. American Accident Co., 97 Ga. 502 (25 S. E. 333).

3. But where true answers are thus given by the insured and false answers entered, in order that the insurer shall be estopped from urging the falseness of the answers so returned, it must appear that such perversion of the facts was the work of one acting as the agent of the insurer -in soliciting and forwarding applications.

4. The provision contained in the constitution of a fraternal benefit association, that “When application shall be made to the president and directors of any State division by at least twenty members in good standing in the national and State associations, whose permanent addresses are in any city or town in a State fully organized under the constitution and by-laws of the national association, they may grant a charter to organize a local post and deputize some member to properly organize said post and deliver the charter to the same to be governed by the following rules,” etc., means that the officials of a State division of the association may delegate some 'member of the order to organize a “local post” in any town or city within its jurisdiction upon the application of not less than “twenty members in good standing” in the order, who are residents of such place, and the member so delegated in accordance with the provisions of the constitution represents the association itself in organizing such members into a “local post” and in delivering to it the charter; but under such provision the member delegated for such purpose is not empowered to represent the association in filling out, receiving, and forwarding applications for new members. If at the time such “local post” is organized an application to join the order is made by one who in fact knows that he is beyond, the age for membership according to, the constitution, and, without the knowledge ■ of the applicant, the application is falsely filled out by such “delegated member” so as-to make the age of the applicant come within the rules prescribed by the order, and is in due course forwarded, through the regular State secretary of the association to its proper head officials at national headquarters, by whom it 'is in good faith passed upon and accepted, the act of such “delegated member” in falsely filling out the application can not be taken as the act of the association, he not then acting within the scope of his duties and authority. The fact that the insurer, without knowledge of these facts, continued to recognize and treat such person as a regular member of the association would not operate as a waiver or estoppel; nor could it be held that in so doing the insurer extended the authority of the person falsely filling out the application, by ratifying his unknown act.

Decided January 22, 1918.

Complaint; from city court of Yaldosta — Judge Cranford. March 30, 1917.

Woodward & Smith, for plaintiff in error.

E, K. Wilcox, contra.

5. The policy being void by reason of the materially false statement contained in the application, there could be no valid recovery thereon.

Judgment reversed.

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


text:
    8769.
    Evans et al. v. Stinson.
    Decided January 22, 1918.
    Complaint; from city court of Dublin — T. E. Hightower, judge pro hac vice. April 16, 1917.

      S. W. Sturgis, R. Earl Gamp, for plaintiffs.

      J. S. Adams, for defendant.
   Jenkins, J.

1. Without being specifically stated as such, the suit is manifestly based upon a common-law award, and, as such, is sufficient as against the demurrer filed. Littleton v. Patton, 112 Ga. 438 (37 S. E. 755). Had the petition shown that the submission contemplated ’ proceedings under the statute, and that the purpose of the suit as brought was an attempt to obtain an adjudication in accordance with such statutory procedure, it could not have been treated as a suit brought to enforce a common-law award. But where it does not appear that the proceeding was intended as statutory, the mere fact that some of such requirements may have been actually followed would not prevent the award being taken as good at common-law and sufficient as such to afford the basis of a suit. Train v. Emerson, 137 Ga. 730 (74 S. E. 241).

2. The award sued on is sufficiently definite to indicate the amount of the finding in favor of the plaintiffs and against the defendant.

3. Under the foregoing rulings, it was error to dismiss plaintiffs’ petition on demurrer.

Judgment reversed.

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


text:
    8788.
    Heaton v. Graham.
    Decided January 22, 1918.
    Lien foreclosure; from Hart superior court — Judge W. L. Hodges. March 3, 1917.

      A. S. BTcelton, for plaintiff.

      A. A. McCürry, for defendant.
   Jenkins, J.

1. While liens in favor of landlords furnishing supplies arise by operation of law from the relation of landlord and tenant, whenever the landlord furnishes any of the articles enumerated- in section 3348 of the Civil Code of 1910, for the purpose named therein (Buxton v. Hickman, 18 Ga. App. 260, 89 S. E. 380), by the express provision of the statute this lien extends only to “the crops of the year in which such things are done or furnished.” Civil Code (1910), § 3348. .

2. This case was submitted to the trial judge without the intervention of a jury, upon an agreed statement of facts, which showed that the mule and other articles had been furnished by plaintiff during the year 1915, and that the lien which he sought to foreclose was upon the crops of the year 1916. The court did not err in sustaining the counter-affidavit of the defendant, although the agreed statement of facts showed also that the relation of landlord and tenant as between the parties extended over the year 1916 under a separate contract, and that the articles which had thus been furnished during the previous year were of necessity for making the crops of both the years 1915 and 1916.

Judgment affirmed.

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


author: Wade, O. J.

text:
    8792.
    Garrett v. Foy & Adams Company et al.

   Wade, O. J.

1. A recovery was sought against several different defendants, and there was clearly a misjoinder of parties, as the abuse of legal process alleged was without any distinctly alleged knowledge or connivance on the part of the defendant upon whose oath the warrant issued, notwithstanding a general allegation in the petition that he and other defendants named, “by conspiring and acting together and doing the acts and things hereinafter complained of, have jointly and severally, wilfully, wantonly, and maliciously injured and damaged your petitioner in the sum of $25,000.” So far as appears from the petition, the process itself was legal, and the defendant who made the oath upon which it issued was not present at the time of the alleged unlawful arrest, detention, and assault and battery under color of such process, and nothing is alleged to show that he was in anywise a party to anything done by the other defendants after the issuing of the warrant, but to the contrary, from a fair construction of the petition, these things were done without his assistance or knowledge. Though a recovery might have been authorized under some of the allegations of the petition as against some of the defendants named therein, a joint recovery against all the defendants, even if these acts were sufficiently well pleaded, would not have been authorized under the allegations made, and therefore the demurrer complaining of a misjoinder of parties was well founded.

Decided January 22, 1918.

Action for damages; from city court of Tifton — Judge Price. April 7, 1917.

B. Q. Williford, Fulwood & Hargreit, F. Q. Boatright, for plaintiff. B. D. Smith, for defendants.

2. It did not affirmatively appear from the petition that there had been a termination of the proceeding or warrant sworn out against the plaintiff, and the allegation in his petition, that he had never at anytime “been taken before any magistrate, committing officer, or court for a hearing or trial upon said warrant or the charge which defendants alleged and claimed against,” and that there had not been “any indictment against him by a grand jury on said charge of misdemeanor or any other charge, although there have, been terms of superior court of Tift county at which the grand jury was empanelled, held since the issuance of said warrant, to wit, July term, 1914, December term, 1914, and July term, 1915)” did not constitute a sufficient compliance with the requirement that it must affirmatively appear that there had been a termination of the prosecution before any right of action would arise against the defendant. Waters v. Winn, 142 Ga. 138 (82 S. E. 537, L. R. A. 1915A, 601, Ann. Cas. 1915D, 1248). This ruling is not in conflict with Pickard v. Bridges, 7 Ga. App. 463 (67 S. E. 117) ; for there it was not only alleged that a term of the superior court of the county, with a grand jury empanelled, had convened and adjourned, without any further prosecution of the criminal charge, but it was also distinctly alleged that the warrant had been dismissed and the plaintiff discharged.

3. The court did not err in sustaining the demurrers and dismissing the petition.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    8804.
    Robinson & Eason v. Register.
   Jenkins, J.

This was an action for the contract price of cross-ties cut by the defendants from the plaintiff’s land. 'One bf the defenses to the suit was that the defendants were entitled to a credit in the amount of certain merchandise and cash furnished .by them, upon the verbal order of the plaintiff and his original undertaking, to one J. J. Bennett, after June 22, 1914. The court charged the jury as follows: “The next question is, whether or not a certain account made by Mr. Bennett ghould be allowed a credit by these defendants upon these ties. The burden of proof is upon the .defendants to establish that. Seems not to have been Mr. Register’s debt, but the debt of another, and the burden is upon the defendants to establish by a preponderance of the testimony the liability of Mr. Register upon that account. If you find that he is liable for this account, the same should be credited by these defendants. You have heard the testimony about this, and it is for you to say.” A verdict was returned in favor of the plaintiff. Held, that the charge as quoted above amounted to an expression of opinion by the court that the account was made by Bennett, aiid not by the plaintiff as an original undertaking on his part, as contended by the defendants; and this question being an issue between the plaintiff and the defendants, it was error for the court, in its charge, to assume that the account was “made by Bennett,” and that it “seems not to have been Mr. Register’s debt, but the debt of another,” the question at issue being, not whether Register had made himself legally “liable” for Bennett’s debt, which under the statute of frauds could only be done in writing, but whether or not the merchandise and cash had been furnished to Register upon his own credit, as. an original undertaking, as claimed by defendants.

Decided January 22, 1918.

Complaint; from city court of Valdosta — Judge Cranford. March 30, 1917.

Franklin & Langdale, for plaintiffs in error.

Patterson & Gopeland, contra.

Judgment reversed.

Wade, 0. J., and Luke, J., concur.


text:
    8831.
    DUDLEY v. ISLER.
    1. “An exception based upon the refusal of the court to award a nonsuit will not be considered, where, subsequently thereto, the case is submitted to the jury, and, a verdict being rendered against the defendant, a motion for a new trial is made which presents the complaint that the verdict is contrary to the evidence, and without evidence to support it.” Atlantia Goast Line R. Go. v. Blalock, 8 Ga. App. 44 (2) (68 S. E. 743) ; OoVb v. Pope, ante, 103 .(4) (93 S. E. 1029). '
    2. “The refusal to direct a verdict is not error in any case.” Roper Grocery Go. v. Raver, 8 Ga, App. 178 (68 S. E. 883) ; Western & Atlantic R. Go. v. Callaway, 111 Ga. 889 (2) (36 S. E. 967) ; Owen v. Palmour, 115 Ga. 683 (42 S. E. 53); Kelly v. Strouse, 116 Ga. 872 (3) (43 S. E. 280); Woodson v. Holmes, 117 Ga. 19 (43 S. E. 467) ; Moore v. Carey, 119 Ga. 91 (45 S. E. 976) ; Remington v. Hopson, 137 Ga. 95 (8) (72 S. E. 918).
    3. “To maintain an action of trover, the plaintiff must show title in himself, or the right of possession wrongfully withheld from him by the defendant.” Groover v. Her, 1 Ga. App. 77 (57 S. E. 906); Gilmore V.
      Watson, 23 Ga. 63; Palmour v. Durham-Fertilizer Co., 97 Ga. 244 (22 S. E. 931).
    4. Where a sale is relied upon by one as vendee thereunder, and it appears that possession is retained by the vendor, “something more than the parol agreement of sale relating to the transfer of the title and the possession is necessary to constitute constructive delivery. • The statute requires something more than mere words; it calls for acts, to dispense with a writing. It must appear that after the parol contract was made, some act was done within the intention of the parties indicating an assertion of dominion over the goods by the vendee. It is no objection that such act be done by the vendor as the agent of the vendee. The vendee may constitute his vendor his bailee to accept the goods, but such bailee must do some act oh the faith of the parol contract which characterizes his possession as that of agent or bailee of the vendee, or the vendee must do some act in recognition of the change in the character of the possession. ” Walker v. Malshy Co.,' 134 Ga. 399, 404 (67 S. E. 1039).
    Decided January 22, 1918.
    Trover; from city court of Morgan — Judge Miller. April 14, 1917.

      S. M. Oalhoun, for plaintiff in error.
   Jenkins, J.

Isler brought a suit in trover against Dudley for the recovery of a certain mule, and obtained a verdict against the defendant. The defendant made a motion for a new trial, on the general grounds, and on’the grounds that the court refused to grant a nonsuit, and refused to direct a verdict; the motion for a new trial was overruled, and he excepted. The evidence in the record presents the following case: Plaintiff testified that the mule in controversy was worth $125, and introduced in evidence a paper, 'a copy of which is as follows: “Jan. 23, 1913. Account against Bill Dudley. Due B. Isler, one hundred and twenty-five dollars and eighty-one cents, on one black mare mule name Lula, age 10 years. Due Nov. 15, 1913. [Signed] William Dudley.” The plaintiff first testified that this was the basis of his suit (we presume on the theory that it embraced a valid bill of sale to the property therein described), but later on he testified that when it became due the defendant could not pay it, and that subsequently, some time in January, 1915, defendant sold him the mule to pay this debt, and that it was on this sale that he based his suit. He admitted that the mule was never actually delivered to him, and testified that it remained in the possession of the defendant, under an agreement that the latter might keep it for the purpose of hauling lumber for himself. He further testified that he did not, at the time of the álleged sale, either turn over to the defendant his note, or take from him any bill of sale or other writing regarding the sale of the mule. The defendant denied the indebtedness represented by the paper introduced in evidence, and denied that he ever sold the mule to the plaintiff.

The paper introduced in evidence was insufficient in itself to show title to the mule in plaintiff, and especially is this true when it is taken in connection with the plaintiff’s evidence. Nor is there in the evidence anything sufficient to authorize the holding that a subsequent sale was effected between the parties; nothing being there relied upon other than the mere parol unexecuted agreement for the sale of property, the value of which exceeded fifty dollars. The verdict, therefore, being without evidence to support it, is contrary to law, and the trial court erred in not setting it aside and granting a new trial.

Judgment reversed.

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


text:
    8845.
    Proctor et al. v. Royster Guano Company.
   Jenkins, J.

1. “Blank indorsements of negotiable paper may always be explained between the parties themselves, or those taking with notice of dishonor or of the actual facts of such indorsements.” Civil Code (1910), § 5796.

2. Under the provisions of the code section quoted above, not only is it permissible for a technical indorser thus to show by parol that such indorsement was made solely for the purpose of passing title to the instrument (Bryan v. Windsor, 99 Ga. 176, 25 S. E. 268); but the right to explain by parol the real nature and intent of the contract as evidenced by a blank indorsement applies also to those whose indorsement is not essential to the negotiation of the note, and who therefore are not technical indorsers. Atkinson v. Bennet, 103 Ga. 508 (30 S. E. 599); Saussy v. Weeks, 122 Ga. 70 (49 S. E. 809).

3. In a suit by the payee of a promissory note signed in the name of a corporation as maker, a plea by certain individuals who had signed their names in blank upon the back of the note, to the effect that their, names were so placed upon the instrument “only for the purpose of perfecting title and passing title, and upon the distinct understanding that [theyj were not to be held liable thereon -in any way,” does not set up a good defense. Since the perfecting and passing of the title to the note could in no way be subserved by such an indorsement) the plea is not valid as going to show why the note was 1 signed for that. purpose without incurring liability; and since no bona fide reason is shown as to why it was signed without liability being intended, the mere unexplained denial of all liability does not amount to an effort to explain the true character and intent of the contract, but is merely an effort to avoid it in its entirety by setting up what is equivalent to a contemporaneous release, riot in writing, and without any averment that such agreement was fraudulently omitted from the contract. Mansfield v. Barber, 59 Ga. 851; Crooker v. Hamilton, 3 Ga. App. 190 (59 S. E. 722).

Decided January 22, 1918.

Complaint; from city court of Millen — Judge Dekle. April 3, 1917.

A. S,. Anderson, for plaintiffs in error.

Brinson & Hatcher, contra.

Judgment affirmed.

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


author: Luke, J.

text:
    8853.
    Southern Railway Company v. Miller.
    Decided January 22, 1918.
    Action for damages; from city court of Hall county — Judge Wheeler. April 33, 1917.
    ■ Miller bought mules at Miller Union Stock Yards, Atlanta, Ga., and at his direction the vendors delivered them to the Southern Railway Company to be shipped for him to Gainesville, Ga. In this suit he sought to recover damages on account of injuries to the mules. He alleged that the injuries were caused by breach of public duty of the railway company to provide a safe means of shipment and a safe, dry, and sanitary car for the shipment of the mules, and that the company was negligent, in that the car furnished had a defective roof, through which the .rain poured into the car, and that the mules contracted pneumonia on account of the defective condition of the car, through the negligence and tortious conduct of the railway company. The defendant in its answer denied the material allegations of the plaintiff, and set up certain stipulations of a contract of affreightment, signed in the name of Miller Union Stock Yards, as owner or shipper, and made in consideration of a reduced rate of freight, in which it is stated that the shipper “has examined and has found in good order and condition the car or cars provided by the railway company for the transportation of said live stock, and hereby accepts the same and agrees that they are, as thus provided, suitable and sufficient for said purpose.” The trial of the case resulted in a verdict against the railway company, its motion for a new trial was overruled, and it excepted.
   Luke, J.

This case is controlled by the decision of the Supreme Court in Central Ry. Co. v. James, 117 Ga. 832 (45 S. E. 223), and the decision of this court in Seaboard Air-Line Ry. v. McRae, 14 Ga. App. 94 (80 S. E. 211). The evidence did not authorize any recovery by the plaintiff, and the court erred in overruling the defendant’s motion for a new trial.

Judgment reversed.

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

E. A. Neely, J. 0. Adams, Ed. Quillian, O. B. Faulkner, for plaintiff in error. W. B. Sloan, contra.


text:
    8854.
    Deal v. Glenville Bank.
    Decided January 22, 1918.
    Motion to amend judgment; from city court of Beidsville — J. Y. Kelley, judge pro hác vice. April 2, 1917.

      A. S, Way, for plaintiff in error. H. C. Beasley, contra.
   Jenkins, J.

1. The ruling made in Elliott v. Wilks, 16 Ga. App. 466 (85 S. E. 679), is based upon the theory that while a judgment including attorney’s fees, as originally entered by the court, may be “susceptible” of the construction that it was entered without proof, as upon an unconditional contract in writing, still such construction shall not be taken as conclusive when the pleadings themselves are sufficient to have authorized a finding upon the question of attorney’s fees, and the court had jurisdiction to render judgment upon the implied admissions contained therein.

2. In Glennville Bank. v. Deal, 146 Ga. 127 (90 S. E. 958), the Supreme Court specifically held that the'original judgment in the instant case “was rendered by the court, without the intervention of a jury for principal, interest, and attorney’s fees, on the theory that the obligation to pay attorney’s fees was unconditional,” and that the portion of the judgment so separately rendered for attorney’s fees was illegal. A final adjudication having been thus made that under the language of the judgment it must necessarily have been rendered without proof, and as being upon an unconditional contract in writing, the question is res adjudieata, and the judgment could not be subsequently amended so as to have a contrary meaning and carry a different legal import.

Judgment reversed.

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


text:
    8860.
    Bank of Omega v. Findley.
    Decided January 22, 1918.
    Complaint; from Gwinnett superior court — Judge Cobb. April 37, 1917.

      I. L. Oakes, B. D. Smith, for plaintiff.

      0. A. Nix, for defendant.
   Jenkins, J.

The court in its charge fully and fairly submitted to the jury the question of whether, under the evidence, the cashier of the plaintiff bank, was acting as the agent of the plaintiff or as agent of the defendant, in collecting and applying the alleged payments; the jury found in favor of the defendant on that issue, and that the cashier in so acting was the agent of the plaintiff bank; the evidence authorized the verdict, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

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


text:
    8865.
    Gross v. Wilds.
    Decided January 22, 1918.
    Complaint; from Camden. Motion to dismiss.

      S. 0. Townsend, for plaintiff in error. J. B. Thomas, contra.
   Jenkins, J.

When a defendant against whom a verdict has been rendered makes a motion for a new trial, he can not properly, while the motion is still pending and undisposed of, bring to this court for review any ruling, order, or decision made by the judge during the progress of the case. Kelly & Jones Co. v. Moore, 125 Ga. 382 (54 S. E. 118); Duke v. Story, 113 Ga. 112 (38 S. E. 337); Carreker v. Thornton, 1 Ga. App. 508 (57 S. E. 988). It appearing from the bill of exceptions and the judge’s certificate attached thereto that the plaintiff in error is now seeking to review the ruling of the trial judge in striking the plea in abatement filed by the defendant, and that, upon the court’s subsequently directing a verdict for the plaintiff, a motion for new trial was made, and that at the time the bill of exceptions was certified the motion for a new trial was pending and undisposed of in the court below, the motion to dismiss the writ of error must be sustained.

Writ of error dismissed.

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


text:
    8879.
    Bank of Norwood v. Ray et al.

   Jenkins, J.

1. The owner and holder of a certificate of stock in a corporation ordinarily has a right to have the stock transferred to his name on the books of the corporation, and the illegal refusal of the corporation to permit the transfer makes the corporation liable in damages to the.owner of the stock for their refusal. Billon v. Sylvania Railroad Go., 8 Ga. Apj). 10 (68 S. E.-746).

Decided January 22, 1918.

Complaint; from Warren superior court — Judge Walker. May •2, 1917.

L. D. McGregor, for plaintiff in error. M. L. Felts, contra..

2. The measure of damages for the failure and refusal of a corporation, upon proper demand, to make a transfer and issue a new certificate to the purchaser and holder of stock, is the value of the stock at the time of the demand and refusal. Bank of Culloden v. Bank of Forsyth, 120 Ga. 575 (48 S. E. 226, 102 Am. St. R. 115).

3. Such a demand made upon the cashier of a bank, and by him refused under the direction of the president, must be taken as sufficient, especially where the by-laws specifically provide that “Shares- of capital stock may be transferred by endorsement of certificaté, and it surrendered- to the.cashier for cancellation; whereupon, a new certificate shall be issued to the transferee.” The fact that another by-law provided: “Said bank 'shall have a lien superior to all other liens upon all stocks in said bank, held or owned by any stockholder for any indebtedness due by said stockholder to the said bank, whether said indebtedness be an original undertaking, or as surety, or an endorser or guarantor, and there shall be no assignment or transfer of said stock in said bank except by the consent of the board of directors,” could not be taken as rendering such a demand inadequate, although, according to the by-law, such demand must, at least -under certain circumstances, be passed upon and approved by the directors.

4. While knowledge of the existence of a by-law of the bank creating a lien in its favor upon the shares of its capital stock for any indebtedness due it by the owner thereof should be imputed to a stockholder and director taking the same, still, if the bank, through its president and “practically all of the directors,” had knowledge of an actual assignment of such stock prior to the creation of the debt in its favor against the original holder, no lien in favor of the bank would attach to such stock as against such prior transferee to secure such subsequently incurred indebtedness.

5. Tn a suit for damages ag-ainst a bank for its refusal to transfer certificates of stock, a charge by the court that “plaintiffs would not be es-, topped from any recovery because the bank may not have had any surplus or undivided profits,” and that the question of whether the bank had any surplus or undivided profits would not affect the ease except for the purpose of ascertaining the value of the stock, could not, under any view of the law as provided by section 2348 of the Civil Code of 1910, and section 209. of the Penal Code, be held to be reversible error, where the verdict of the jury was such as necessarily to show that its finding, under the evidence, was to the effect that the bank in fact held surplus or profits sufficient to discharge the amount of the judgment without infringing upon the capital stock.

Judgment affirmed.

Wade, G. J., and Luhe, J., concur.


text:
    8882.
    Pearce v. Swift & Company Fertilizer Works.
    Decided January 22, 1918.
    Complaint; from Harris superior court — Judge Howard. April 9, 1917. -

      J. B.'Lunsford, J. Burruss Munn, Dulce Davis, for plaintiff in error. A. L. Hardy, contra.
   Jenkins, J.

1. Assuming that the contract of .suretyship or accommoda'tion indorsement sued on should- be taken as having been signed in blank, a plea merely denying all liability thereunder, without showing any bona fide reason why the indorsement was entered for a purpose other than that of incurring liability, can not be taken as an effort to explain the true nature and intent of the contract, as is permitted by section 5796 of the Civil Code (1910), and does not set up a good defense. See Proctor v. Royster Guano Co., ante, 617 (94 S. E. 821).

2. The subsequent release to an executed contract is in itself a contract, and a plea setting up such a defense must show that the release relied on was founded upon a consideration. Williams-Thompson Co. v. Williams, 10 Ga. App. 251 (73 S. E. 409).

3. The only remaining contention made in the brief of the plaintiff in error is that his plea as stricken by the trial judge on oral motion set up a valid defense by reason of the fraud alleged to have been perpetrated upon him by the plaintiff in procuring his indorsement, in that it was obtained by means of the statement then falsely made to him that a reduction in the price of the fertilizer would be thereby obtained by the principal. This defense is without merit, since in the particular amendment undertaking to set up fraud it is stated that when the indorser thus signed the note by reason of such statement then made, it had already been signed and delivered by the principal and accepted by the plaintiff.

4. No valid reason being assigned in the bill of exceptions pointing out error on the part of the trial judge in striking the plea upon oral motion, the judgment so rendered must be affirmed. Palmer v. Ingram, 2 Ga. App. 200 (58 S. E. 362).

Judgment affirmed.

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


author: Bloodworth, J.

text:
      8883.

    Pearce v. Swift & Company Fertilizer Works.
    Decided January 22, 1918.
    •Description and counsel as in case next preceding.
   Bloodworth, J.

1. The bill of exceptions assigns error on a ruling of the court allowing an amendment to the petition. This contention, not having been referred to in. the brief of the plaintiff in error, will be treated as abandoned.

2. The principles involved in the other assignments of error are settled by .the opinion in the ease of Pearce v. Swift, ante.

Judgment affirmed.

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


text:
    8898.
    Minor et al. v. Hull, administratrix.
    Decided January 22.
    — Rehearing denied January 31, 1918.
    Complaint; from city court of Atlanta — Judge Eeid. April 21, .1917.

      Gober & Jaclcson, W. I. Heyward, for plaintiffs in error.

      A. H. Davis, contra.
   Luke, J.

1. Suit may be instituted against the heirs of an estate, where the estate has been distributed to them without notice of an existing debt, and the creditor may compel them to contribute pro rata to the payment of his debt. Civil Code (1910), § 3998. Such suit does not necessarily have to be instituted in a court of equity, but may be instituted in a court of law. Jones v. Parker, 55 Ga. 11; Jones v. Parker, 60 Ga. 500. Therefore the city court of Atlanta was not without jurisdiction to hear, determine, and render judgment in this case.

2. The court did not err in overruling the demurrers of the defendants.

Judgment affirmed.

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


text:
    8902.
    Doctor Shoop’s Laboratories v. Davis.
    Decided January 22, 1918.
    Action upon bond; from "Whitfield superior court — Judge Tarver. April 14, 1917. ' •

      Glenn & House, A. L. Henson, for plaintiff.

      W. 0. Martin, W. H. Mann, for defendant.
   Jenkins, J.

1. Documents introduced in evidence on the hearing before the trial judge must be incorporated in the bill of exceptions seeking to review his judgment, or attached thereto as exhibits, duly and properly identified, or be embraced in án approved brief of evidence and brought up as record. Civil Code (1910), §§ 6140, 6141; Anderson v. Anderson, 124 Ga. 147 (52 S. E. 161); Sayer v. Brown, 119 Ga. 539 (46 S. E. 649); Griffis v. Baxter, 119 Ga. 612 (46 S. E. 840); Eubank v. Eastman, 120 Ga. 1048 (48 S. E. 426).

2. “Where there is no brief of evidence at all, and documentary evidence is merely referred to in the bill of exceptions, this court can consider the same only so far as the contents of the documents are disclosed by the recitals in the bill of exceptions.” Hancock v. McNatt, 116 Ga. 297 (42 S. E. 525), and eases there cited.

3. The bill of exceptions in this case does not sufficiently show the character of the documentary evidence introduced on the trial below to enable this court to determine whether or not the judgment excepted to was erroneous.

Judgment affirmed.

Wade, G. J., and Lulce, J., concur.


text:
    8906.
    Swint et al. v. Brown, Governor.
    Decided January 22, 1918.
    Forfeiture of recognizance; from Glascock.

      J. 0. Newsome, for plaintiffs in error.
   Jenkins, J.

Service of a bill of exceptions, or a waiver thereof, being essential to give this court jurisdiction of the case, and there being no return, acknowledgment, or waiver of service indorsed upon or annexed to the bill of exceptions in this case, the writ of error must be dismissed. Civil Code (1910), § 6160 (1); Crow v. Slate, 111 Ga. 645 (36 S. E. 858); Seliger v. Coker, 105 Ga. 512 (31 S. E. 185); Sowell v. Green, 40 Ga. 510; Platen v. Johnson, 54 Ga. 455; Ethridge v. Finney, 119 Ga. 147 (45 S. E. 974); Swafford v. Shirley, 7 Ga. App. 347 (2) (66 S. E. 1022); Cohen v. Blum, 17 Ga. App. 737 (88 S. E. 409).

IVrit of error dismissed.

Wade, C. J., amd Luke, J., concur.


text:
    8918.
    ATLANTA NATIONAL BANK v. BATEMAN.
    1. While a seller ordinarily can not convey a greater title than he owns, one of the exceptions to this rule is that the bona fide purchaser of a negotiable paper not dishonored will be protected in his title, though the seller had none. Civil Code (1910), §'4118. Thus, if such an instrument be complete in .form and duly signed, but prior to its delivery is feloniously taken by the payee, and prior to its maturity is indorsed and passed by the unlawful taker to a bona fide holder for • value, the innocent purchaser is protected in his title, and can recover against the maker. Sarrell v. National Bank, 128 Ga. 504, 506 (57 S. E. 869) ; 3 R. C. L. 1000, § 210.
    2. The defense of non est factum can be successfully pleaded to a suit on a negotiable promise to pay, even as against a bona fide holder who took it prior to maturity and without notice of such defense. Civil Code (1910), § 4286. Thus, a valid and completed contract can only be enforced against the maker in the form in which it-was executed, and if such a completed instrument be intentionally, fraudulently, and materially altered by a person claiming a benefit under it, the alteration voids the whole contract, at the option of the other party. Civil Code (1910), § 4296; Simons v. McDowell, 125 Ga. 203 (53 S. E. 1031); Sill v. O’Neill, 101 Ga. 832 (28 8. B. 996) ; Wilson v. Barnard, 10 Ga. App. 98 ( 2) (72 8. E: 943).
    3. One who signs his name to a blank paper and proceeds to entrust the ' signature to another, with authority given the latter to incorporate above the. signature a promissory note, so as to bind the signer, or one who signs an instrument having the form of a negotiable promise to pay, but in which are left spaces of such a character as manifestly indicate that the instrument is incomplete until they shall be filled out, is liable to one who in due course and by valid indorsement becomes a hona fide holder of the instrument, according to its actual tenor and effect, although the person to whom it was entrusted by the signer violated his trust and exceeded his authority in writing or completing the obligation; the theory being, so far as innocent holders in due course are concerned, that the delivery of such a signature for such a purpose constitutes the one who receives it the agent of the signer to write out and complete the note; and that the delivery of such a blank negotiable note, signed but incomplete, carries with it, so far as such innocent holders are concerned, an implied authority, on the part of the one so receiving it, to perfect the instrument as the agent of the signer. If loss be sustained by reason of a violation of such trust imposed, it must he borne by the maker or signer whose act thus made possible the loss, and not by an innocent taker of the instrument as subsequently written or filled out. Moody v. Threlkeld, 13 Ga. 55 (9) ; Hancock v. Empire Cotton Oil Co., 17 Ga. App. 170, 181 (86 S. E. 434) ; Wilkes v. Pope, 4 Ga. App. 36 (2) (60 S. E. 823) ; 3 E. C. L. 1011, § 220; 8 C. J. 730, § 1012; 2 Am. & Eng. Ene. Law (2d ed.), 254-258.
    4. If a note in the form of a negotiable instrument is signed in blank, with spaces left which could easily be filled out without exciting suspicion, and, while in such incomplete form and prior to any actual delivery, it is feloniously taken from the possession of the maker and completed, it does not follow that the instrument becomes a valid obligation even in the hands of a bona fide holder for value. Prima facie, where the note is both incomplete and not delivered, the maker is not liable, since the implied authority to complete it by filling in the blanks arises in favor of one receiving it by virtue of its delivery. But the question of actual liability in such a case should be determined by reference to whether or not, under the evidence, negligence of the maker in permitting the instrument to get into circulation constituted the proximate cause of the fraud, such as would estop him from denying a valid delivery. Hancock v. Empire Cotton Oil Co., supra.
    Decided January 22, 1918.
    Complaint; from Wilkinson superior court — Judge Park. April 30, 1917.

      D. 8. Sanford, for plaintiff.
   Jenkins, J.

This was a suit on a promissory note which was :.n the following form:

“$214.60. Atlanta, Ga. October 5th, 1914. Sixty days after date I promise to pay to the order of T. F. Goodwyn & Co. two hundred fourteen & 60/100 dollars, at Atlanta National Bank, at Atlanta, Ga., for value received, with interest after maturity until paid at eight per cent, per annum, with all cost of collection, including ten per cent, as attorney’s fees, if collected by law or through an attorney at law. Each of us, whether principal, security, guarautor, endorser, or other party hereto, severally waives and renounces each for himself and. family any and all homestead or exemption rights either of us or the family of either of .us may have under or by virtue of the constitution or laws of Georgia, or any other State or the United States, as against this debt or any renewal thereof; and each further waives demand, protest- and notice of demand, protest, and non-payment. Given under the hand and seal of each party. Due-.
“D. J. Bateman (L. S.) Address; Gordon, Ga.”
(Indorsed) “Pay to the order of the Atlanta National Bank. T. P. Goodwyn •& Co. T. F. Goodwyn & Co.”

The note as signed by the defendant was mainly printed, but certain portions of the original form were left blank for the purpose' of supplying names, dates, and amounts. These had been filled out before the note was taken by the holder who brought the suit, and there was nothing then to indicate to the taker that it differed in any way from what its condition was when signed. There was no alteration of any of the expressed terms of the instrument. The case was submitted to the judge on an agreed statement of facts, from which it appears: “The defendant about the first of October, 1914, went to Atlanta, Georgia, for the purpose of collecting about $700 that Goodwyn & Co. owed him. Goodwyn told the defendant that he did not have, the money, but could get it if he would sign a note, and he would take it to the bank and get it discounted and give him the money. The defendant then signed the note sued upon in blank. When the defendant signed the note there was nothing but the printed matter on the note, the blanks being filled after he signed the same. After he signed the note, as above stated, in blank, he decided not to deliver the same. Goodwyn then snatched the note up and put it in his safe; he requested him to give the note back to him, and he refused to do this. The bookkeeper locked the note in the safe and he could not get it. The defendant did not deliver the note, and never intended the note to be filled out, and did not authorize any one to fill out the blanks, and never received a cent of the money, and Goodwyn & Co. still owe him.” “The Atlanta National Bank is a bona fide holder for value before due.” From the evidence it appears that the note remained in the hands of Goodwyn & Co. for a period of about five days.'

The judgment of the able trial judge, in which he sets forth in an opinion the reasons for his holding, states that judgment was rendered in favor of the defendant for the reason that, under the evidence, the note signed in blank was neither completed nor delivered. No account was taken,of the question of negligence, and of whether the proximate cause of the fraud could be properly chargeable to the fault of the defendant in negligently permitting the note to get into circulation, so as to estop him from denying a valid delivery.

We thoroughly agree with the opinion held by the trial judge that it does not follow as a matter of law that a bona fide holder of a^negotiable note is necessarily protected, in his title where it appears that such instrument has never been actually delivered, and that it was materially incomplete when feloniously taken from the maker. .Under such circumstances the maker is prima facie not liable. Indeed, the so-called "uniform negotiable instrument law,” now of force in many of the jurisdictions of the country, specifically provides that "Where an incomplete instrument has not been delivered, it will not, if completed and negotiated without authority, be a valid contract in the hands of any holder, as against any person whose signature was placed thereon before delivery.” Crawford’s Annotated Negotiable Instruments Law, 42, § 15. But, under our view of the law, neither would it do to hold that the signer in blank of a negotiable promise to pay could in all eases and under all circumstances claim exemption from liability on such an instrument signed by him as against an innocent taker for value. Our opinion of the law, as expressed in the fourth headnote, is such as to raise in this case a question of fact as to whether or not the evidence shows that the defendant was ' guilty of such negligence in allowing the note to get into circulation as would furnish the proximate cause of the fraud and would operate to estop him from denying actual delivery. .The decision in the case of Linick v. Nutting, 140 App. Div. 265 (125 N. Y. Supp. 93), was rendered-in accordance with the terms of the negotiable instrument law of force in.New York, which contains the provision above quoted. In that case it was held that “The rule that a bona fide holder of an incomplete instrument, negotiable but for some lack capable of being supplied, has implied authority to supply the omission, and to hold the maker thereon, applies only where the maker has by his own act, or by the act of another authorized or invested with apparent authority by him, put the instrument in circulation as negotiable.” It was there held that the signer of a blank check does not owe to a third person, who is not bound to honor the check'when completed, the duty of guarding against the possibility of the' check being stolen and completed and negotiated by the thief, and'he is not liable to a third person on a blank check stolen and completed by the thief; but in the opinion in that case it is said: “None of' the circumstances connected with the theft of this paper appear, except that it was stolen, and that the persons guilty of the crime have been tried, convicted, and sentenced for the same. Plaintiff, therefore, can not be charged with negligence giving rise to an estoppel, unless a man is guilty of negligence in writing his name upon a piece of paper which by some possibility may afterwards be stolen from him, which paper afterwards comes into the hands of a third person who is an entire stranger to the transaction, with words written over the signature which are sufficient in form to make it a check or note. Actionable negligence involves, first, the existence of'a duty; second, the -omission to exercise-ordinary and reasonable care in connection therewith; and third, injury resulting in consequence thereof. In view of the contractual relation existing between the bank and its depositor, some duty of care may be owing to it. The bank, by the terms of its contract with him, is bound to pay on his account to the holder of paper bearing his genuine signature the amount called for, if such amount is to his credit. But a third person is under no obligation to honor this paper. ' He can take it or not as he pleases, and as a rule such paper is accepted in reliance upon the immediate transfer thereof. Trust Co. of America v. Conklin, 65 Misc. Rep. 1, 119 N. Y. Supp. 367. What duty, therefore, is owing to him? Again, at the risk of being charged with lack of ordinary care and prudence, must one guard against tile possibility of a crime being committed?” Further on in the opinion the court says: “We conclude, therefore, that the delivery of a promissory note by the maker is necessary to a valid inception of the contract. The possession of such a note by the payee or indorsee is prima facie evidence of delivery; but if it appear that the note has never been actually deliverd, and that without any confidence, or negligence, or fault [italics ours] of the maker, but by force or fraud, it was put in circulation, there can be no recovery upon it, even when in the hands of an innocent holder.”

In the English ease of Baxendale v. Bennett, L. E. 3 Q. B. Div. 525, dealing with a suit on an instrument stolen when incomplete, the opinion of the court sustaining the plea of the maker is based upon the theory that if the defendant was guilty of any negligence at all, it did not constitute the proximate and effective cause of the fraud, such as would estop the signer from denying delivery. In the case of Burson v. Huntington, 21 Mich. 416 (4 Am. R. 497), the pertinency of the question of such negligence was recognized, and in the opinion in that case the court said: “There may be cases where the culpable negligence or recklessness of the maker in allowing an undelivered note to get into circulation might justly estop him from setting up non-delivery, as if he were knowingly to throw it into the street, or otherwise leave it accessible to the public, with no person to guard against its abduction under circumstances when he might reasonably apprehend that it would be likely to be taken.” Thus, even under the rule of the negotiable instrument law containing the provision which we have quoted, apparently comprehensive in scope and intent, we find that the courts have not failed to take into account that the principle of negligence may be involved. A signer in blank of a negotiable instrument, even though undelivered, should not under all circumstances and conditions be permitted as a matter of law to shut his eyes to the known peril imposed upon the public by the felonious taking of such an instrument signed by him when it might be that under the facts of the particular ease it lay within his reasonable power and within his power alone to afford protection.

The judgment in this case being based entirely upon the holding that as a matter of law the defendant is not liable on the instru-ment, for the reason that the note had never been completed-or delivered by defendant, and there being no finding upon the question as to whether, under the evidence, the proximate cause of the fraud lay in the felonious taking of the instrument, or whether it was occasioned, by negligence on the part of the signer in permitting it to get into circulation when it was within his reasonable power to prevent it, this court will not pass upon that question as an original proposition, but remands the case in order that a finding may be had upon the issue raised by the evidence-as to whether, under all the circumstances, the defendant is or is not thus estopped from denying a. valid delivery of the instrument.’

Judgment reversed.

Wade, G. J., and Luhe, J., concur.


text:
    8921.
    STOKES v. WALKER, executrix.
    1. The term “net profits” means the gain that accrues after deducting losses and expenses.
    2. Promissory notes , are not payment until themselves paid, in the absence of an express agreement to the contrary.
    3. Where a purchaser of certain property agrees to give to the seller half of any net profits accruing from the resale thereof, there can not ordinarily be a recovery under the agreement until the proceeds of the resale have been reduced to money, or so appropriated as to constitute a complete equivalent to the reception of their money value.
    4. The petition failed to set forth a cause of action, and the court did not err in sustaining the demurrer and dismissing the petition.
    Decided January 22, 1918.
    Complaint; from Bibb superior court — Judge Mathews. May 4, 1917.
    This was a suit by J. F. Stokes against Mrs. M. S. Walker, executrix of the estate of B. S. Walker Jr., based upon the following contract: "Georgia, Bibb County. January 24th, 1912. I hereby agree to pay J. F. Stokes one half of my net profits accruing from the sale of six hundred and eighty-seven acres of land which Stokes has this day transferred to me under bond for title from B. T. Adams & Co. This agreement to be good for a period of five years from this date. [Signed] B. S. Walker, Jr. Witness, J. A. Jordan.” By paragraphs 2 to. 5 inclusive the plaintiff alleged that he transferred to Walker his bond for title from Adams & Co., by which they obligated themselves to convey to him the legal title to the 687 acres of land therein described, upon his paying to them $3,831.54, this being the same land referred to in the contract above quoted; that by this contract Walker obligated himself to pay this debt to Adams & Co., take title to the land, put it upon the market, sell it, and pay to the plaintiff half of the net profits; that Walker sold the land to one Yickers for $8,470, transferring to him the bond for title which had been transferred to Walker by the plaintiff, and causing Adams & Co. to execute and deliver a deed to the land to Vickers, and that after reimbursing himself for the Adams & Co. debt of $3,831.54, it left a net profit of $4,638.46, one half of which ($2,319.23) belonged to the plaintiff, and for the recovery of which the suit was brought. The sixth and seventh paragraphs of the petition show that the sale of the land to Vickers by Walker was consummated in the following manner: that Vickers, after having obtained title to the land as above stated, conveyed it to one B. C. Catheart, and received from him six notes, one for $900 due January 1, 1913, and five other notes for $1,517.50 each, the first becoming due November 7, 1913, and one on the 7th day of November each year thereafter, including the year 1917, and taking as security therefor a deed to secure a debt from Catheart, thereby vesting title in Vickers to secure the payment of the notes; that after having so obtained the notes and the deed to secure the debt, Vickers transferred and indorsed to Walker the first five of the notes, and therewith conveyed to Walker the legal title to the said land to secure the payment of the notes, and also conveyed to Walker a tract of land containing 35 acres, at an agreed valuation of $1,500. The petition further shows, that Catheart paid to Walker $900 in settlement of the note due January 1,1913; that after Walker’s death the defendant, having qualified as executrix of his will, brought suit in the city court of Macon against Catheart, and on December 19, 1914, obtained a judgment against Catheart for $6,070 principal, and $855.21 interest to date of judgment, and that thereafter she executed to Catheart, filed, and had recorded a deed to the said land, for the purpose of levying upon it under the judgment and execution, and on the first Tuesday in March, 1915, under and by virtue of the execution issued under said judgment, the land was sold at public outcry, and she became the purchaser, at a price not disclosed by the petition, after which she obtained from the sheriff a deed to the land. It is alleged that -the value of the land was $8,000. The defendant demurred to the petition generally, and demurred specially to the sixth and seventh paragraphs, on the ground that these paragraphs were irrelevant and immaterial. The court sustained the demurrer and dismissed the petition, and the plaintiff excepted. .

      L. D. Moore, for plaintiff.

      Hardeman, Jones, Park & Johnston, Harry 8. Strozier, for defendant.
   Jenkins, J.

(After stating the foregoing facts.) Counsel for the plaintiff contends that the legal effect of the contract sued upon was merely to constitute Walker the agent of the plaintiff, Stokes, for the purpose of selling the land, and, as compensation for his services, he was to receive half of the profits arising from the sale of the land, after paying off the Adams & Co. debt, and that, since no terms of sale are prescribed by the contract, in the absence of any agreement that Walker should sell upon a credit, the contract means that he should sell for cash; and that when Walker caused the legal title to be transferred from Adams & Co. to Vickers he thereby became immediately liable to Stokes, and it is immaterial to Stokes whether the sale to Vickers was for cash or upon credit, and the taking of the notes by Walker was, so far as Stokes was concerned, the equivalent to payment of the purchase price, and the net profits immediately accrued. We can not agree with this contention. While it is true that an agent empowered to sell for cash only has no authority to extend credit (Americus Oil Co. v. Gurr, 114 Ga. 624, 40 S. E. 780; Chapman v. Americus Oil Co., 117 Ga. 881, 45 S. E. 268), we do not.think that under the contract here involved the defendant was merely constituted the broker or sales agent of the plaintiff to sell the property for him; but, since the title itself to the property was passed by the plaintiff into defendant, and paid for by the latter, the only remaining requirement of the contract was that the defendant account to the plaintiff for half of the net profits accruing from a resale of the property, and, since no limitation as to the terms of the resale was made, none can be supplied, except that the defendant must exercise entire good faith in the use of his discretion. See Rogers-Ruger Co. v. McCord, 115 Wis. 261 (91 N. W. 685). So far as appears from the contract, Walker might sell in parcels and on various periods of credit; he might find it advisable to sell, in part at least, for something other than money, which in fact it appears that he did do, having taken as part payment a deed to 35 acres of other land, valued at $1,500. It is a well-settled principle of law that, in the absence of an express agreement to the contrary, promissory notes are not payment until themselves paid (Civil Code of 1910, § 4314; Brantley Co. v. Lee, 109 Ga. 478, 34 S. E. 574); and unless the notes can be considered as payment, the peti-' tion fails to show where any net profits ever accrued to Walker. The term “net profits,” as used in the contract sued on, has been construed to mean the gain that accrues after deducting losses and expenses. Tutt v. Land, 50 Ga. 339, 350; 5 Words and Phrases, 4781. In the light of the situation disclosed by the petition, the parties must have used the term “net profits” in the sense of the money, or its equivalent, actually received by Walker over the price paid by him to Adams & Co., after deducting any expenses or losses, and his duty to pay would not, therefore, arise unless it be shown that he reduced to money any such proceeds for the sale, or appropriated them to his own use. We do not think that the contract contemplated that the defendant should be bound to pay money until he had received it. Upon such construction of the agreement, plaintiff could not compel Walker to forestall or assume the contingencies of any credit he might in good faith find it necessary to give a purchaser, but must wait until in due course he had collected the money. This situation could in no wise be modified merely by the fact that such credit was evidenced by promissory notes payable to Walker. The giving of such notes affected no change so long as he did not convert them to his own use, but merely held them awaiting collection at maturity. See' Eogers-Euger Co. v. McCord, supra. The petition is not based upon a profit having accrued to defendant over and above the $3,831.54 paid by Walker to Adams & Co., by reason of the $900 received in cash, together with the property valued at $1,500, and •the valuation of the land as bought in by defendant at the sale had under the judgment obtained on the notes. The petition does not show at what price the land was thus bought in. The petition for the recovery of the net profits is based specifically upon the amount represented by the notes given for the property on its resale, and not for the amount shown to have been realized therefrom. Under our view of the law, the petition failed to show the realization of any net profits, and the court therefore did not err in sustaining the demurrer and dismissing the action.

Judgment affirmed.

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


text:
    8927.
    Glass v. Brittain Brothers Company.
    Decided January 22, 1918.
    Action for damages; from city court of Floyd county — Judge Nunnally. May 8, 1917.

      B. J. Mayer, Harris & Harris, for plaintiff.

      Wesley Shropshire, McHenry & Porter, for defendant.
   Luke, J.

Where it is alleged in a suit for damages for malicious prosecution that the prosecution was instituted by the agent of the defendant, it must be proved that the agent was at that time acting within the scope of his employment or at the direction or command of his principal. The plaintiff having failed to prove his case as laid in his petition, the court did not commit error in granting a nonsuit.

Judgment affirmed.

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


text:
    8556.
    DUCROS v. PEOPLES DRUG STORE.
    The court erred in overruling the demurrer to the defendant’s plea.
    Decided January 22, 1918.
    Complaint; from city court of Fort Gaines — Judge Turnipseed. February 12, 1917.

      P. 0. King, L. M. Bambo, for plaintiff.

      Zach. Arnold, A. L. Miller, for defendant.
   Bloodworth, J.

Eobert Ducros, as transferee for value and before due, brought suit on a note against “S. D. Coleman, trading under the name and style of the Peoples Drug Store.” This note was given to the Georgia Show Case Company on January 14, 1914, and became due July 14, 1914. It stated that it was one of a series of notes given for certain shelving, counters, cases, etc., described, and contained a clause as follows: “It is agreed that title to the property mentioned shall remain in the Georgia Show Case Company until fully paid for in cash, and that a retention of the property forwarded, after 30 days from date of shipment, shall constitute an acceptance, he a conclusive admission of all representations made by or for the Georgia Show Case Company, and void all its contracts of warranty, expressed or implied.” The defendant denied liability, denied that the plaintiff was an innocent holder for value, and further pleaded that the goods were purchased on January 3, 1913 (1914?), at which time he was induced by the fraudulent acts of the representative of the Georgia Show Case Company to sign a contract of purchase in which was a clause similar to the 30-days clause quoted above, and “that said agent represented to said defendant that the notes would follow the terms of the contract, and defendant, also relying on said representations of agent, signed said notes, and that he did not have an opportunity of fully examining said notes.” The notes were signed eleven days after the contract. The plea was a lengthy one, with numerous paragraphs containing allegations of fraud “made to induce the purchase of said goods.” The plaintiff filed demurrers, both general and special. The special demurrers attacked practically every paragraph of the answer, some of them as mere conclusions, some as being indefinite and lacking in fullness, others as “an attempt of the pleader to be relieved of his own negligence in failing to read the contract therein referred to, there being no sufficient reason pleaded in said paragraphs or elsewhere in said amendment, to excuse the defendant from reading,” and others “upon the ground that the same is an attempt to add to and vary the terms of the written contract sued upon,” and still others, including the entire original answer,.“upon the ground that by the terms of the contract sued upon, and to which .the defendant refers in his answer, the defendant was estopped to plead the falsity of any misrepresentations or the breach of any warranty, if he retained the property longer than thirty days after the same was shipped.” (The ground of the demurrer that the amended answer was not sworn to was specifically waived and abandoned in the brief of counsel for the defendant in error.)

1. The court erred in overruling the demurrer, and the subsequent proceedings were nugatory, because:

(a) The plea does not show that even when the contract was signed there was such an emergency as would excuse the defendant from reading it, nor does the plea show any confidential or fiduciary relation between the parties, nor was the failure of the defendant to read the contract brought about by any misleading artifice or device perpetrated by the. opposite party, amounting to actual fraud, such as would reasonábly prevent the party signing the instrument from reading it. Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (94 S. E. 892); Radcliffe v. Biles, 94 Ga. 480 (3) (20 S. E. 359); Jossey v. G. S. & F. Ry. Co., 109 Ga. 439, 446 (34 S. E. 664); Walton Guano Co. v. Copelan, 113 Ga. 319 (37 S. E. 411, 52 L. R. A. 268); Georgia Medicine Co. v. Hyman, 117 Ga. 851 (45 S. E. 238); Harrison v. Wilson Lumber Co., 119 Ga. 6 (2) (45 S. E. 730); Stoddard Mfg. Co. v. Adams, 122 Ga. 802 (50 S. E. 915). The note sued on was signed eleven days after the contract referred to above. There is no allegation in the plea that at the time the note was signed any emergency existed which caused the defendant to sign without reading, nor is there any allegation that at that time any fraud was practiced upon him. “One able to read, who executed a written contract without reading it, can not avoid liability thereon because he signed without knowing the contents of the contract, when' his so doing was not induced by any action or representation amounting to fraud on the part of the person with whom he was dealing.” Georgia Medicine Co. v. Hyman, supra; Parker v. Parrish, 18 Ga. App. 258 (2) (89 S. E. 381). Absolutely nothing in the way of defense is presented by the following allegations of the plea: “That at the time the said goods were shipped the Show Case Company sent the notes sued on to the First National Bank, and defendant had to sign same and pay the amounts named in original plea before he could inspect said goods; that said agent represented to said defendant that the notes would follow the terms of the contract, and defendant, also relying on said representations of agent, signed said notes, and that he did not have an opportunity of fully examining said notes.”

(b) In the plea there is no allegation that the defendant did not retain the property “after thirty days from date of shipment;” and the contract expressly provides that such retention “shall constitute an acceptance, be a conclusive admission of all representations made by or for the Georgia Show Case Company, and void all its contracts of warranty, express or implied.” Brooks Lumber Co. v. Case Threshing Machine Co., 136 Ga. 754 (2) (72 S. E. 40), and cases cited; Walker v. Malsby Co., 134 Ga. 399 (67 S. E. 1039); Chapman v. Skellie, 65 Ga. 124 (3); Case Threshing Machine Co. v. Cook, 7 Ga. App. 631 (67 S. E. 890); City of Moultrie v. Schofield’s Sons Co., 6 Ga. App. 464 (65 S. E. 315). Nor is there in the plea any allegation that the defects were latent and concealed, and of such a character that their existence could not be ascertained within said thirty days, and that the seller, knowing of such defects, fraudulently concealed them from the defendant. See Beasley v. Huyett & Smith Co., 92 Ga. 273, 274 (18 S. E. 420); Tinsley v. Gullet Gin Co., supra.

(c) The allegations in the plea as to fraud are not definite and specific, and are mere “glittering generalities.” “A plea alleging fraud, but not alleging specific acts constituting fraud, should be stricken on demurrer.” Carroll v. Hutchinson, 3 Ga. App. 60 (58 S. E. 309); City of Moultrie v. Schofield’s Sons Co., supra; Daniel v. Burson, 18 Ga. App. 35 (88 S. E. 745); Parrott v. Smith, 135 Ga. 339 (3) (69 S. E. 553).

3. Judging from certain statements made in the brief of counsel for the defendant, the allegations in the plea as to fraud, and the allegations as to the defects being latent and not discoverable by the defendant within 30 days from date of shipment, but known to the vendor and fraudulently concealed, are not as definite as the facts would authorize. We do not think it improper to call the defendant’s attention to the right to amend the plea at any time before the judgment of this court is made the judgment of the trial court. . Augusta Ry. Co. v. Andrews, 93 Ga. 706 (19 S. E. 713); Savannah, Fla. & W. Ry. Co. v. Chaney, 102 Ga. 814 (30 S. E. 437); Charleston & Western Carolina Ry. Co. v. Miller, 115 Ga. 93 (41 S. E. 353); Hillis v. Comer, 16 Ga. App. 653 (85 S. E. 931).

Judgment reversed.

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