text:
    7530.
    POWELL, for use, etc., v. SEABOARD AIR-LINE RAILWAY.
    1. There being no evidence that would authorize the jury to find that the cottonseed alleged to have been damaged by reason of failure of the defendant railway company to transport and deliver it'in a reasonable time was damaged to any extent in course of transportation on the defendant’s line, though it was admitted that there was unreasonable delay in transportation thereon, the court did not err in not giving to the jury an instruction (not requested) to the effect that if they determined that the cottonseed became damaged to some extent in the movement of the car on the defendant’s line, the plaintiff should recover the amount of the damage, regardless of whether the plaintiff or. the defendant was negligent in the delay which followed at the point of destination.
    2. It appearing from the initial carrier’s bill of lading, introduced by the plaintiff, that there were demurrage charges on the shipment when received by the defendant railway company, the court did not err in charging the jury that the defendant had the right to hold the freight for such charges, and not deliver it until payment of the charges or an agreement by the consignee to assume them.
    3-4. The evidence' authorized the verdict.
    Decided December 12, 1916.
    Action for damages; from city court of Savannah—Judge Davis Freeman. May 15, 1916.

      Osborne, Lawrence & Abrahams, David 8. Atlcinson, for plaintiff in error. Anderson, Gann, Gann & Walsh, contra.
   Broyles, J.

The 1st and 2d grounds of the amendment to• the motion for a new trial are merely amplifications of the general grounds, attacking the sufficiency of the evidence to support the verdict, and will be considered under the general grounds. The 3d ground of the amendment to the motion for a new trial is expressly abandoned in the brief of counsel for the plaintiff in error.

1. Complaint is made in the motion for a new trial that the court failed to instruct the jury that if they determined that the cottonseed became damaged to some extent by the delay in the movement of the car from Cordele to Savannah, the plaintiff should recover the amount of this damage, regardless of whether the plaintiff or the defendant was negligent in the delay in Savannah, the defendant having admitted that the movement from Cordele to Savannah was unreasonable, and the evidence having shown that the cottonseed would deteriorate unless handled quickly. The petition alleged and the evidence showed 'that there was a delay in this shipment of about two days on the line of the initial carrier, the Albany & Northern Kailway, for which delay it was not claimed that the defendant was liable; a delay of from three to four days on the Seaboard Air-Line Kailway between Cordele and Savannah, and a delay of about two weeks after the arrival of the ear in Savannah. There was no evidence which would have authorized the jury to say that the cottonseed became damaged to any extent while being transported from Cordele to Savannah. The court gave to the jury the law of the case, by covering all the substantial issues made by the pleadings and supported by the evidence, and therefore did not err, especially in the absence of a timely written request, in omitting to give the instructions mentioned above.

2. Exception was taken to the following charge of the court: “One of the chief differences between the parties in this case is as to the contention prevailing between the Southern Cotton Oil Company and the Seaboard as to deliveries—whether there was demur-rage collectible in advance, or advance charges in- the nature of demurrage, which the property brought along with it from the connecting carrier. Now I charge you, the defendant railroad company had a right to hold freight for advance charges of that character, and not deliver it until paid or an agreement is entered into between the parties for the assumption of them by the Consignee.” While there was no direct evidence as to whether the demurrage charges accrued before or after the cottonseed was loaded in the ear, yet when the evidence as to the manner in which the loading was done is considered, a fair inference therefrom is that the demurrage accrued after the loading was begun, and certainly that at least a portion of the charges so accrued. Moreover the bill of lading issued by the initial carrier, coming from the possession of the plaintiff and introduced in evidence by him, showed upon its face that there were demurrage charges on this car of cottonseed to the amount of $3; accordingly the defendant had the right to detain the car until payment of that amount, or until agreement by the consignee to pay it. Georgia Railroad v. Murrah, 85 Ga. 343 (11 S. E. 779). See also Seaboard Air-Line Railway v. Southern Flour & Grain Co., 138 Ga. 604 (75 S. E. 654). Under such circumstances the plaintiff is estopped from denying the correctness of such charges. Under the Civil Code, § 3360, and the rule of the Eailroad Commission of Georgia, known as Storage Eule No. 11, there was a lien upon the cottonseed in favor of the railroad company for these demurrage charges, and the court did not err in giving the instructions complained of.

3. It is complained that the verdict is contrary to law and the evidence because it appears, from the evidence, that there was an agreement between the consignee and the defendant that all cars of cottonseed billed to the consignee were to be delivered without regard to any freight or demurrage that might be charged against such cars, and because the evidence was insufficient to show that this agreement did not apply (as contended by the defendant) to cars upon which demurrage charges had accrued before the arrival of the car in Savannah, and because the evidence was insufficient to show that the defendant had notified the consignee of the arrival of the' car in question, carrying demurrage charges. While it was undisputed that the above-mentioned agreement had existed for some time, it is also undisputed that the defendant, subsequently to that agreement, adopted a different rule, whereby it did not deliver to the consignee cars which came in with demurrage charges, unless the consignee, after being notified of the arrival of the ears carrying such charges, specifically agreed to pay the same. There was, however, an acute conflict in the evidence as to whether this last-mentioned rule was in existence at the time the car in question arrived in Savannah, and as to whether the defendant had promptly notified the consignee of the arrival of the car and of the demurrage charges thereon. There was enough evidence, however, to authorize the jury to find that the latter rule was in effect at the time of the arrival of the car in Savannah, and that the consignee had been promptly notified by the defendant of the arrival of the car and of the demurrage charges thereon.

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

Judgment affirmed.

Hodges, J., absent.


source: Caselaw Access Project

author: Hodges, J. Per Curiam.

license: Public Domain

text:
    7616.
    TERNEST v. GEORGIA COAST AND PIEDMONT RAILROAD COMPANY.
    The action was for personal injuries received more than two years before it was filed; and the allegations as to a former suit on the same cause of action, which was brought within the period of limitation and “was dismissed,” and as to its renewal in this action and the right of renewal, were not sufficient to show that the case came within section 4381 of the Civil Code (1910), which provides that “If a plaintiff shall be nonsuited, or shall discontinue or dismiss his case, and shall .recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case.” The court therefore did not err in dismissing the action on demurrer on the ground that it was barred by the statute of limitations.
    Decided November 16, 1916.
    On rehearing, December 19, 1916.
    Action for damages; from city court of Reidsville—J. Y. Kelley, judge pro hac vice. June 7, 1916.

      Oliver & Oliver, for plaintiff.

      Hitch & Denmarlc, for defendant.
   Hodges, J.

Siiit was brought against the railway company for personal injuries, alleged to have been received in 1909. The present action is a renewal of the original suit, and was filed June 3, 1912. The defendant demurred on the ground that the action was barred by the statute of limitations. The action, not having been brought within two years after the right of action accrued, was barred (Civil Code, § 4497); unless the operation of the statute of limitations was arrested under section 4381 of the Civil Code. Under that section, if a plaintiff is nonsuited, he has the right of renewal in six months; if he discontinues or dismisses his case he has the same right. A dismissal for want of prosecution is held to be a discontinuance, within the meaning of the statute (Rountree v. Key, 71 Ga. 214); but where there has been a dismissal by the court on demurrer, the right of renewal does not exist. Kimbro v. Virginia &c. Ry. Co., 56 Ga. 185 (3). For the purpose of showing that he was entitled to renew the action, the plaintiff amended the second suit by adding the following allegation: “Petitioner shows that before filing the suit filed in office June 3rd, 1912, petitioner had filed a former suit on the same cause of action on September 24th, 1910, which suit was dismissed upon a date at present unknown to petitioner, but which will appear upon the docket of the city court of Reidsville; that after the said suit was dismissed, and within the period prescribed by law, petitioner, as he had a right to do, renewed his suit in the city court' of Reidsville on June 3rd, 1912.” It will be observed from the above that it is not alleged how the suit was dismissed; and pleadings are to be construed most strongly against the pleader. If dismissed on general demurrer there was no right of renewal under the statute. If dismissed for want "of jurisdiction by the court there was no right of renewal. The allegation of the right of renewal was a-mere conclusion of the pleader. There is nothing in the allega•tion upon which the court could determine that the renewal suit was within the statute. “Where, to prevent the bar of the statute of limitations, the plaintiff relies on the privilege of renewal within six months, conferred by the Civil Code, . . a copy of the record in the first suit should be attached, so that the court may determine, as a matter of law, whether the two suits were for the same cause of action and between the same parties. The court should have before it the petition, rather-than the conclusions of the pleader thereon, for the further reason that it should be in position to determine whether the first suit was itself brought within the statute, and in a court having jurisdiction of the subject-matter.” Atlanta, K. & N. Ry. Co. v. Wilson, 119 Ga. 781, 784 (47 S. E. 366). It is alleged that the original suit “was dismissed upon a date at present unknown to petitioner, but which will appear upon the docket of the city court of Reidsville.” The record does not show what appears upon the docket of the city court of Reidsville. If the plaintiff dismissed or discontinued his case the day after filing it, the renewal suit is barred; and the petition alleges nothing to the contrary. The allegation that “within the period prescribed by law, petitioner, as he had a right to do, renewed his suit” is a mere conclusion. Enough does not appear to enable the court to determine the question whether the present suit was saved.by the renewal statute; in which respect this ease differs from the case of Atlanta, K. & N. Ry. Co. v. Wilson, supra, where it was held that enough did appear in the record to save the case. There was no error in dismissing the petition on demurrer.

on rehearing.

Per Curiam.

Enough appears in the petition, however, to suggest that the plaintiff therein is entitled to relief, provided that the proper allegations are made; and, accordingly, leave will be granted for .that purpose. The judgment is affirmed, with direction that the plaintiff in the court below be allowed to amend his petition when the remittitur from this court is entered upon the minutes of that court.

Judgment affirmed, with direction.

Wade, O. J., and Broyles, J:, concurs. Hodges, J., died pending the motion for rehearing.


author: Wade, C. J.

text:
    7200.
    LYNCHBURG SHOE COMPANY v. GLADNEY.
    in attorney holding a client’s claim for collection can not, without special authority from his client, bind the client by an agreement to credit on the claim an amount due by the attorney, or to assume and credit thereon the debt of another to the client’s debtor.
    Decided December 21, 1916.
    Complaint; from city court of Carrollton—Judge Beall. November 23, 1915.

      Buford Boykin, Raymond Robinson, for plaintiff.

      John W. Overton, Leon Hood, for defendant.
   Wade, C. J.

According to the testimony of the defendant, the indebtedness of a tenant to the defendant was to be assumed by the attorney at law who held for collection the claims of the plaintiff, as the tenant wished to terminate his contract relations with the defendant and to become a tenant of the attorney; and this amount, together with an additional amount due the defendant by the attorney himself on his individual note, was, by agreement between them, to be credited on the plaintiff’s claims; and, according to the testimony of the defendant, the attorney offered to pay the defendant the amount due by the tenant, but the defendant refused this offer and directed that the said amount, as well as the amount due on the attorney’s individual note, be applied as a credit on the claims of the plaintiff then held by the said attorney for collection; but the defendant further testified that he did not know whether the attorney “had any money with him or not,” and the evidence did not disclose that any cash was tendered, or even exhibited, at the time the alleged agreement was made, or • that any money or other thing of value to the plaintiff was ever in fact delivered to the attorney, for the benefit of the plaintiff. “Without special authority, attorneys can not receive anything in discharge of a client’s claim but the full amount in cash.” Civil Code, § 4956. See also Patterson v. Childs, 9 Ga. App. 646 (72 S. E. 45); Bell v. Kwilecki, 11 Ga. App. 9 (74 S. E. 444); Kaiser v. Hancock, 106 Ga. 217 (32 S. E. 123). “As a general rule a special agent or attorney to collect a debt is not authorized to receive anything as a payment thereon except actual cash, and a payment to him by settling his individual debt, or turning over property to be used by him, would not be a payment to his principal.” Walton Guano Co. v. McCall, 111 Ga. 114, 116 (36 S. E. 469), and cases there cited. There was no evidence that the attorney in this ease had any special authority to accept, as payment to the plaintiff, the attorney’s own indebtedness, or a transfer of an amount due the defendant by another, and it is apparent that, as in Walton Guano Co. v. McCall, supra, the purpose of the defendant was to obtain a credit on his indebtedness to the plaintiff by, in effect, conveying “to the agent property for his own use, and not that of his principal; and, of course, without ratification of the principal, such method of payment would not constitute a valid credit upon the note.” There was no evidence of ratification. The evidence did not authorize the verdict, nor did it support the plea which set up a payment in cash to the collecting agent of the plaintiff; and therefore the trial judge erred in overruling the motion for a new trial. Judgment reversed.

Broyles, J., concurs.


author: Bboyles, J.

text:
    7637.
    Crawford v. The State.
   Bboyles, J.

1. Where error is assigned upon various excerpts from the charge of the court, and upon the failure of the court to give certain instructions to the jury, and it is not shown that the alleged errors in the “excerpts” were not cured in other "portions of the charge, or that the principle of law which the court failed to give was not substantially covered by the charge given, and the entire charge is not brought up, this court is unable to determine whether the trial judge erred in these particulars; and where it does not appear, from the bill of exceptions or from the record brought up, that the charge of the court was reduced to writing, or was of file in the office of the clerk of the court below (Penal Code, §§ 1056, 1057), this court will not order it sent up under section 6149 (4) of the Civil Code. Perdue v. State, 17 Ga. App. 299 (86 S. E. 661).

2. Under the facts of the case no error is shown in the admission of the fi. fa. in evidence over the objection that the entry thereon "was too indefinite, the entry being: “I have this day levied the within fi. fa. on all the cotton and corn on J. J. Crawford’s place in B. D. Crawford’s possession. This 11th day of November, 1915. P. S. Sticher, L. C.”

Decided December 21, 1916.

Accusation of larceny; from city court of Carrollton—Judge Beall. May 30, 1916.

J. J. Reese, Smith & Smith, for plaintiff in error.

G. R. Roof, solicitor, contra.

3. There was some evidence which authorized the verdict, and, it having been approved by the trial judge, this court is without authority to interfere. Judgment affirmed.

Wade, O. J., concurs.


author: Broyles, J.

text:
    7654.
    Walker v. The State.
   Broyles, J.

1. It does not appear from the record that the trial judge abused his discretion in refusing to grant the defendant’s motion to postpone the case for two days for the purpose of allowing his counsel to prepare a plea of former jeopardy, it being recited" in the bill of exceptions that “the court declined to grant the postponement asked, but did postpone the trial until the defendant’s attorney could prepare and did prepare a special plea which appears of record in said case,” and it further appearing from the bill of exceptions and the record that the “special plea” so prepared was a plea of former jeopardy.

2. Upon a trial in a criminal case where it develops, after the jury has been empaneled, but before any of the evidence has been submitted, that one of the jurors is'related within the prohibited dgree to the prosecutor, the right to set him aside and to continue the case is well settled. In such a case it is not necessary to declare a mistrial. Armor v. State, 125 Ga. 3 (53 S. E. 815). See also Penal Code, § 999 '(4) ; Jackson v. State, 51 Ga. 402. It follows that where one is being tried for a criminal offense before a judge who by consent is exercising the functions of both judge and jury, and where during the trial, but before any evidence upon the merits of the case has been heard, the judge discovers that by reason of his relationship to the prosecutor he is disqualified to try the case, and announces this from the bench, and on his own motion, hut without any objection from the defendant, enters an order reciting his disqualification and remanding the case for trial before another judge, a plea of former jeopardy, filed by the defendant on being arraigned before the last-mentioned judge, is subject to be stricken on an oral demurrer. In the instant case the trial judge was both judge and jury, and from the record it is clear that he was disqualified as a juror to try the case, and it is equally clear that the correct thing to do was to set himself aside and to procure a judge who was. qualified to try the case. When the judge held himself disqualified and so announced in open court, the defendant by his silence presumably acquiesced in this proceeding. This ruling is not in conflict with the decision in Oliveros v. State, 129 Ga. 237 (47 S. E. 627, 1 Ann. Cas. 114), relied on by counsel for the plaintiff in error; for in that case a mistrial was declared by the trial judge on his own motion and over the protest of the accused, while in the instant case no mistrial was declared, but the case was continued merely for a few hours, until a qualified judge could be secured, and to this the accused made no objection of any kind until he roas arraigned before the latter judge. The proceeding in this case was in the nature of a mistrial, though not technically in that form. In view of the fact that there was no jury in the case, and under the other facts thereof, it was not necessary to declare a mistrial, but it was the right and the duty of the judge, upon his disqualification appearing, to decline to • proceed with the trial. There can be no mistrial, in the usual sense of that term, where a criminal case is tried by a judge without a jury. Anything that would authorize a judge to withdraw a ease from a jury and declare a mistrial would authorize him, when trying a criminal case without a jury, to withdraw the ease from his own further consideration without declaring a mistrial. A defendant can not voluntarily consent for a judge to try his ease without the intervention of a jury, and then claim “former jeopardy” where the judge, upon learning that he was disqualified to try the case, and before any evidence upon the merits of the case had been heard, declined to do so and secured a qualified judge to try the case. Judgment affirmed.

Decided December 21, 1916.

Accusation of larceny; from city court of Macon—Judge Mathews presiding. June 12, 1916.

Sol. L. Wiseberg, for plaintiif in error.

John P. Ross, solicitor-general, contra.

Wade, O. J., concurs.


text:
    7829.
    Mallard v. The State.
   Broyles, J.

1. Ordinarily, before one can be legally convicted of the offense of perjury, there must be two witnesses to prove the charge, or one witness with corroborating cireumstan'ces. Penal Code, § 1017. This rule, however, applies only to cases in which oral evidence is relied on to convict, and where one oath is placed against another. In such a ease it is essential that the “equilibrium of the evidence” should be overcome by still another oath, or by corroborating circumstances. The rule does not apply to a case (like the one at bar) where the proof of the crime is necessarily based upon circumstantial evidence. United States v. Wood, 14 Peters, 439 (19 L. ed. 527); People v. Doody, 172 N. Y. 165 (64 N. E. 807). Therefore it was not error for the court (especially in the absence of a timely written request) to fail to instruct the jury that “to convict of the offense of perjury, the testimony of two witnesses, or of one witness supported by such circumstances of corroboration as the jury may consider necessary for that purpose, is required before you would be authorized to convict the defendant.”

Decided December 21, 1916.

Indictment for perjury; from Worth superior court—Judge Cox. June 3, 1916.

B,agan & Maire, for plaintiff in error.

B. 0. Bell, solicitor-general, ,F. A. Hooper & Son, J. H. Tipton, Perry & Williamson, B. S. Foy, O. W. Monlc, Mark Tison, contra.

2. In view of the counter-showing made by the State, it does not appear that the trial judge abused his discretion in overruling the ground of the motion for a new trial based upon alleged newly discovered evidence.

3. There was no error in admitting in evidence the original deed about which the defendant was alleged to have committed perjury, it being plain that the discrepancy between the original deed and the alleged copy in the indictment was a mere clerical error in setting out a wrong name in one portion of the indictment, the correct name being given in another part of the indictment; nor was the original deed inadmissible in evidence for the reason that it had on its back a memorandum of record which was not set forth' in the indictment. The court properly held this discrepancy to be immaterial. Nor was the same paper inadmissible because it was a land deed, had no official witness to it, was not recorded, and did not show in what county it was executed. The nature of the paper about which the alleged perjury was committed ivas wholly immaterial. None of these objections could affect the validity of the deed, or prevent it from being put upon record, upon the proper affidavit being made; and, in determining whether perjury was committed as to the deed, it was immaterial whether it was recorded or unrecorded.

4. Whether the State shall be allowed, after the evidence for the defense is all in, to introduce further evidence, which is not strictly in rebuttal, is a matter within the sound legal discretion of the court. In this case it does not appear that the judge abused his discretion in refusing to rule out the testimony complained of in the 6th ground of ’the amendment to the motion for a new trial.

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

Judgment affirmed.

Wade, O. J., concurs.


text:
    7593.
    SEABOARD AIR-LINE RAILWAY v. LUKE.

      A bill of lading issued by a common carrier is a “contract in writing” within the meaning of section 4361 of the Civil Code, which provides that “all actions upon promissory notes, bills of exchange, or other simple contracts in writing shall be brought within six years after the same become due and payable;” and, as such, it is binding upon the carrier and the shipper. It is also binding upon the consignee, or the “order-notify” consignee, where he purchases the bill of lading, makes no objection to its provisions, presents it to the carrier, and obtains possession of the goods shipped thereunder. Under such circumstances the provisions of section 4362 of the Civil Code do not apply, and he is bound by the written contract, as evidenced by the bill of lading, although it is not signed by him.
    (a) It follows that a suit is not barred because not brought within four years from the accrual of the right of action, where it is a suit by a common carrier, against an “order-notify” consignee, to recover an undercharge of freight due on an interstate shipment, the contract sued upon being evidenced by a bill of lading issued 'by the initial carrier, signed by the shipper, and purchased by the defendant, who made no objection to any of its provisions, and who secured the goods shipped thereunder by presenting the bill of lading to the terminal carrier.
    Decided December 21, 1916.
    Certiorari; from Irwin superior court—Judge George. May 17, 1916.
    In November, 1909, J. C. Luke bought a carload of automobiles from the Beo Motor-Car Company, at Lansing, Michigan. When the car was shipped the automobile company obtained from the Lake Shore Bailroad Company, the initial carrier, a bill of lading of the "order-notify” type. The shipment was consigned to the order of B. M. Owens & Co., notify J. C. Luke, Ocilla, Georgia, and was routed by the shipper over various connecting railroad lines, the last of the carriers being the Seaboard Air-Line Bail-way. The bill of lading was signed by the shipper and was endorsed by B. M. Owens & Co., the consignees, and a draft upon J. C. Luke, the "order-notify” consignee, was drawn and attached to the bill of lading and forwarded through regular banking courses to Ocilla, Georgia. Luke purchased the bill of lading, accepted it, presented it to the Seaboard Air-Line Bailway, and demanded the freight called for in the bill, and it was delivered to him. The evidence for the plaintiff shows that through a mistake of the railroad agent there was an undercharge of $17 in the freight charges on the shipment. A demand was made upon Luke to pay this amount, and, upon his refusal to do so, the Seaboard Air-Line Bailway brought suit for it in a justice’s court, on a simple contract in writing as evidenced by the bill of lading, a copy of which was attached to the summons. The case was tried before the justice, and he decided in favor of the carrier. The defendant appealed to a jury in the justice’s court and obtained a verdict in his favor. A petition for certiorari -was sanctioned, which upon review was overruled and dismissed by the judge of the superior court on the ground that the action was barred by the statute of limitations, it having been brought more than four years after the right of action accrued. To this judgment the carrier excepted. The suit was brought within six years from the time of the shipment.

      Rogers & Rogers, for plaintiff. Melvin Meelcs, for defendant.
   Broyles, J.

(After stating the foregoing facts.) Section 4361 of the Civil Code .provides that “All actions upon promissory notes, bills of exchange, or other simple contracts in writing shall be brought within six years after the same become due and payable.” A bill of lading is a written contract. McElveen v. Southern Railway Co., 109 Ga. 249 (34 S. E. 281, 77 Am. St. R. 371); 1 Hutchinson on Carriers (3d ed.), § 157. The particular bill of lading in this case provides as follows: “It is mutually agreed as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time-interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained (including conditions on back hereof) and which are agreed to by the shipper and accepted for himself and his assigns.” On the back of this bill of lading is the following provision: “Sec. 8.'The owner or consignee shall pay the freight, and average if any, and all other lawful charges accruing on said property.” Under this, contract it is clear that the consideration thereof, as regards the railroad company, was the freight to be paid for the transportation of the shipment, and that the obligation to pay this freight was in writing. The obligation to pay the legal rate of freight is binding, under the provisions of the bill of lading, irrespective of whether or not the specific rate of freight is stated in the bill of lading, since it is stated therein that it is received subject to the classifications and tariffs in effect on the date of its issue. Upon an interstate shipment the freight charges for the transportation of the goods ar$ fixed by the schedule of rates and joint, tariffs filed and posted in accordance with the act of- Congress of June- 29, 1906, known as the “Hepburn act;” and though a common carrier, by mistake or otherwise, delivers goods upon the payment of a lower rate than that stated in the schedules, the carrier may thereafter demand of the shipper the difference between the rate collected and that which should have been collected, and upon his refusal to pay may maintain an action therefor. Georgia Railroad v. Creety, 5 Ga. App. 424 (63 S. E. 528); Central of Georgia Ry. Co. v. Curtis, 14 Ga. App. 716 (82 S. E. 318); Great Northern Ry. Co. v. O’Connor, 232 U. S. 508 (34 Sup. Ct. 380, 58 L. ed. 703). Under 'these authorities it is clear that the amount to be paid for freight charges on every shipment is -absolutely fixed, not by the rate stated in the bill of lading, but by the schedules and tariffs in effect on the date when the bill of lading is issued. It is also clear that the agreement to pay the proper freight charges is embodied in and is a part of the bill of lading, because it specifically recites that the shipment is received subject to the classifications and tariffs in effect on the date of the issue of the original bill of lading, this statement evidently referring to the classifications and tariffs mentioned in the decisions just cited, and to which the shipper agreed for itself and its assigns or transferees. According to the terms of the bill of lading the shipper agreed, for itself and its assigns or transferees, that the owner or consignee should pay the freight,—not necessarily the specific rate stated in the bill of lading, for that rate might be erroneous and in that contingency the agreement would be void, but the legal rate of freight as fixed by the schedules and tariffs as aforesaid. Such tariffs are a part of the bill of lading, and, therefore, a part of the written contract between the parties. Chicago, Rock Island & Pacific Ry. Co. v. Cramer, 232 U. S. 490 (34 Sup. Ct. 383, 58 L. ed. 697).

In an interstate shipment the bill of lading is the contract which controls the entire transaction. Georgia, Florida & Alabama Railway v. Blish Milling Co., 241 U. S. 190 (36 Sup. Ct. 541, 60 L ed. 948). An “order-notify” consignee who purchases the bill of lading, makes no objection to its provisions, and receives the goods shipped thereunder is bound by all of its provisions. He stands in the shoes of the shipper, being his transferee. He is more than a mere “naked” assignee. See Paxson v. Warfield, 6 Ga. App. 315 (65 S. E. 34); Boatmen’s Savings Bank v. Western & Atlantic R. Co., 81 Ga. 221 (7 S. E. 125); Askew v. Southern Ry. Co., 1 Ga. App. 79 (58 S. E. 242); 4 R. C. L. 10, § 13. The terms of the contract or bill of lading are binding upon the “order-notify” consignee although not under his hand. The hill of lading discloses that the shipper signed it and that the contract was in writing, and it is not necessary that it should also be signed by the “order-notify” consignee. Where a writing sets 'forth the contract between the parties, the contract is binding although not under the hand of the party to be charged. In such a case section 4362 of the Civil .Code does not apply, but section 4361 states the true rule. Atlanta, Knoxville & Northern Ry. Co. v. McKinney, 124 Ga. 929, 937 (53 S. E. 701, 6 L. R. A. (N. S.) 436, 110 Am. St. R. 215); Hill v. Hackett, 80 Ga. 53, 54 (4 S. E. 56). This ruling is not in conflict with the decisions in Southern Express Go. v. Sinclair, 135 Ga. 155 (68 S. E. 1113), and cases there cited, and Small v. Jones, 138 Ga. 521 (75 S. E. 605), the facts in those cases clearly distinguishing them from the case at bar.

The question of whether the suit was barred by the statute of limitations is practically the only point raised in this court. The record discloses that the true rate of freight over the route the shipment moved (and which was the route as given in the bill of lading) was $2.03 per cwt., that the total amount of the freight due was $203, and that the.amount actually paid by the defendant, the “order-notify’-’ consignee, was $186. It follows that there was an undercharge of $17, the amount sued for. The question as to whether, under such circumstances, the carrier would have the light (under section 4360 of' the Civil Code) to bring suit within twenty years after the right of action accrued is not passed upon, the answer to that question not being necessary for the determination of this case.

The court erred in overruling the certiorari and in failing to render a final judgment for the plaintiff.

Judgment reversed.

Wade, G. J., concurs.


text:
    6188.
    THOMAS v. THE STATE.
    1: There was testimony from which the court could have found that an original letter from the prosecutrix to the accused was in his possession; and since he could not lawfully be compelled to produce it, the court did not err in admitting secondary evidence as to its contents. Farmer v. Slate, 100 Ga. 41 (28 S. E. 26) ; Moore v. State, 130 Ga. 322, 332 (60 S. E. 544) ; Valley v. State, 11 Ga. App. 15, 19 (74 S. E. 567).

      2. The court did not err in declining to admit testimony relative to the disposition of the' bastard child, since such evidence could not throw light on the question at issue. Besides, the alleged error in the exclusion of this testimony is not precisely pointed out by the exception.
    3. No reversible error was committed in admitting testimony as to the general good character of two female associates of the prosecutrix; since proof of their good character tended to contradict evidence offered by the defendant tó show intemperate, loose, and careless behavior on the part of the prosecutrix while she was in company with these persons and himself.
    4. One distinct and unequivocal statement by the judge in his charge to the jury, that the jury must be satisfied beyond a reasonable doubt of the guilt of the accused of the offense charged in the accusation upon which he is being tried, is sufficient, and it is not necessary to reiterate this instruction in charging as to various phases of the case 'developed by the evidence.
    (e) The fact that the judge charged that the jury must be satisfied “beyond a reasonable doubt” that the accused was guilty of the offense of fornication, but instructed as to the offense of seduction that the jury must be satisfied of the guilt of the accused “to a moral and reasonable certainty,” without making any specific reference in that immediate connection to the doctrine of reasonable doubt, is not ground for a new trial, as tending to suggest to the jury that a greater degree of certainty is necessary to warrant a conviction for the one offense than for the other. See Austin, v. State, 6 Ga. App. 211 (64 S. E. 670); Norman v. State, 10 Ga. App. 802 (74 S. E. 428), where the jury were generally instructed, elsewhere in the charge, that they could not convict the defendant unless they were satisfied of his guilt beyond a reasonable doubt.
    5. “It was not reversible error, on the trial of one under an indictment charging him with the commission of the crime of seduction by ‘persuasion and promises of marriage only,’ for the court to give the jury the full definition of the crime of seduction as contained in the Penal Code, § 378, including the accomplishment of that crime not only by ‘persuasion and promises of marriage,’ but also by ‘other false and fraudulent means,’ where the court subsequently instructed the jury, without specially retracting or explaining anything contained in the above instruction, in effect that the State relied for conviction upon proof of persuasion and promises of marriage;” and where the jury were so restricted to the evidence relating to “persuasion and promises of marriage” only, it was not error to omit any instruction as to what would constitute the “other false and fraudulent means” by which the crime could be accomplished. Thomas v. State, 146 Ga. 346 (91 S. E. 109).
    6. In the trial of the defendant in this case, for the offense of' seduction, under the evidence as a whole and considered in connection with the entire charge the following instruction to the jury was reversible error: “The proof of lascivious indulgences and wanton dalliances, with other evidence short of direct proof of the overt act, may authorize the jury to infer actual guilt of the illicit act; but it is not a lawful defense for tlie accused to blacken or blackball tie character of his alleged victim by proving loose declarations or showing imprudent or immodest conduct on the part of the woman he is accused of seducing.” Considering the entire charge, the real defense relied upon, and the evidence offered in support of that defense, this charge was harmful, (a) “because it tended to discredit in the minds of the jury the defense interposed by the prisoner, that the woman he was charged with seducing was not a virtuous female,” and (6) “because it contained an intimation by the court that the facts sought to be proved by the defendant constituted no lawful defense, but amounted only to an effort on his part to ‘blacken and blackball the character of his alleged victim;’” and also (o) because this language of the court tended “to raise in the minds of the jury such a prejudice against the defendant and his defense as to require the setting aside of the verdict of guilty.” Thomas v. State, supra.
    7. In view of the fact that there must be a new trial of this case, it is not necessary to consider the grounds of the motion for a new trial based upon alleged newly discovered evidence; nor need the remaining assignments of error be passed upon, since they are either not sufficiently definite and complete to present any question for determination, or are without substantial merit, or else relate to alleged errors which can scarcely recur on another trial.
    Decided January 23, 1917.
    Indictment for seduction; from Laurens superior court—Judge Larsen. November 3, 1915.

      J. H. Hall, Davis & Sturgis, C. A. Weddington, I. N. Eubanlcs, J. A. Thomas, for plaintiff in error.

      E. L. Stephens, solicitor-general, contra.
   Wade, C. J.

It is unnecessary to discuss any ground of the motion for a new trial except the particular ground upon which the lower court is reversed; and no extended discussion of that ground is required, in view of the ruling made by the Supreme Court upon the abstract question decided by that court in this case, and left for application by the Court of Appeals.

The precise question submitted to the Supreme Court, with the answer made thereto by a majority of that court, was as follows: "In the trial of a case of seduction, was the following charge to the jury error because it tended to discredit in the minds of the jury the defense interposed by the prisoner that the woman he was charged with seducing was not a virtuous female, or because it contained an intimation by the court that the facts sought to be proved by the defendant constituted no lawful defense, .but amounted only to an effort on his part to Tlaeken and blackball the character of his alleged victim;’ or was this language of the court calculated to raise in the minds of the jury such a prejudice against the defendant and his defense as to require the setting aside of the verdict of guilty: ‘The proof of lascivious indulgences and wanton dalliances, with other evidence short of direct proof of the overt act, may authorize the jury to infer actual guilt' of the illicit act; but it is not a lawful defense for the accused to blacken or blackball the character of his alleged victim by proving loose declarations or showing imprudent or immodest conduct on the part of the woman he is accused of seducing’? The Court of Appeals is instructed that the excerpt from the charge quoted in the above question is erroneous for the reasons stated; but whether the error was cured or the evidence was such as to avoid the necessity of a new trial depends upon an entire review of the case, which can be done only by the Court of Appeals.”

It will appear, from an examination of the foregoing question and answer, that the Supreme Court ruled upon the abstract point involved, and held definitely “that the excerpt from the charge quoted in the above question is erroneous for the reasons stated,” which includes all the reasons stated or suggested in the question; but left it open for this court to determine whether or not the error was cured elsewhere in the charge, or whether the evidence as a whole was such as to avoid the necessity of a new trial on account of this error—or in other words, whether under a review of the entire case the error was harmful to the accused.

Elsewhere the court charged the -jury as follows: “A virtuous unmarried female in the meaning of the law is one who at the time of the alleged seduction has never previously had unlawful sexual intercourse with a man. An unmarried female who is a virgin is virtuous, but if she with her consent unlawfully parted with her virginity she is not virtuous. The test by which a jury are to determine whether the female alleged to have been seduced was virtuous at the time of the alleged seduction is physical purity and.not moral chastity. In the present case you are to consider and determine whether or not Euby Green [the woman alleged to have been seduced] had parted with her virginity, that is, whether she had had sexual intercourse with any man prior to the alleged seduction.” The court further charged that “The presumption of the law in this case is that Euby Green prior to the date of the alleged seduction by the defendant was a virtuous woman. The presumption may be overcome by evidence, either direct or circumstantial. In determining whether or not the prosecutrix, Miss Euby Green, was or was not virtuous prior to the date of the alleged seduction, you may consider any evidence, direct or circumstantial, which shows the want of previous chastity, either mental or physical, a debauched mind, lewd or lascivious conduct anterior to the date of the alleged seduction, if such be shown by the evidence.”

While the above-quoted excerpts in a general" way authorized the jury to consider any evidence showing immodest, lewd, or lascivious conduct on the part of the prosecutrix in determining whether or not she was in fact, at the time of the alleged seduction, a physically chaste woman, the court followed up these general references to the circumstantial evidence which the jury might consider in arriving at such a conclusion (in the absence of direct proof of physical unchastity on her part before the time of the alleged seduction), with the following specific instruction directly relating to what was virtually the only defense interposed by the accused, to wit: “The proof of lascivious indulgences and wanton dalliances with other evidence short of direct proof of the overt act may authorize the jury to infer actual guilt of the illicit act, but it is not a lawful defense for the accused to Macicen or blaclcball the character of his alleged victim by proving loose declarations or showing impi'udent or immodest conduct on the part of the woman he is accused of seducing. [Italics ours.] He must go further and prove that she had lost her personal chastity prior to his alleged seduction of her, or he must prove such facts as, under the law, would raise a violent [italics ours] presumption that she had done so; such facts as would, under the law, authorize the jury to find that she had had sexual intercourse with a man before the alleged seduction.”

The previous references by the court to evidence which might tend to show immodest, lewd, or lascivious conduct on the part of the prosecutrix anterior to the date of the alleged seduction were general in their nature, as was also the particular instruction quoted above, that “proof of' lascivious indulgences and wanton dalliances with other evidence short of direct proof of the overt act may authorize the jury to infer actual guilt of the illicit act;” whereas the further instruction, that “it is not a lawful defense for the accused to blacken or blackball the character of his alleged victim by proving alleged loose declarations on the part of the woman he is accused of seducing,” tended to impress upon the jury that all the evidence offered by the accused for the purpose of showing by inference that the prosecutrix was, prior to the date of the alleged seduction, a woman of lewd character, constituted no defense which would itself authorize the jury to acquit the accused, even should they arrive at the conclusion, from any evidence of immodest or lascivious conduct, that she was not physically chaste when the alleged crime was committed. Not only did the charge as a whole fail to correct the error contained in this excerpt, but in the same connection the court further said that the defendant "must go further and prove that she had lost her personal chastity prior to his alleged seduction of her, or he must prove such facts as, under the law, would raise a violent presumption that she had done so; such facts as would under the law authorize the jury to find that she had had sexual intercourse with a man before the alleged seduction.” The jury were not only advised in effect that none of the evidence introduced by the accused, to sustain the real defense interposed by him (that the woman was not at the time of the alleged seduction a virtuous unmarried female, because of behavior on her part which, measured by the ordinary rules of human conduct and experience, definitely authorized the contrary inference), made out a lawful defense, but were also instructed that the defendant must either prove that she had lost her personal chastity before the alleged seduction, or prove such facts as “would raise a violent presumption that she had done so,”—the facts necessary to raise such a “presumption” being such as would authorize the jfiry “to find that she had had sexual 'intercourse with a man before the alleged seduction.” When considered in connection with the positive statement by the court that it was not “a lawful defense for the accused to blacken or blackball the character of his alleged victim by proving loose declarations or showing imprudent or immodest conduct” on her part, the jury may well have understood from the last instruction quoted above that they were not authorized to conclude that the prosecutrix was a lewd woman unless there was either credible direct evidence of previous sexual intercourse on her part, or else there were circumstances in proof which, while falling short of such, absolute proof of physical unchastity, nevertheless showed that the defendant had been so situated with some man other than the defendant at a time' and place prior to her alleged seduction by him that sexual intercourse must have followed as a natural and practically inevitable consequence.

It is clear, therefore, that the charge of the court did not correct the harmful error contained in this excerpt, which reflected on the value of the testimony offered by the accused as a foundation for the inference he sought to have the jury draw that the prosecutrix was physically unchaste at the time of her alleged seduction, because of previous sayings and conduct totally irreconcilable with the belief that she was even physically pure. No extended review of the evidence is necessary to demonstrate that the reference by the court to the testimony of the accused which was offered to show that the conduct of the j>rosecutrix was of such a character as to support a legitimate inference to be drawn by the jury that she was in fact a lewd woman could have been harmless to the accused, in the light of the entire record.

One charged with the offense of seduction is from the outset placed at a decided disadvantage, because the very nature of the crime usually precludes the possibility of knowledge on the pari of any person, other than the accused and the prosecutrix, as to the time and manner of its consummation. Unless the defendant is so fortunate as to be able to show beyond all possibility of question that he was not in the society of the alleged victim at or about the time fixed by her, or else can show it was physically impossible for him' to commit the crime charged, he must generally depend for any effectual defense upon direct proof that his alleged victim was not physically ehaSte at the time he was charged with seducing her, or proof that her acts and conduct had been so immodest and lascivious as to compel the inference (in the absence of direct proof of the fact) that she was in truth a lewd woman. It is well-nigh impossible as a rule to establish by direct proof that another man has had intercourse with the professed victim of the accused, for generally the other men involved are not easily to be discovered, nor are they ready to admit their own lascivious • conduct or to assail the character of a woman who has bestowed her favors upon them, and seldom is it the case that a third person witnesses the performance of such an act. It is usually done in secrecy, and not openly or upon the house tops. The oath of the woman claiming to have been seduced is sufficient in most instances to establish the fact of the intercourse to the satisfaction of a jury (especially where, as in this case, she has given birth to a bastard child); and where she testifies further that the intercourse was brought about by persuasion and promises of marriage, or by such other false and fraudulent means as are recognized by law, the accused may bitterly denounce her every statement which tends to criminate him, and boldly assert his innocence, and yet if he is unable to establish a difficult alibi, extending possibly over many months, and thus show that the crime could not possibly have been committed by him, or- else conclusively demonstrate his sexual incapacity to commit this offense, he might be utterly unable to preserve his name from infamy and his person from the punishment awarded to the perpetrator of an infamous crime, notwithstanding his entire innocence, unless some other defense recognized by law be available. As already suggested, if the accused was exceedingly fortunate, he might perhaps obtain direct proof that the woman was not virtuous, or if she was a notoriously lewd character, he might be able to establish this fact without special difficulty; but generally he must rely only upon testimony tending to show such conduct on the part of . the woman prior to the time of the alleged seduction as would authorize the jury to infer that a woman guilty thereof was not in fact physically chaste. At best, the average juror would look with aversion upon a defense of this character, and unless the proved conduct of the prosecutrix was so immodest or lascivious as almost to compel the conclusion that no woman guilty thereof could be physically chaste, a jury composed of average men, with natural chivalry towards the other sex, would be inclined to visit their disapproval upon an alleged seducer who attempted to set up such a defense. The defense being lawful, but nevertheless' one difficult to sustain under ordinary conditions, it is vitally important that it be not discredited by any suggestion or intimation from the trial judge, and that the accused be allowed the full benefit thereof, especially where it is practically his sole defense.

Any comment on the evidence would be improper, in view of the fact that the case must be retried. It is enough to say that the defendant was charged with the commission of the crime by persuasion and promises of marriage only, and while he admitted the intercourse, but in his statement to the jury denied making any promises of marriage, his denial was unsupported, and he must have relied almost entirely upon the defense that the prosecutrix had lost her physical chastity before the date of her alleged seduction by him; and there was some proof of conduct on her j>art from which (if credited) the jury might have drawn this inference, irrespective of the accusing statements made by the defendant to the jury.

Under the ruling by the Supreme Court, the excerpt from the charge of the court touching the value of the testimony under discussion must undoubtedly have conveyed to the jury an intimation that in the opinion of the trial judge the facts which the defendant sought to prove constituted no lawful defense, but amounted to an attempt by him to besmirch the character of his alleged victim, and the language of the court was calculated to suggest strongly to the minds of the jurors that the defendant was engaged in an unmanly attack on the reputation of a woman not shown to have parted with her virtue, thereby exciting their prejudices against the defendant and seriously discrediting the defense interposed by him.

It is true, as held by this court in Hays v. State, 16 Ga. App. 20 (7), 21 (84 S. E. 497), that, “under the law in Georgia a woman is a virtuous female if her body be .pure; and if she has never had sexual intercourse with another, he who first has sexual intercourse with her may be guilty of seduction though both her mind and heart be impure;” but the particular instruction in this case, in the light of the evidence, and taking into consideration .the charge as a whole, must undoubtedly have minimized the effect of the testimony relating to alleged improper conduct on the part of the prosecutrix which was presented to support an inference that she was not merely debauched in mind, but unchaste in body, and must have conveyed to the jury a very strong intimation that in the opinion of the judge the evidence referred to was wholly insufficient to support any such inference.

The judgment of the lower court, overruling the motion for a new trial, is therefore

Reversed.

George and Lulce, JJ., concur.


author: George, J.

text:
      7207.

    HODGES v. CASE THRESHING MACHINE CO.
    1. The court did not err in sustaining the demurrer to the defendant’s answer as amended. The law of this case is fixed by the former decision of this court therein. 16 Qa. App. 327.
    2. The presiding judge, under the provisions of the order granted in term, did not have authority to enter a final judgment in this case in vacation. Civil Code of 1910, § 4854.
    Decided January 23, 1917.
    Complaint; from city court of Americus—Judge Harper. November 30, 1915. ,

      Wallis & Fort, J. A. Hixon, for plaintiff in error.

      Filis, Webb & Filis, contra.
   George, J.

1. When this case was before this court at the March term, 1915, it was decided that “the answer and plea of the defendant as a whole, as finally amended, should have been stricken on demurrer, as the answer was a manifest effort to add .to and vary by parol the terms of the unambiguous written contract between the parties, upon which the suit was brought,” and the judgment was reversed for error in not sustaining the demurrer to the answer, and in overruling the motion for a new trial filed by the plaintiff, the present defendant in error. Case Threshing Machine Co. v. Hodges, 16 Ga. App. 327 (85 S. E. 305). Before the remittitur from this court was made the judgment of the court below, the defendant offered an amendment to his answer, which was allowed by the court, subject to demurrer. By reference to the pleadings filed by him and under consideration by tftis court at the March term, 1915, and by reference to the original briefs of file in that case, it is clear that the defenses contained in the amendment to the answer, made after the decision of the case in this court, but before that decision was made the judgment of the lower court, are in substance and effect the same as those set up in the former pleadings. It is true that the amendment now under consideration seeks to avoid the contract sued upon for the reason that it does not “possess finality of utterance; that there has never been an agreement that the writing is a complete and final uttered embodiment of all the terms of a contract presently operative and binding.” This is alleged to be so because the same facts set up in the answer were considered by the court in this case heretofore. While the amendment now under consideration contains the general averment set out above, the facts set forth in the answer show that the defendant did have possession of the traction engine, the consideration named in the contract and notes, and was actually using it, and that he had paid a large portion of the purchase-price represented by the first of the series of notes, as provided in the contract. Moreover, the contract and each of the notes, including the note paid, signed by the defendant and set out in the petition of the Case Threshing Machine Company, re- ■ cited that they were “signed, sealed, and delivered” in the presence of an officer of the law authorized to attest the same. This identical defense -was made in the original answer as finally amended.

2. While the ruling sustaining the demurrer to the defendant’s answer as finally amended was proper, the judgment made in vacation, in awarding final judgment in favor of the plaintiff, for principal, interest, and attorney’s fees, must be reversed. It appears that the presiding judge acted under the authority of an order entered in term, as follows: “By agreement of counsel in the above-stated case, it is ordered that the demurrers in said case be heard at Americus, Georgia, on November 6, 1915. It is further ordered that both parties, plaintiff and defendant, shall have the right to file any amendments that will be allowed according to law, and to file.and make any objections to the amendments. It is further ordered that the court shall have authority to pass upon all demurrers and amendments at said hearing, as if in term time, and to enter up all necessary judgments in vacation in said cause as if said, judgments were entered in term time, and either party shall have the right to file exceptions to any of the rulings and judgments of said court, as if in term time. It is further ordered that if said hearing is not had at the. time stated, the court shall have authority to pass necessary orders continuing said hearing to a future date.” We do not think this agreement authorized the judge to hear and determine this case in vacation. It is to be noted that the judgment rendered by the court was for principal, interest, and attorney’s fees. It is contended that the judge of the city court of Americus has the same power as judges of the superior courts of this State to hear and determine causes and render judgments in vacation. It is not insisted that he has any greater authority. Conceding that he is clothed with the same power as the judges of the superior courts in respect to the matter in question, he was without authority to enter the final judgment in vacation. Judges of the superior courts “can not exercise any power out of term time, except the authority is expressly granted; but they may, by order granted in term, render a judgment in vacation.” Civil Code (1910), § 4854; Tucker v. Huson Ice & Machine Works, 142 Ga. 83 (82 S. E. 496). Under the order recited above, the presiding judge had authority to determine the demurrers, to pass upon and allow amendments, and to pass any necessary judgment with respect to the same. Only by implication is he given authority to finally hear and determine this case on its merits. This power by implication is denied, when he undertakes to exercise the authority under the law of the State; and the parties, by agreement, did not confer upon the judge the right to enter a final judgment in this case in vacation.

Judgment reversed.

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


author: Luke, J.

text:
    7241.
    BOWMAN & TARPLEY v. ATLANTIC ICE AND COAL CORPORATION.
    1. Error in sustaining an objection to the admissibility of testimony is cured if subsequently the testimony be admitted.
    2. Where a bill of lading is executed in triplicate by the same stroke of the pen, any one of the three papers may, upon proper identification, be used as an original. Especially is this true in this case, the evidence showing that one of the triplicate bills of lading was delivered to the defendant, one to the railroad company, and the other retained by the plaintiff; the one retained by the plaintiff being marked “original,” and it being the one offered in evidence.
    3. A provision in a contract for the sale of goods, “the cash for the amount wanted to accompany each order,” does not require the court to charge the jury that the plaintiff could not recover if credit was extended.
    Decided January 23, 1917.
    Rehearing denied February 1, 1917.
    Complaint; -from city court of Carrollton—Judge Beall. December 14, 1915.

      Leon Hood, for plaintiffs in error.

      Buford Boylcin, Raymond Robinson, contra.
   Luke, J.

This is an action by the Atlantic Ice and Coal Corporation'against Bowman & Tarpley. upon an account. The right of action arises by reason of a contract entered into between the plaintiff and the defendants wherein the plaintiff agreed to ship ice to the defendants at Bowdon, Ga., at a stated price. The contract provides that it is not transferable except upon the written consent of the Atlantic Ice and Coal Corporation. It contains the further language: “The cash for the amount wanted to accompany each order.” The plaintiff contended that it shipped, pursuant to the contract, ice to the amount of $131.50. The defendants pleaded that “while the ice was shipped, yet the partnership of Bowman & Tarpley did not receive the ice; that the ice was received by. Bowman & Williams, another partnership: that A. J. Bowman, a member of both partnerships, notified the plaintiff at the time the first order was placed for ice of the dissolution of the firm of Bowman & Tarpley and the formation of a new partnership of Bowman & Williams, and instructed the plaintiff to ship the ice to the new partnership.” The trial of the case resulted in a verdict favorable to the Atlantic Ice and Coal Corporation. Bowman & Tarpley excepted to the rulings of the court in- the admission of evidence, and to the charge of the court.

1. The first assignment of error is that the court refused to permit the defendants during the trial' to prove by the plaintiff’s manager, Mr. Hancock, that he had actual knowledge of the dissolution of the partnership before any ice was shipped under 'the contract, such knowledge having been given by the said A. J. Bowman, When the defendant first undertook to make this proof while Mr. Hancock was testifying, the court did rule out the evidence, and that ruling was adhered to when objection was made while A. J. Bowman was testifying, but the record shows subsequently that A. J. Bowman testified without objection as follows: “I told him (Mr. Hancock, the manager of the Atlantic lee and Coal Corporation) that the firm of Bowman & Tarpley had been out of business about six weeks, and that Bowman & Williams had purchased the German restaurant at Bowdon- and had repacked the ice-house and had overhauled it, and if they wanted to sell Bowman & Williams at the price contracted for with Bowman & Tarpley, to send it ahead, and he sent it.” The first shipment of ice was shipped to Bowman & Williams, and the balance of the ice was shipped -to Bowman & Williams, and such payments as were made on the ice were made by Bowman & Williams. Mr. Hancock, the manager of the Atlantic Ice and Coal Corporation, the person with whom contract and all conversations were had, was recalled as a witness and permitted without objection to testify: “I have heard what Mr. Bowman said about having a conversation with me in May over the telephone, and that he told me that Bowman So Tarpley had dissolved, and that Bowman & Williams had formed a partnership and I could ship the ice to them on those terms. I never had any such conversation. I never knew about Bowman & Williams.” These witnesses having, subsequently to the objections which were overruled, answered without objection the questions objected to, the issues were submitted to the jury, and the error, if any, was cured.

2. Error was assigned upon the admission of the bills of lading covering the several shipments of ice sued for, the objection offered being that copy bills of lading were in evidence instead of originals. The record shows that the bills of lading were executed in triplicate and made with one stroke of the pen, and that the one admitted was marked “original.” One of the bills of lading was sent to the railroad, one to Bowman So Tarpley, and the other was retained. The one introduced in evidence was the one retained by the shipper. In Greenleaf on Evidence, § 561, it is said: “There are three cases in which notice to produce is not necessary: first, where the instrument to be produced and that to be proved are duplicate originals; for, in such case, the original being in the hands of the other party, it is in his power to contradict the duplicate original by producing the other, if they vary; secondly, where the instrument to be proved is in itself a notice, such as a notice to quit, or notice of the dishonor of a bill of exchange ; and, thirdly, where, from the nature of the action, the defendant has notice that the plaintiff intends to charge him with possession of the instrument, 'as, for example, in trover for a bill of exchange.” Also see American Tie and Timber Co. v. Tyler, 18 Ga. App. 640 (90 S. E. 86); Lewis v. Phillips-Boyd Publishing Co., 18 Ga. App. 181 (89 S. E. 177). This ground is without such merit as would entitle the plaintiff in error to a reversal of the judgment of the lower court.

3. The plaintiff in error excepts because the judge failed to charge the jury that, if the contract provided that no ice was to be shipped unless the cash accompanied the order, there could be no recovery. The language in the contract, “the cash for the amount wanted to accompany each order,” would not defeat the plaintiff’s right to recover for the ice sold and delivered simply because credit was extended to the purchaser. This ground of exception is without merit.

There was evidence to support the verdict.

Judgment affirmed.

Wade, G. J., and George, J., concur.


text:
    7312.
    Johnson v. James.
    Decided January 23, 1917.
    Certiorari; from Fulton superior court—Judge Pendleton. Feb-, ruary 4,1916.

      Hines & Jordan, for plaintiff in error.

      W. T. Moyers, contra.
   Luke, J.

1. The making of an oral motion for a new trial in the municipal court of Atlanta, as provided for by act of 1913 (Ga. Laws, 1913, p. 145 (a-b)), is a cumulative remedy and does not defeat the right of certiorari.

2. Upon the petition for certiorari and the answer of the judge of the municipal court, the order sustaining the certiorari was demanded.

Judgment affirmed.

Wade, O. J., and George, J., concur.


text:
    7370.
    JORDAN v. FIRST NATIONAL BANK OF ROME et al.

    1. A promissory note payable to the order of the maker and properly indorsed by him is a negotiable instrument.
    2. Where one signs as maker a note payable to himself, and another signs it as surety only, the maker’s indorsement converts it into a negotiable instrument, and his transfer of the note binds the surety, notwithstanding the absence of an indorsement by the surety.

      (a) The benefit given to or obtained by the maker or principal on his transfer of the note with his indorsement supplies a consideration sufficient to bind the surety.
    3. The default judgment rendered in this ease should have been against one of the signers of the note as principal, and against the other as surety; and the judgment of the trial court is therefore affirmed with direction that the judgment be reformed accordingly.
    Decided January 23, 1917.
    Complaint; from city court of Floyd county—Judge Nunnally. February 14, 1916.

      Nathan Harris, for plaintiff in error. Maddox & Doyal, contra.
   Wade, C. J.

1. “A note payable to the order of the maker is negotiable.” 3 R. C. L. 877, 878, § 62. Bills or notes payable to the drawer or maker himself are valid negotiable instruments when indorsed by the maker or drawer. Id. 880, § 65, and cases there cited. “A promissory note payable to the order of the maker thereof and properly indorsed by him is a negotiable instrument.” Pryor v. American Trust & Banking Co., 15 Ga. App. 822 (84 S. E. 312). Such an instrument, after indorsement by the maker, “becomes a valid promissory note of which the indorsee is the pa)^.” 4 Am. & Eng. Enc. of Law (2d ed.), 120.

2. This suit was based on a promissory note payable to “myself or order,” signed: “John R. Jones,” and “L. C. Jordan, security.” This instrument, according to the recitals in the plaintiff’s petition, and as appears from the alleged copy of the note attached to the petition, was indorsed by the maker, John R. Jones, and, before maturity, was duly transferred to the holder, who instituted the suit. There was no appearance by either the maker or the security, and a default judgment was rendered against both as makers, over oral objection by the security, though it does not appear that the maker or the security at any time offered to file a plea. The note sued upon itself indicates that Jordan was security only; and he states in his bill of exceptions, and also contends in his brief, that he was security only, and that therefore no judgment could be rendered against him, since it was not made to appear that he likewise indorsed the note and thus gave it currency as against himself. The Civil Code, § 3538, declares that “The contract of suretyship is that whereby one obligates himself to pay the debt of another in consideration of credit or indulgence, or other benefit given to his principal, the principal remaining bound therefor.” It is therefore clear that under the provisions of the statute law of this State, no consideration moving the security, other than the credit' extended to his principal, is necessary to support an obligation of suretyship. When, therefore, the maker of the note, which was payable to his own order and which was signed by another as security, converted it into a negotiable instrument, or gave it currency, by indorsing his own name thereon and transferring it for value, the note became a good and valid negotiable instrument, notwithstanding the security failed to indorse it; and it was not without consideration as to him, since the benefit received by his principal, in return for the transfer of the instrument, furnished a sufficient legal consideration. It was not necessary that any personal benefit should flow to the surety, or that any other consideration should exist to support his obligation to pay the note.

3. It being alleged in the petition that the maker of the note indorsed it,, and a negotiable undertaking being thereby created on his part, to pay the amount stipulated in the instrument, and the note itself indicating that the other party signed it as security, judgment should have been rendered against Jones as principal and Jordan as security; and we therefore affirm the judgment of the trial court, with direction that the judgment be reformed to that extent.

4. The case was in default; and hence, there -was no plea setting up the fact (if it be a fact) that the original maker had been adjudicated a bankrupt. Therefore we can not consider any question involving the bankruptcy of the maker. Other points suggested by the brief of counsel for the plaintiff in error, or which he seeks to raise in the bill of exceptions, are without merit, and are in effect controlled by the foregoing rulings.

. Judgment affirmed, with direction.

George and Luke, JJ., concur.


text:
    7405.
    Daniel v. American Agricultural Chemical Company.
    Decided January 23, 1917.
    Rehearing denied February 2, 1917.
    Motion to dismiss the writ of error.

      A. 8. Anderson, for plaintiff in error.

      Brinson & Hatcher, contra.
   George, J.

The defendant’s answer was stricken on demurrer on the 15th day of December,- 1915, and a judgment for the plaintiff rendered. Timely exceptions pendente lite were taken to the order sustaining the demurrer and striking the answer. A bill of exceptions was tendered to and certified by the presiding judge on the 4th day of April, 1916. No motion for new trial was made, and no exception taken to the rendition of the final judgment. Held: The motion to dismiss the bill of exceptions must be sustained.

Writ of error dismissed.

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


text:
    7430.
    Faires v. Central of Georgia Railway Company.
    Decided January 23, 1917.
    Action for damages; from city court of Polk • county—Judge John K. Davis. April 8, 1916.

      W. W. Mundy, for plaintiff.

      J. Branham, Maddox & Boyad, Fielder & Fielder, for defendant.
   George, J.

The four excerpts from the charge of the court, assigned by plaintiff in error as hurtful to him because not warranted by the facts in the record, are not subject to the criticism made, and the verdict is not without evidence to support it. The controlling issues in the case were fairly submitted to the jury by the trial judge, and slight inaccuracies in statement should not disturb the verdict.

Judgment affirmed.

Wade, O. J., and Luhe, J., concur.


text:
    7473.
    Hinson v. Mutual Fertilizer Company.
    Decided January 23, 1917.
    Complaint; from city court of Hazlehurst—Judge Grant. April 18, 1916.

      8. B. Bell, for plaintiff in error.

      C. E. Parker, Bennett & Swain, contra.
   Wade, C. J.

1. The 3d paragraph of the defendant’s plea set up the only defense interposed. The court passed an order sustaining a special demurrer to this paragraph, unless the defendant should by amendment, on or before a specified date, cure the defects pointed out in the demurrer, and providing that “upon the defendant’s filing amendment by said time, covering the defects pointed out in said answer, . . said special demurrer be overruled.” No exception pendente lite was filed, but, within the time fixed hy the order, the defendant offered an amendment, which clearly failed to meet the objections raised by the demurrer, and the court rejected the amendment and thereafter directed a verdict in favor of the plaintiff. The bill of exceptions was certified more than 30 days after the judgment on the demurrer.

(or) The order sustaining-the demurrer under the condition named therein, not being excepted to within the time and in the manner provided hy law, fixed the law of the case to that extent; and since the amendment offered by the defendant did not comply with the terms of the order, the court did not err in rejecting the amendment.

2. The only real defense set up by "the plea having been stricken, the court did not err in directing a verdict in favor of the plaintiff.

Judgment affirmed.

George and Luhe, JJ., concur.


text:
    7485.
    Dougherty-Ward-Little Co. v. Joiner, administrator.
    Decided January 23, 1917.
    Garnishment; from city court of Nashville—Judge Lankford presiding. September 9, 1914.

      L. A-. Mills Jr., Hendricks & Hendricks, for plaintiff.

      W. D. Buie, J. A. Alexander, contra.
   George, J.

Section 6187 of the Civil Code (1910) provides that “No bill of exceptions shall be dismissed upon the ground that the same was not certified by the judge in the time required by law for tendering and signing bills of exceptions; but if it shall appear from the bill of exceptions that the same was tendered to the judge within the time required by law, a mere failure on his part to sign the same within the time prescribed shall be no cause for dismissal, unless it should appear that the failure to sign and certify the same by the presiding judge within the time prescribed by law was caused by some act of the plaintiff .in error or his counsel.” Where it affirmatively appears, from the certificate of the presiding judge, that, on the presentation of the bill of exceptions within thirty days from the date of trial, the judge immediately returned it to counsel for the plaintiff: in error, with the request to meet certain specific objections, and where the corrections were never in fact made, and the exceptions as originally tendered remained with the presiding judge, for the convenience of counsel for the plaintiff in error, for more than seventeen months, the bill of exceptions should be dismissed.

Writ of error dismissed.

Wade, O. J., and LuJce, J., concur.


text:
    7503.
    National Company v. Kommel & Son.
    Decided January 23, 1917.
    Complaint; from city court of Yaldosta—Judge Cranford. April 21, 1916.

      Franklin & Lang dale, for plaintiff in error.

      Woodward & Smith, contra.
   Luke, J.

1. The charge of the court, when considered as a whole, was most favorable to the plaintiff in error, and not subject to the objections pointed out in the record.

2. The issues of this cause were fairly submitted to the jury, and there was evidence to authorize the verdict.

Judgment affirmed.

Wade, O. J., and George, J., concur.


text:
    7517.
    Williams v. Stocks.
    Decided January 23, 1917.
    Certiorari; from Fulton superior court—Judge Bell. ■ March 25, 1916. '
    A suit on account, in the municipal court of Atlanta, resulted in a judgment for the defendant. The plaintiff’s oral motion for a new trial was overruled, and, on certiorari, the superior court granted him a new trial. His petition for certiorari contained the usual general grounds and the ground that the evidence demanded a judgment in his favor for the full amount sued for. In his bill of exceptions it is contended that a final judgment in the case should have been rendered in his favor by the judge of the superior court in sustaining the certiorari. The evidence was conflicting as to the liability of the defendant and the correctness of the account.

      W. P. Coles, for plaintiff. Lamar Hill, for defendant.
   George, J.

Where no error of law is complained of which must finally govern the ease, no final judgment can be rendered on a petition for certiorari, except in a case in which the evidence is undisputed and where there can be but one legal verdict or judgment, under the evidence. Civil Code (1910), § 5201. The judge of the superior court did not err in remanding this case for a.new trial, and in refusing to render a final judgment, the evidence being in dispute.

Judgment affirmed.

Wade, O. J., and Inihe, J., concur.


text:
    7529.
    Savannah Electric Company v. Wilhoit.
    Decided January 23, 1917.
    Action for damages; from city court of Savannah—Judge Davis Freeman. May 16, 1916.

      Osborne, Lawrence & Abrahams, for plaintiff in error.

      Bouhan & Herzog, E. 8. Elliott, contra.
   Luke, J.

The petition as amended was not subject to the general and special demurrers urged against it, and the court did not err in overruling the demurrers.

Judgment affirmed.

Wade, O. J., and George, J., concur.


author: Wade, O. J.

text:
    7537.
    Jackson v. Branch.
    Decided January 23, 1917.
    Certiorari; from Fulton superior court—Judge Pendleton. May-17, 1916.

      Oober & Jackson, for plaintiff. T. J. Lewis, for defendant.
   Wade, O. J.

Considering the entire record, the trial court did not err in overruling the demurrer to the defendant’s plea, and in thereafter directing a verdict in his behalf; and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

George and Luhe, JJ., concur.


text:
      7542.

    PALACE MARKET CO. v. MIDLAND CITY HOTEL CO.
    The evidence is sufficient to support the finding of the presiding judge, who by consent tried the ease without a jury, and no error of law appears.
    Decided January 23, 1917.
    Complaint; from city court of Macon—Judge Hodges. May 1, 1916.

      Byals & Anderson, for plaintiff in error.

      Hardeman, Jones, Park & Johnston, contra.
   George, J.

The Midland City Hotel Company filed suit in the city court of Macon against the Palace Market Company, upon a written subscription to capital stock in the plaintiff corporation. The case, on all questions of law and fact, was submitted by agreement to the presiding judge, sitting without a jury. The court rendered a judgment against the defendant for the full amount sued for. Three mixed questions of fact and law,were involved in the ease, to wit: (1) Did the secretary and treasurer of the' Market Company, on the facts in this case, have authority to execute the contract of subscription? (2) Is the Market Company, on the facts of this case, released from liability on its subscription, if in the first instance binding, because of the decision of the court releasing certain subscribers whose subscriptions were necessary to make up the minimum stock authorized by the charter of the plaintiff corporation, and because certain other subscribers were resisting payment of subscriptions to the capital stock in the plaintiff corporation, and because one subscription was payable in material? (3) Did the presiding judge err in sustaining the demurrer to the allegations of the amended answer of the Palace Market Company, setting up that its subscription was a donation and not an investment? The presiding judge found in favor of the plaintiff upon each of the controlling issues stated in questions 1 and 2, and there is evidence to support his finding, and the same is not contrary to law.

The assignment of error on. the ruling of the trial judge in sustaining the demurrer to the defendant’s answer, set out in the third question, is not presented by exception pendente lite, or by direct exception timely made, and can not be considered. Hawkins v. Studdard, 132 Ga. 265 (63 S. E. 852, 131 Am. St. R. 190).

Judgment affirmed.

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


text:
    7578.
    Empire State Jewelry Company v. Grant Jewelry Co.
   Wade, C. J.

1. The plea sufficiently indicated that the guaranty as to the weights of the diamonds sold to the defendant was made before the purchase and not thereafter, and that the alleged false representations as to the weights induced the purchase; and the court did not err in overruling the demurrer thereto upon that and other grounds.

2. The fact that the purchaser afterwards gave notes for the remainder of the purchase-price then unpaid would not prevent the purchaser from setting up, by way of recoupment, a claim for damages based on an alleged deficiency in the weights of the diamonds purchased, since the damages arose out of the original contract of purchase, and not under any special conditions or stipulations contained in the simple promissory notes executed to close the original purchase-money account. The case of Dooley v. Gorman, 104 Ga. 767 (31 S. E. 203), is not in point, as the note sued upon in this case does not purport to set forth the entire contract between the parties, but only fixes in part the amount to be paid by the maker to the payee, and the date when one such payment shall be made.

3. According to the testimony in behalf of the defendant, the notes given to the plaintiff in settlement of the balance due on open account for the purchase-money of the diamonds were executed and delivered before the defendant had discovered, or there had been brought to its attention, any reason to investigate, and before it had a reasonable opportunity to. discover the breach of warranty on the part of the seller as to the weights of the diamonds purchased; and therefore the defendant was not estopped from setting up its claim for damages because of the giving of the notes.

4. The testimony was in sharp conflict, but there was evidence to support the finding of the jury in favor of the defendant; and since that finding has been approved by the trial judge, this court will not set it aside. Judgment affirmed.

Decided January 23, 1917.

Complaint—appeal; from Baldwin superior court—Judge Park. April 14, 1916.

Suit was brought in a justice’s court on a promissory note of the defendant to the plaintiff for $50 principal and for interest and attorney’s fees; and by appeal the case was taken to the superior court, where the trial resulted in a verdict for the defendant. The bill of exceptions complains of the overruling of a demurrer to the defendant’s plea, and of the refusal to grant a new trial. In the plea it was averred, that the note sued on was given, with other notes of the defendant, in payment of the purchase-price of three diamond rings sold to the defendant, one for $126, one for $125, and one for $162; that a part of the consideration of the purchase was a guarantee by the seller that the rings should weigh as follows: two to weigh 3-4 of a karat each, and one to weigh 7-8 of a karat, less 1-16, less 1-32; that these weights were warranted by the plaintiff, and on the faith of this warranty the defendant bought the rings, and, after several payments were made on the account, the remainder of the account was closed by notes, one of which was the note sued on; that the defendant paid on “the said account of said notes” the sum of $281.17; that after the notes were given the stones were weighed, and the two small stones weighed only a half karat each, and the larger stone weighed only three fourths of a karat; that the small stones were actually worth $75 each, and the larger stone was actually worth $104; that if the stones had weighed as much as warranted by the seller, they would have been worth the purchase-price charged, while the difference in weight made a difference of $254 in value; and by reason of said failure and breach of warranty the defendant was damaged more than $150. There was a prayer for recoupment in the sum of $100. The verdict was merely a general verdict for the defendant.

The grounds of the demurrer were: (1) The plea does not allege when the purchase was made, or when the notes were given, or when the guaranty was made; it is insufficient without an allegation that the guaranty was made at the time the contract sued on was made. It does not allege that the defendant did not have ail opportunity to inspect the articles purchased, or was prevented from so doing, and it does not allege that there was an offer to rescind, or any complaint or tender back of the articles purchased. (2) The plea shows that there was a complete accord and satisfaction between the parties, and that the notes were given in full settlement of the account, and the defendant is estopped from setting up any defense that he might have had prior to the settlement and' the giving of the notes, and from denying that the amount due at the time of the execution of the notes was equal to the amount of the notes. (3) The plea of recoupment is demurred to because the claim of damage does not arise out of the_ note sued on, but arises out of a separate and distinct contract.

George and Luke, JJ., concur.

D. S. Sanford, for plaintiff. Hines & -Vinson, for defendant.