text:
    A99A1411.
    PASS v. BOUWSMA.
    (522 SE2d 484)
   Eldridge, Judge.

On January 5, 1996, at around 6:30 p.m., while drinking a beer that he brought, Don Kent Glenn, defendant, arrived at the house of Michelle Bouwsma, defendant-appellee. While Glenn was at Bouw-sma’s home, Bouwsma had a mixed drink, but did not give, sell, or furnish Glenn any additional alcohol of any kind. In fact, Bouwsma did not purchase, provide, or furnish Glenn any alcohol at any time that evening. Bouwsma testified that Glenn never appeared to her “in a state of noticeable intoxication” at any time that evening.

Around 7:00 p.m., Glenn and Bouwsma left to go eat. They were in Glenn’s truck, and Glenn was driving. Glenn had a cooler of beer on the floorboard of his truck, but Bouwsma denied that she exercised any control over the beer; that she furnished or purchased any beer; or that she handed Glenn any beer. En route, Glenn purchased beer with his own money, and Bouwsma drank one. They ended up at Allen’s Hamburgers, where Glenn shot pool and Bouwsma drank another beer. They then went to Fox’s, a bar, where Glenn purchased mixed drinks for both of them. Between 9:30 p.m. and 10:00 p.m., they left to return to Bouwsma’s home; on the way, Bouwsma fell asleep while Glenn drove.

While traveling east on Georgia Highway 72, Glenn ran off the road on a curve, traveled along the shoulder, crossed over the center-line, and struck a vehicle in which Alethea Michelle Pass was a passenger. Pass was killed in the collision. At the time of her death, she was seven months pregnant, and the unborn baby died also.

Nellie Ruth Pass, plaintiff-appellant, administrator of the estate of Alethea Michelle Pass, brought an action against Bouwsma for wrongful death of the unborn child. She contended that Bouwsma provided, furnished, or sold alcohol to Glenn while he was in an obvious state of intoxication.

Bouwsma brought a motion for summary judgment supported by her affidavit. Plaintiff filed no evidence in opposition to the motion. On December 16, 1998, summary judgment was granted to Bouw-sma. Plaintiff filed her notice of appeal.

Plaintiff contends that the trial court erred in granting Bouw-sma’s motion for summary judgment by relying on a self-serving affidavit when there was no other evidence produced in support of the motion. We do not agree.

1. Plaintiff contends that the defendant’s affidavit should be stricken because it is nothing more than a self-serving verification of her answer. See McLeod v. Westmoreland, 117 Ga. App. 659 (161 SE2d 335) (1968).

OCGA § 9-11-56 (e) sets forth a codification of the common law standards for affidavits and mandates compliance in summary judgments. McPherson v. McPherson, 238 Ga. 271 (232 SE2d 552) (1977). “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” OCGA § 9-11-56 (e); see also McPherson v. McPherson, supra; Summer v. Allison, 127 Ga. App. 217 (193 SE2d 177) (1972).

Affidavits that fail to minimally comply must be disregarded. Oglesby v. Farmers Mut. Exchange, 128 Ga. App. 387 (196 SE2d 674) (1973). Where only a portion of an affidavit is in compliance, only such portion may be considered. Vickers v. Chrysler Credit Corp., 158 Ga. App. 434 (280 SE2d 842) (1981); Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639 (171 SE2d 782) (1969). A timely and properly made motion to strike may be properly considered by the trial court. Ford v. Ga. Power Co., 151 Ga. App. 748 (261 SE2d 474) (1979).

The trial court implicitly ruled upon and denied plaintiff’s motion to strike Bouwsma’s affidavit, because the order mentions plaintiff’s attack on the affidavit as being merely a verification of the answer. The trial court went on to rule that “the affidavit describes the events of the evening in question in some detail.” We agree that the affidavit provides precise, first-hand testimony of specific facts as to what transpired that evening, so that the affidavit passed the requirements of OCGA § 9-11-56 (e). See also Worley v. Pierce, 211 Ga. App. 863 (440 SE2d 749) (1994). Unlike the party’s affidavit in Speir v. Krieger, 235 Ga. App. 392, 398 (2) (509 SE2d 684) (1998), Bouwsma’s affidavit was factually detailed, relevant, material, and negated the essential elements of plaintiff’s case.

Affidavits in support of summary judgment are not subject initially to cross-examination. Norton v. Ga. R. Bank &c. Co., 248 Ga. 847 (285 SE2d 910) (1982), aff’d, 253 Ga. 596 (322 SE2d 870) (1984). A movant for summary judgment does not have to be subject to cross-examination before his affidavit may be considered in support of a motion for summary judgment. Mustin v. C & S Nat. Bank, 168 Ga. App. 549 (309 SE2d 822) (1983). Under discovery, plaintiff had an opportunity to cross-examine the defendant on deposition, but failed to exercise such right; therefore, the affidavit is not subject to attack on such basis.

2. Bouwsma’s affidavit pierced plaintiff’s complaint, which was based solely upon OCGA § 51-1-40 (b), i.e., liability for selling, furnishing, or serving alcoholic beverages to a person in a state of noticeable intoxication. In her affidavit, Bouwsma expressly denied that Glenn was ever in a state of noticeable intoxication and that she ever sold, furnished, or served any alcoholic beverage to him. Thus, Bouwsma showed that two essential elements of the cause of action under OCGA § 51-1-40 (b) could not be met by the plaintiff. See Kappa Sigma Intl. Fraternity v. Tootle, 221 Ga. App. 890, 893 (473 SE2d 213) (1996). Therefore, she conclusively negated at least one essential element of plaintiffs cause of action. Goodwin v. Mullins, 122 Ga. App. 84 (176 SE2d 551) (1970). The burden of coming forward with any evidence to create a material issue of fact for the jury shifted to the plaintiff OCGA § 9-11-56 (e); Richards v. Tolbert, 232 Ga. 678 (208 SE2d 486) (1974). Plaintiff filed no affidavit or other evidence to contravene Bouwsma’s affidavit and to create a jury question so as to defeat summary judgment. See Greene v. Fulton-DeKalb Hosp. Auth., 177 Ga. App. 499 (339 SE2d 770) (1986). Therefore, defendant was entitled to the grant of summary judgment when plaintiffs attack on Bouwsma’s affidavit failed. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Decided September 10, 1999.

John R. Burdges, Anthony J. Morgese, for appellant.

Blasingame, Burch, Garrard, Bryant & Ashley, Andrew J. Hill III, Josh B. Wages, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    10152.
    HORSLEY v. McLEOD et al.

    The general rule that parol evidence will not be received to vary an unambiguous written contract applies to the contract for compensation for services in the sale of land in this case; and it was error not to strike the entire plea of the defendants, which the court below held to be sufficient so far as it set up that the sale was made, not under the written contract, but under a previous parol agreement, although holding it insufficient so far as it set up fraud in the proeui-ement of the wi'itten contract.
    Decided May 16, 1919.
    Rehearing denied July 22, 1919.
    Complaint; from city court of Dawson—Judge Edwards. September 7, 1918.
    Horsley sued McLeod and "Williams for $1,500 as compensation for his services in selling certain land for them. He alleged that under a written contract made with them on January 15, 1917, he sold for them on September 13, 1917, a certain farm for $17,500. A copy of this contract was attached to the petition, and was as follows: “Dawson, Ga., 1/15, 1917. Eor and in consideration of the sum of $1.00, the receipt of which is hereby acknowledged, I hereby give J. A. Horsley power of attorney and authority to sell for me the following property: one farm [described] at $16,000.00 net to us, to be paid on the following terms: Easy. I agree to pay him all over the gross amount. And I further agree not to cancel this contract before October 1st, 1917, unless I pay him the full amount of his commission, same as sale was made.” (Signed by the defendants.) The defendants filed a plea in which they alleged that the contract sued on was obtained by fraud; that by oral contract they placed the land with the plaintiff for sale, and that under the oral contract he was not to receive more than 5 per cent, as commission; that, acting under the oral contract, he made repeated efforts to sell the land; that subsequently he requested them to sign the written contract in question in order that he might make a good showing to a certain association of real-estate agents, and said that he wanted it only for that purpose and did not want it for the purpose of binding them, that they would not pass the dollar recited as consideration, and it was not to be binding; that relying on these representations they signed the contract, and would not otherwise have done so; that the representations were simply a device and trick of the plaintiff,' and were false and fraudulent. They alleged that the sale was not made under the written contract attached to the petition, but was made under an oral contract-made in the fall of 1912; and that under the contract they were due the plaintiff only $815 as commission for the sale. The plaintiff demurred to the allegations as to fraud and as to a parol contract. The demurrer to the plea was overruled except as to the allegation of 'fraud. The trial of the case resulted in a verdict for the defendants. The plaintiff excepted to the judgment on the demurrer and to the overruling of his motion for a new trial.

      R. R. Marlin> Yeomans & Wilkinson" for plaintiff. R. R. Jones, for defendant.
   Bloodworth, J.

Plaintiff, a real-estate dealer, sued the defendants, landowners, on a plain and unambiguous written contract for commissions for selling a tract of land. Defendants admitted signing the contract, but pleaded that it was procured by fraud, and the sale made by the plaintiff, not under the written contract, but under a previous verbal one. A demurrer to the plea was filed, and the following order passed: “It is ordered and adjudged that said demurrer be and the same is sustained in so far as the allegations as to fraud in obtaining the contract sued upon, the same being held insufficient, but as to the allegations touching another or a verbal contract, the same is allowed.” In Ware v. Ware & Harper, 20 Ga. App. 202 (92 S. E. 961), the court said: “The defendant admitted the execution of the contract which is the basis of this suit, and filed a plea of fraud in its procurement. The defendant could read and write, and there was no trick, artifice, or fraud practiced upon him which prevented him from reading the contract. The relation between the parties was that of landowner and real-estate agent employed for the purpose of negotiating a sale of the land. In respect to the services to be rendered by the real-estate agent, a relation of confidence existed between the owner and the agent. In respect to the compensation to be paid to the agent by the owner, the parties dealt at arm’s length. There is” nothing in the evidence to take this ease out of the general rule that parol evidence will not be received to add to, vary, or dispute the plain and unambiguous terms of a written contract.” Under this ruling the court erred in not striking the entire plea. This error rendered the further proceedings nugatory. Sec Sloan v. Farmers Bank, 20 Ga. App. 123, 125, 126, 127 (92 S. E. 893), and cases cited.

Judgment reversed.

Broyles, P. J., and Stephens, J., concur.


text:
    9324.
    JORDAN MERCANTILE CO. v. BROOKS et al.

    “1. Where one sells personal property, taking a purchase-money note reserving title in th? property until the note is paid, the holder of such note may recover the property in an action of trover, upon failure of the maker of the note to pay the same.
    “2. The fact that the transfer or assignment of such a note is made ‘without recourse’ on the payee will not operate to divest the note of its character as a debt for purchase-money with retention of the title to the property. Civil Code (1910), § 3345.
    “3. Since this right pertains to the ‘holder’, it follows the note through any number of transfers or assignments; and this is true whether the transfer makes reference to the property to which title is reserved or not. Civil Code (1910), § 3346.
    “4. It follows that where there are several transfers, some of which contain the words ‘without recourse’ and others do not, the last holder may sue in trover for the property to which title is reserved.”
    Decided June 9, 1919.
    Trover; from city court of Zebulon—Charles J. Lester, judge pro hac vice. September 25, 1917.

      H. A. Rider, for plaintiff. J. B. McDonald, for defendants.
   Bloodworth, J.

In this case this court certified to the Supreme Court certain questions, and the foregoing headnotes are taken from the answer. The full opinion of that court is in 149 Ga. 157 (99 S. E. 289). Under these rulings and the facts, the trial' court erred in directing a verdict for the defendant.

Judgment reversed.

Broyles, P. J., and Stephens, J., concur.


text:
    9364.
    Gulf Paving Co. v. City of Atlanta.
    Decided June 9, 1919.
    Action for money had and received; from Fulton superior court— Judge Bell. November 6,1917.
    The substance of the petition is set out in 22 Ga. App. 374 (96 S. E. 393). The decision there reported was reversed on certiorari.

      Anderson, Rountree & Crenshaw, for plaintiff.

      J. L. Mayson, 8. D. Hewlett, for defendant.
   Bloodworth, J.

The petition in this ease alleged a cause of action, and it was erroneous to dismiss the petition on general demurrer. See opinion of Supreme Court in this case, 149 Ga. (99 S. E. 374).

Judgment reversed.

Broyles, P. J., and Stephens, J., concur.


text:
    9391.
    MAYOR AND ALDERMEN OF SAVANNAH v. JONES.
    “1. The maintenance, by a municipality, of a large waste-paper wooden box as a receptacle for trash and waste-paper, and the removal of the contents thereof by the employees of the municipality, is a duty connected with the preservation of the public health.
    “2. The maintenance of such a box as just described and the removal of its contents is an act by a municipality in the performance of its governmental functions.
    “3. The courts will take judicial cognizance of the fact that the maintenance by a municipality of such a box and the removal of its contents is a duty connected with the preservation of the public health, and is a part of the governmental functions of the municipality.
    “4. Under the facts alleged in paragraphs 6 and 7 of the petition, the municipality was in the performance of a governmental function in maintaining and emptying the box above described, but the municipality was also under ministerial duty to keep its streets and sidewalks free from obstructions such as alleged. Consequently, under the facts alleged in the petition, at the time of the injury the exercise of the governmental function of emptying the box had ceased, and the ministerial duty of keeping the streets and sidewalks free from obstructions was obligatory, and the municipality would be liable in damages for negligence of its employees when the top or cover of the box was ‘left open’ so as to project it over the sidewalk and injure the plaintiff in the manner alleged. ”
    Decided June 9, 1919.
    Action for damages; from Chatham superior court—Judge Meldrim. November 33, 1917.

      R. J. Travis, D. 8. Atkinson, for plaintiff in error.

      W. R. Hewlett, N. J. Norman, contra.
   Bloodworth, J.

The foregoing headnotes are from the answers of the Supreme Court to questions certified to that court by this court in this ease. 149 Ga. 139 (99 S. E. 394). Applying the rulings of the Supreme Court to the pleadings in the case, it is clearly apparent that the trial judge did not err in overruling the demurrers to the plaintiffs petition.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


author: Bboyles, P. J.

text:
    10303.
    Maynard v. Atlanta Gas-Light Company et al.

    Decided June 9, 1919.
    Action for damages; from Eulton superior court—Judge Pendleton. November 19, 1918. (See Weyman v. Maynard, post.)
    The action was against the Atlanta Gas Light Company and S. T. Weyman. A demurrer of the gas company, on general and special grounds, was sustained and the petition dismissed as to that defendant; and the plaintiff excepted. The petition alleges in substance, that the plaintiffs husband and her brother-in-law rented jointly a certain house from the defendant Weyman, and, a few hours after they had moved into the house, in August, 1917, two employees of the defendant gas company came to it for the purpose of installing gas-meters, connecting up and testing the gas-fixtures, and turning on the gas for the use of the plaintiff and of the other residents of the house; that when these employees arrived the plaintiff and her sister requested them to make a careful examination of all the gas-fixtures and connections in the house; that shortly after the employees of the gas company had finished the work of installing the gas-meters, testing and connecting up the gas-fixtures and connections, and left the house, the plaintiff discovered that the bath-room was completely filled with gas, which had escaped and was then escaping through a hole in the ceiling, and that the entire bath-Toom .gas-fixture, instead of being connected in the ceiling, was Iving. entirely disconnected, in the bath-tub; that the plaintiff, with the assistance of a stranger who came into the house to aid her, threw open the door and tfie window of the bath-room in order that the gas might escape from it, and the stranger in a few minutes connected the gas-fixture with the hole in the wall, and thus stopped the leakage of gas; that about thirty minutes later this stranger stood upon a box in the middle of the bath-room and struck a match for the purpose of testing the connection between the gas-pipe or fixture and the hole in the wall, and was extending his hand in the direction of the hole or wall connection when suddenly and unexpectedly there was an explosion and a flame which spread over the entire bath-room where the plaintiff was then standing, and burned her in a manner described; that when this occurred she was standing about ten feet from the man who struck the match and in the doorway leading from the bath-room into the hall. It is alleged that the gas company was negligent: (a) in failing to have all gas-fixtures in the house securely and properly connected so that the gas when turned on would not escape; (1)) in failing, after notice and request, to examine all the gas-fixtures in the house, and in failing to connect them before installing gas-meters and connecting up and turning on the gas; and (c) in installing the gas-meters and connecting and turning on the gas in the house without first examining and safely and securely connecting all fixtures in the house and in particular the said bath-room fixtures. It is alleged that Weyman was negligent in not having the house in a safe and suitable condition for occupancy, and in not having the gas-fixtures safely and properly connected so that gas when turned on would not escape.
   Bboyles, P. J.

The petition, construed (as it must be) most strongly against the plaintiff, sets out no cause of action against the Atlanta Gas-Light Company, and the court did not err in sustaining that defendant’s demurrer to the petition.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.

In the demurrer of the gas company it was contended that the petition failed to allege facts showing that the company was under any duty relative to the character of the connection, or the examination or condition of the fixtures, beyond the meter and tho service pipes connected with it, or was under any duty to comply with the ' request made to the company’s employees.

Dorsey, Shelton & Dorsey, Sam A. Lalham, for plaintiff, cited:

Christo v. Macon Gas Co., 18 Ga. App. 455; Chisholm v Atlanta Gas-Light Co., 57 Ga. 29; Rollestone v. Cassirer, 3 Ga. App. 161 (3 a, b).

Smith, Hammond & Smith, Robert C. & Philip H. Alston, Blair Foster, for defendant, cited

Christo v. Macon Gas Co., supra, and the same case, 19 Ga. App. 541; Civil Code (1910), § 4426, and decisions as to plaintiff’s failure to use ordinary care to avoid injury.


author: Jenkins, J.

text:
    9986.
    BURNEY v. MAYOR AND COUNCIL OF BOSTON.
   Jenkins, J.

1. “A municipal corporation lias an incidental power to institute proceedings against, and remove from office for misconduct, all corporate officers, though the power to do so be not expressly given by the charter of such corporation.” Mayor etc. of Savannah v. Grayson, 104 Ga. 105 (30 S. E. 693).

2. In such eases the governing authorities may aet either judicially or ministerially. Where a municipal official, as in this case, is the incumbent of an office established by law with a prescribed tenure, and is not merely an appointee holding at the pleasure of the governing power, in order that the act of amotion may have the force and effect of a judgment it is a necessary prerequisite that notice shall first have been given to the delinquent official of the grounds or cause for his removal, and opportunity for a hearing granted him thereon.' Coleman v. Glenn, 103 Ga. 458 (30 S. E. 297, 68 Am. St. R. 108) ; Edge v. Holcomb, 136 Ga. 765, 768 (70 S. E. 644); Wright v. Gamble, 136 Ga. 376 (71 S. E. 795, 35 L. R. A. (N. S.) 866, Ann. Cas. 1912C, 372). Where the power of removal is thus exercised judicially, 'the judgment so rendered is generally conclusive upon the removed officer, unless it is subsequently set aside. Queen v. Atlanta, 59 Ga. 318; Mayor and Aldermen of Savannah v. Monroe, 22 Ga. App. 285 (96 S. E. 500).

3. In such a proceeding, where the governing authorities aet judicially, if there be an ordinance prescribing the form of procedure, the terms thereof must be adhered to and followed. 2 Dillon, Mun. Corp. (5th ed.), §§ 467, 468.

4. Where the ordinances relating to this subject provide that “for any neglect or violation of duty, the marshal and collector shall be liable on conviction [italics ours] to a fine not exceeding fifty dollars, suspension or expulsion, or a fine and either of the other penalties, in the discretion of the mayor and council,” and that, “if any officer charged with any offense shall request it, he shall be furnished with a copy of the charges against him, and, if he desires to make a defense, may appear before the mayor and council in person, or by attorney, and show cause, if any he can, why he should not be punished,” reference is had by the terms of the ordinance itself to the furnishing of pending charges, in order that such official can, if he desires, appear and make his defense. It does not have reference to the mere furnishing of a statement of the procedure and the grounds tliereof of an action which has already been taken.

6. Under the undisputed facts disclosed by the pleadings and the evidence in this case, the proceeding taken by the municipal authorities against the delinquent marshal was ministerial only; and where, thus acting ministerially, the governing authorities summarily suspend or discharge such an official for dereliction in his duties, without prior notice given or opportunity for him to be heard, the procedure has nothing of the binding force and effect of a judgment, and is not conclusive upon the suspended or discharged official. Oliver v. Americus, 69 Ga. 165.

7. In such a case the official who by virtue of the exercise of the ministerial powers of the governing authorities has thus been summarily suspended or discharged, not being concluded, is authorized in this State, unless such right has been waived, to bring his suit against the municipality for his wages or salary, without first having been reinstated. Oliver v. Americus, 69 Ga. 165, 169; Davis v. Cordele, 115 Ga. 770, 771 (42 S. E. 63). The rule in certain other jurisdictions seems to be different, some courts holding that reinstatement by a competent legal tribunal in direct proceedings taken for that purpose is always a condition precedent to such right of recovery, even though the act of amotion be purely ministerial, those holdings being to the effect that title to office can not be tried in an action to recover the salary incident thereto. See 28 Cye. 450, § 13 (d) ; 19 R. C. L. 94l) § 241; Selby v. Portland, 14 Or. 243 (12 Pac. 377, 58 Am. R. 307).

Decided June 12, 1919.

Rehearing denied July 17, 1919.

Complaint; from city court of Thomasville—Judge W. H. Hammond. July 13, 1918.

8. If an official who. has been duly elected to and who has qualified in an office, the tenure of which is fixed by statute, should be removed from office, not by virtue of a judicial proceeding taken for such purpose with notice first given, but summarily and by virtue only of the exercise of the inherent ministerial powers of the governing authorities, he is prima facie still entitled to the emoluments of the office; and upon his bringing suit therefor it is the right and privilege of the municipality to defend by setting up and proving either of the two following grounds of defense: 1st, the existence of any ground or cause whatever such as would justify the act of amotion; or 2d, in the event no such reason can be actually made to appear, it is still permissible to show as a ground of defense that the action of the governing authorities was nevertheless taken in good faith, and that the salary of the office has in the meantime been thus paid to- a de facto officer. Whether the governing authorities had justifiable cause for their action, and if not, whether the reasons existing were such as to authorize a finding that the acts of removal and the subsequent payment of the salary to a de facto officer were arbitrarily taken, or proceeded in good faith, are usually issues of fact to be determined by the jury. Thus, in a suit by such an official who has been thus removed, if the evidence is in conflict as to whether there was actual ground or cause for removal, it would be reversible error for the court to charge, without qualification, that “even if his removal is illegal, such officer can not recover against the city for salary during the period when his office was filled and his salary paid to another appointee.” Mattox v. Board of Education, 148 Ga. 577 (97 S. E. 532). But, since in this case the plaintiff himself admits that he refused to levy certain executions issued by the city, without showing by the record or even contending that they were void upon their face, it must be taken that the authorities had sufficient ground for removal, and consequently the question of good faith does not enter. Gladden v. Cobb, 73 Ga. 235; Singer Mfg. Co. v. Barnett, 76 Ga. 377; Wilbur v. Stokes, 117 Ga. 545 (43 S. E. 856).

Judgment affirmed.

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

Titus, Delde & Hoplcins, for plaintiff.

G. E. Hay, for defendant.

ON MOTION I’OR REHEARING.

■Whether the executions issued by the city would have been void upon their face had they shown that they were issued in whole or in part for amounts due the city for lights and water, fixtures, and appliances, including bath-tubs, etc., need not be considered by this court. Although the city fi. fas. which the marshal refused to execute do not appear in the record, still the undisputed evidence is to the effect that they did not show upon their face what constituted the items covered by the amounts stated therein; and it therefore affirmatively appears that the executions were not void upon their face for this reason.

Had the question of good faith on the part of the municipal authorities been in fact involved, then the excerpt from the charge quoted in paragraph 8 of the decision would have been reversible error, upon exceptions having been taken pointing out that the court failed to qualify the same to the effect that such action, if taken without sufficient cause, in order to afford protection to the city, must have been taken in good faith. However, irrespective of the fact that we do not consider the question of good faith to be involved in this case, the exception as actually taken to the portion of the charge complained of assigns error solely upon the ground that the charge as thus given was erroneous for the reason that where a de jure officer has been illegally removed, the payment of the salary to a de facto officer could not defeat the de jure officer’s right thereto, whereas, under the ruling recently announced by the Supreme Court in Mattox v. Board of Education, supra, such is not the law when such action is taken in good faith, even though without sufficient cause. The motion for a new trial makes no assignment of error based upon the failure of the court to thus qualify the charge excepted to in accordance with the rule thus stated.

Motion for rehearing denied.


author: Luke, J.

text:
    10046.
    BANK OF COMMERCE v. PHILLIPS.
    Under the law of Florida, which governs the contract in this case, the defendant, who was a member of a partnership engaged in the sawmill business, was not liable on the note sued on, which was given in the partnei'ship name by his partner-, foi- the purchase of shares of stock in a corporation; it appearing that the note was given without the knowledge or consent of the defendant, and was not necessary to the conduct of the business of the partnership, and not authorized by the contract of partnership, and there being no evidence as to any course of dealings which would authorize or ratify the execution of the note.
    The court did not err in directing a verdict for the defendant.
    Decided June 12, 1919.
    Rehearing denied July 17, 1919.
    Complaint; from Tift superior court—Judge Eve. July 4, 1918.

      Shackelford & Shackelford, 0. M. Smith, Fulwood & Hargett, for plaintiff.

      J. 8. Ridgdill, E. K. Wilcox, for defendant.
   Luke, J.

In the plaintiff’s petition it is alleged that the defendant is a member of “Gardner Lumber Company,” a firm composed of the defendant and Eobinson. It is conceded that the note sued on was executed in the name of “Gardner Lumber Company by Eobinson,” for the purchase of certain shares of stock in a corporation, and the stock-certificate was attached to the note as collateral security. It is further conceded that the note sued on was a Florida contract, and the issues raised by the pleadings were to be tried according to the law of Florida. The evidence was undisputed that the giving of the note was without the knowledge or consent of the defendant, and was not necessary to the conduct of the business of the'partnership, “Gardner Lumber Company,” which was engaged in the sawmill business at Gardner, Florida. The contract of partnership was in evidence, and by none of its terms was authority given to the partner Eobinson to- execute the note of the partnership or to create debts other than were necessary to the conduct of the business. In order for the plaintiff to recover against the defendant, the partner Eobinson must have been acting within the scope of the partnership, or the other partner, the defendant- here, must have known of the transaction or by some act ratified the execution of the note. In Lanier v. McCabe, 2 Fla. 32 (48 Am. E. 173), the Supreme Court held: “Where several persons form an association for the purpose of establishing and putting in operation a steam sawmill, one of the parties can not issue notes in the name of the company which shall bind the other members of the company, except the authority be given by the articles of their association, or otherwise. The partnership must be in a trade or concern to which the issuing or transfer of bills is necessary or usual, otherwise a copartner will not be liable for the act of his partner unless he give express authority.” See also Chandler v. Sherman, 16 Fla. 99. While ordinarily every partner is a general and authorized agent of the firm, his power to act as such agent must be within the scope of the partnership business.

No article of partnership authorized the execution of the note sued on; the note was given without the knowledge or consent of the defendant, and when knowledge came to him that the note had been given (which, according to the evidence, Avas when he received notice of intention to sue), he denied liability. In the evidence there Avas nothing to sIaoav such a course of dealings as would authorize or ratify the -execution of the note, and, there being no proof that the purchase of the stock for Avhich the note Avas given Avas necessary to the conduct of the business of the partnership, it Avas not error to direct a verdict for the defendant.

Judgment affirmed.

Wade, G. J., and Jenhins, J., concur.


text:
    10073.
    Saluda Wholesale & Warehouse Co. v. Rooney & Co.
    Decided June 12, 1919.
    Action on contract; from Chatham superior court—Judge Meldrim. July 19, 1918.
    Application for certiorari to review this decision was denied by the Supreme Court.
   Luke, J.

1. A contraít may be closed by a letter or telegram and become binding, but if it is claimed that a seller has become bound by an acceptance of his offer by the buyer, it must appear that the offer was accepted unconditionally and without variance. And where such buyer is buying and the seller is selling in the market of a particular trade or business, as in this case, both seller and buyer are bound by a universal custom applicable to that trade or business, unless the contract stipulates to the contrary or there is an agreement that the contract is made AA'ithout regard to such custom. See Phinizy v. Bush, 129 Ga. 479 (4) (59 S. E. 259) ; Louisiana Red Cypress Co. v. Gilmore, 13 Ga. App. 472 (79 S. E. 379). It Avas not error to admit evidence as to the universal custom of the trade in the sale of nitrates, the subject-matter of this suit.

2. The charge of the court Avas full and fair, and Avas not, for any reason assigned, erroneous.

3. The evidence supports the verdict, Avhich has the approval of the trial judge. It was not error to overrule the motion for a neAV trial.

Judgment affirmed.

Wade, O. J., and Jenhins, J., eoneur.

The Saluda Wholesale & Warehouse Company, a corporation of South Carolina, sued J. M. Y. Eooney & Company, of Savannah, Georgia, for damages on account of alleged breach, of contract for the sale of nitrate of soda by the defendant to the plaintiff. The trial of the case resulted in a verdict for the defendant. The plaintiff excepted to the overruling of its motion for a new trial, and to the refusal to strike a certain paragraph of the defendant’s answer, relating to an alleged custom of trade.

From the evidence it appeared'that by a letter dated October 31, 1916, the defendant offered to sell to the plaintiff 200 tons of nitrate of soda for $58.15 per ton, to be delivered in January, February, May, and June,-1917, and on the next day telegraphed to the plaintiff as follows: “ Subject immediate wire acceptance will shade quotation of yesterday five cents.” The plaintiff replied by telegram as follows: “Telegram received. We accept offer. Makeup two contracts each for one hundred tons, twenty-five tons monthly.” The defendant on the same day sent the contracts to the plaintiff to be signed, and sent with them a letter saying: “We confirm wires exchanged and now have your wire accepting our quotation of today. 4s per wire, we enclose herewith two contracts for 100 tons each, for January, February, May and June deliveries. Please accept both contracts and return to us. We will then forward our acceptance to you.” It was testified in behalf of the plaintiff that these contracts were received and signed on the part of the plaintiff and sent back in the mail. Eooney, the defendant (doing business under the name J. M. Y. Eooney & Company), testified that he waited until the 23d of November for the plaintiff’s acceptance, but did not receive the contracts back, and wrote to the plaintiff that he had not received its acceptance and therefore would not protect the sale. On December 4 the plaintiff notified the defendant that unless advised to the contrary immediately, it would buy nitrate “to replace the contract” with the defendant, and hold the defendant for the difference in price. The plaintiff afterwards bought the nitrates at a price in excess of the price stated in the defendant’s offer.

The paragraph of the defendant’s answer, referred to above, which the court refused to strike, was as follows: “Defendant further says that it is the custom of the nitrate trade to have an exchange of telegrams between purchasers and buyers for the purpose of arriving at terms and prices, but that these telegrams so exchanged are never considered contracts, but on the contrary are used by the purchasers and buyers solely for the purpose of discovering from each other what the terms of a sale may be. Defendant further says that the plaintiff in said case is well aware of the trade customs, and is well aware that telegrams are not considered as contracts.” The defendant introduced testimony as to the alleged custom, and on this subject George S. Alexander testified: “I know the general custom of this trade in Georgia, South Carolina and North Carolina. The custom in respect to contracts is that no contract is binding unless reduced to writing by both parties and exchanged.” In the motion for a new trial it is alleged that the court erred in admitting this testimony of Alexander-, .over the objection of the plaintiff, “the error being that this testimony was permitted to destroy the plaintiff’s right to recover on its written contract, and his entire right to recovery made to turn upon custom; the error being (2) that evidence as to custom would vary by parol testimony the written contract sued on.” It is alleged that the court erred also in charging the jury “that they might consider the evidence introduced by the defendant on the question of usage or custom touching the sale of nitrates; the error being that the contract in the case at bar was express, certain, and fixed, and had been assented to by both parties, and could not, therefore, be varied or changed by any custom.” Exception was taken also to the following instructions to the jury: “To make a usage or custom good, it must be known to the parties, but . . if the custom is universal, then every person who makes a contract is presumed to know of that custom, and that usage enters into the contract and binds him. The general custom of the business may show the time when the contract should be considered as closed by the parties.” “If the assent of the parties was not given until a written contract should be signed by both of them,—if that is the usage or custom in the nitrate business, and if that custom is so universal as to become a part of the contract, then you are to determine whether or not that contract had thus been completed.”

D. TI. Ciarle, for plaintiff.

0. E. Donnelly, Oliver & Oliver, contra.


author: 'Bkoyles, P. J.

text:
    10315.
    Barrett v. Allen.
    Decided June 13, 1919.
    Complaint; from city court of Monroe—Judge Anderson presiding. January 7, 1919.
    The suit was on an, account for 15% months board, and for expense of moving the defendant, laundry, etc. The defendant was the mother of the plaintiff’s wife. He and his wife and daughter testified that when the defendant came to their home to board she agreed to pay whatever her board was worth, and. said that she would not go there if not allowed! to pay board. No amount was agreed upon. It was testified that she boarded at the plaintiff’s house 15% months, and that $20 a month, as charged in the account, was a reasonable charge for her board, and was the usual charge in the town in which they lived; that the plaintiff moved her to his house with his own teams and money, and the amount charged for this was reasonable. The defendant testified that she did not agree to pay any board, but did pay her daughter, the plaintiff’s wife, $5 a month, and “that is all it is worth;” that she “did not agree to pay any more;” and that when she went to live with them she carried enough provisions and canned goods to last her two years. There was a credit of $65 cash on the account sued on, and the plaintiff testified that the defendant paid or gave this amount to his wife. The defendant-and others testified that during a part of the period mentioned she did not stay at the plaintiff’s house, but stayed with other children. The verdict was for the defendant.

      R. L. & H. C. Cox, for plaintiff.

      O. Roberts, for defendant.
   'Bkoyles, P. J.

1. Under tlie facts of the case the following charge was error: “The plaintiff can not recover in this case for services and board, unless it is shown that there was an agreement by which the defendant was to pay for them when she went to live with her son-in-law, Barrett [the plaintiff]. The law is that services rendered and board furnished by one near relative to another are presumed to be gratuitous, and the burden in such case is upon the plaintiff to show, by a preponderance of the evidence, that there was a contract between the parties by which such services and board were to be paid for by the party.” Murrell v. Studstill, 104 Ga. 604, 606 (30 S. E. 750) ; Wall v. Wall, 15 Ga. App. 156 (82 S. E. 791), and cases there cited.

2. As there must be a new trial of the case on account of the error in the charge of the court, the question whether the verdict is supported by evidence is not passed upon.

Judgment reversed.

Bloodworth and Stephens, JJ., concur.


author: Broyles, P. J.

text:
    10323.
    Bagwell, adm’x, v. Georgia Railway & Power Company.
   Broyles, P. J.

1. While the bill of exceptions recites that a verdict was directed in favor of the defendant, neither the bill of exceptions nor the motion for a new trial contains an assignment of error upon such direction. Therefore, under repeated rulings of this court and of the Supreme Court, the authority of the court to direct a verdict in favor of the defendant will not be passed upon, and the only question considered in that connection will be: Was the verdict authorized by the evidence ?

2. Section 638 of the Civil Code and section 547 of the Penal Code (1910) are identical and are taken from the same act (Ga. L. 1890-1, p. 134), and, when construed in connection with sections 544 and 545 of the Penal Code, it is apparent that the provisions of the two first-mentioned code sections are not violated where a person or corporation places temporarily, with the written permission of the county commissioners of Fulton county, a pile of cinders in a public “registered” road of that county. See, in this connection, Georgia Ry. & Power Co. v. Tompkins, 138 Ga. 596, 598 (75 S. E. 664).

3. The act creating a board of commissioners of roads and revenues of Fulton county (Ga. L. 1S80-1, p. 508) declares that the board shall have “exclusive jurisdiction and control . . in directing and controlling all the property of the county, as they may deem expedient, according to law, . ■. and to exercise such other powers as are granted by law, or are indispensable to their jurisdiction over county matters.” Under this broad grant of power the county commissioners have authority, in their discretion, to allow temporary obstructions to be placed in any of the county’s public roads. See, in this connection, Wright v. Floyd County, 1 Ga. App. 582 (58 S. E. 72), and authorities cited. This ruling is not in conflict with the decision in Decatur v. DeKalb County, 130 Ga. 483 (61 S. E. 23), and the other authorities cited by counsel for the plaintiff in error. Those eases hold in effect that county commissioners have no authority to virtually dispose of the county’s property by leasing it for a long term of years, or to permit permanent or quasi-permanent encroachments or obstructions upon its public roads, and are not applicable to the facts of the instant case.

4. Where a company is incorporated under the general law as a street and suburban railroad company it has authority to contract for carriage of passengers and freight, and where it contracts to deliver a carload of cinders at a certain point on its line, on a public road, outside of the corporate limits of any municipality, and, in pursuance of the contract, does deliver the cinders to the consignees by temporarily depositing them, under written permission of the county commissioners, in a public road at the point designated in the contract, and the consignees receive and accept them at that place, the carrier is not thereafter liable in damages to travelers on the highway for personal injuries caused by such obstruction. The duty of removing the obstruction within a reasonable time, and of taking all necessary and reasonable precautions to protect travelers upon the road from being injured .by it before its removal, rests upon the consignees and not upon the carrier.

Decided June 13, 1919.

Action for damages; from city court of Atlanta—Judge Reid. December 7, 1918.

Thomas J. Leivis, Hewlett & Dennis, for plaintiff.

Colquitt & Conyers, for defendant.

5. The court did not err in admitting in evidence the written permit from the board of county commissioners authorizing the defendant company to place the cinders temporarily in the public road, or the written acceptance by the consignees of such delivery.

6. If the admission of the other testimony complained of in the motion for a new trial was erroneous, the error was slight and does not require a new trial.

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

Judgment affirmed.

Bloodworlh and Stephens, JJ., concm\


author: Beoyles, P. J.

text:
    10399.
    Parrish et al. v. The State.
    Decided June 13, 1919.
    Accusation of possession of liquor; from city court of Savannah— Judge Rourke. February 13, 31, 1919.

      David S. Atlcinson, II. Mercer Jordan, for plaintiff in error.

      Walter C. Harbridge, solicitor-general, contra.
   Beoyles, P. J.

1. The court did not err “in failing to charge the jury that they must find the defendants guilty of every material allegation alleged in the accusation;” or “in failing to charge the jury that it must find the alleged offense was committed within two years of the date of the filing of the accusation.” If these instructions had been given to the jury, the defendants could have justly complained that the court virtually directed a verdict in favor of the State.

2. The evidence amply authorized, if it did not demand, the verdict returned, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloockoorth and Stephens, JJ., concur.


text:
    10436.
    ALSPAUGH v. TOWN OF CADWELL.
    1. Violation of an ordinance of the Town of Cadwell, -by the sale and delivery of goods without license, was sufficiently charged by the accusation, as amended by agreement; and the demurrer to the accusation was properly overruled.
    2. The record shows an ordinance of the Town of Cadwell which provides for a license tax for selling cigarettes and tobacco.

      3. The evidence supports the allegations in the accusation and the judgment rendered by the mayor.
    4. The interstate-commerce clause of the Federal constitution is not involved in this case.
    Decided June 13, 1919.
    Certiorari from Laurens superior court—Judge Kent. March 8, 1919.
    Application for certiorari to review this decision was denied by the Supreme Court.

      J. S. Adams, for plaintiff in error.

      Burch & Daley, contra.
   Bloodworth, J.

Plaintiff in error was arraigned before the mayor of the Town of Cadwell, charged “with the offense of selling and delivering goods; for the said F. W. Alspaugh, on the 10th day of June in the year of our Lord 1918, in the town aforesaid, did then and there unlawfully and with force and arms . . sell and deliver goods without business license, by selling, delivering, and collecting for 10,000 Beyno cigarettes to Cadwell Drag Company, and by selling, delivering, and collecting for other goods to Jenkins & Company and Parkerson & Company of said city, contrary to the laws of said town.” A demurrer was filed to the accusation, and the demurrer was overruled. Upon the hearing before the mayor the following facts were agreed upon: “On the 10th day of June, 1918, the defendant, F. W. Alspaugh, sold to the Cad-well Drug Company in Cadwell, Georgia, said town being a municipal corporation in the said county of Laurens, and the said Cadwell Drug Company being a merchant engaged in a retail business in the town of Cadwell, 10,000 Beyno cigarettes, and on the same date sold and delivered to Parkerson & Company and Jenkins & Company a certain quantity of chewing tobacco. The Cadwell Drug Company was a merchant buying goods from manufacturers, wholesale merchants, jobbers, their agents, representatives, and others, and selling the same to the retail trade, and not for the consumption of the Cadwell Drug Company, and the price at which said cigarettes were sold was $5 per thousand, and when sold the same were delivered to the said Cadwell Drug Company and other purchasers, and upon the consummation of the sale and upon delivery the defendant collected $49 in settlement of the bill; and the other two parties buying the tobacco on the same day were each merchants engaged in the retail merchandise business, and said tobacco was bought for the purpose of resale, and not for the purpose of consumption. Said Alspaugh had no place of business in Cadwell, nor did the Alsup Grocery Company, nor the E. J. Eeynolds Tobacco Company. Said Alspaugh had not taken out license to conduct a business of wholesale or retail dealer in cigarettes and tobacco in the Town of Cadwell.

“It was further admitted as true that the Town of Cadwell had the following ordinances, to wit: ‘Section 23. Any person or persons who shall carry on any trade, occupation, or business in the Town of Cadwell for which a license has been required for such trade, occupation, or business, whichever it may be, shall be guilty of the offense of violating this ordinance.’ And from the ordinance passed January 11, 1918, is the following: ‘Be it ordained by the mayor and town council of the Town of Cadwell, Georgia, and it is hereby ordained by authority of same, that the following licenses and taxes be levied and collected in the town for the year 1918.’ And subdivision C of the item specified is the following: ‘Cigarettes or cigarette paper, selling, furnishing, or storing the same, either wholesale or retail; tobacco, either wholesale or retail, $10.00.’ And it was provided further, to wit: ‘All business or trade not herein provided for will be fixed by mayor and council. Be it further ordained by the mayor and council that any person or persons violating any part of the license ordinance shall be punished as prescribed in section 5 of the Penal Code of the town.’ And section 5 reads as follows: ‘Any person or persons violating the ordinances of the Town of Cadwell made by [ ?] punished by fine, imprisonment, or work on the streets of said town, one or more of such punishments may be imposed, provided said fine shall not exceed fifty dollars ($50.00), and such imprisonment or time of labor shall not exceed thirty days.’ It was further admitted as true that there was no wholesale grocery business or other business dealing by wholesale in cigarettes, cigars, or tobacco, in the Town of Cadwell; it was also admitted as a fact that the ordinances introduced into the record are all the ordinances or by-laws of the Town of Caldwell relating to the charge made against the defendant, and that said Town of Cadwell has no other ordinance relating to the charges made or covering the same, and that the charges made were not in violation of any other ordinance.”

The defendant introduced J. H. Bailey, who swore in part: “I reside in Macon, Ga. I am employed by the E. J. Eeynolds Tobacco Company as division sales manager, located at Macon. I know F. W. Alspaugh. He is traveling salesman for E. J. Eeynolds Tobacco Company, which is located in Winston-Salem, North Carolina, where they are engaged in the-manufacture of tobacco and cigarettes. They dispose of their goods to wholesalers only by selling to jobbers. They do not sell retail trade. The paper I hold in my hand is a receipt for goods that he secured from the Alsup Grocery Company on June 10th. A part of these goods were delivered in Cadwell, Ga., and collected for, and the money turned over to the Alsup Grocery Company. This receipt is signed by the Alsup Grocery Company. We ship to the Alsup Grocery Company in carload lots or as near thereto as possible, the jobber paying the bill. In this instance the Alsup Grocery Company had already paid for the goods. The B. J. Eeynolds Tobacco Company employs and pays Mr. Alspaugh his salary, and he is employed by the Alsup Grocery Company in no capacity whatever. When Mr. Alspaugh sold this tobacco to the Cadwell Drug Company he was selling it for Alsup Grocery Company. The Eeynolds' Tobacco Company had no interest in that particular delivery.” Plaintiff in en;or, in his own behalf, testified as follows: “I sold the Cadwell Drug Company 10,000 cigarettes on the 10th day óf June, and delivered them the day I sold them, and collected the money. I sold them for the Alsup Grocery Companj''. They were manufactured by the E. J. Eeynolds Tobacco Company, by which concern I am employed. The Alsup Grocery Company has no control over me as salesman. When I take their goods out and sell them I am serving the E. J. Eeynolds Tobacco Company by selling their goods for the jobber. The more goods I sell for the jobber, the more' they can sell the jobber. I sold the Cadwell Drug Company 10,000 cigarettes, delivered them, collected the money, and turned it over to the Alsup Grocery Company. This is the form of receipt I gave for the goods.” The receipt was in part as follows: “1 hereby obligate myself to collect the cash from retail dealers, at the price’named, for the above amount of tobacco, as I deliver it to the retailers, and I further agree to turn over promptly to the. above jobber all money collected by me, or to return the tobacco in good condition to the above owner, the jobber, within six days.” While no witness swore, so far as the record shows, that the place óf business of the Alsup Grocery Company was in Dublin, Ga., the only reasonable inference from the evidence is that it was located there, and in the brief of counsel for each party it is stated that the Alsup Grocery Company is located in Dublin, Ga., and no injury can result to the plaintiff in error from this court taking this as true.

The trial resulted in the conviction of the accused, and he carried the case by writ of certiorari to the superior court. The certiorari was overruled, and Alspaugh excepted.

The overruling of the demurrer to the accusation, after the latter had been amended by agreement, was not error.

The first ground of exception is that “there is no ordinance of the Town of Cadwell levying a license tax against the defendant for selling cigarettes, either at wholesale or retail, in the Town of Cadwell.” We think the ordinance set out above is a complete answer to this exception. It provides for a license tax for selling cigarettes and tobacco, either at wholesale or retail.

The second ground of exception is that “The judgment was contrary to law, contrary to evidence, and without law or evidence to support it, for the reason, under the facts disclosed by the record, he was not doing or conducting a business in the Town of Cadwell, but was a transient dealer or peddler, and there is no ordinance in the Town of Cadwell requiring a license of a transient trader or dealer or peddler selling cigarettes or tobacco at wholesale or retail in said town.” The defendant was not accused of being a transient trader, dealer, or peddler. The accusation was based upon the ordinance above referred to, and we think the evidence abundantly supports the allegation in the accusation that he did sell, deliver, and collect for cigarettes and tobacco.

The third and fourth grounds of exception will be treated as abandoned, neither of them being argued in the brief of plaintiff in error.

The fifth ground of exception alleges that “The judgment was contrary to law and without law to support it, for the reason the defendant was selling interstate commerce for E. J. Eeynolds Tobacco Company, who resided and are doing business out of the State of Georgia, and is therefore protected by the laws of interstate commerce.” Under the facts of this case, the interstate-commerce clause of the Federal constitution is not involved. When the goods shipped by E. J. Eeynolds Tobacco Company from Winston-Salem, N. C., were received in Dublin, Ga., by the Alsnp Grocery Company, the interstate shipment was completed, and a license tax assessed after this imposed no burden on the interstate shipment. The receipt introduced in evidence, as well as the testimony of the plaintiff in error, showed that the goods which he sold belonged to' the Alsup Grocery Company of Dublin, Ga., and his testimony shows that he delivered the goods and received immediate payment therefor. The goods sold by Alspaugh in Cadwell were in Georgia at the time, and belonged to a Georgia concern. In this transaction there was no interstate commerce involved. The commerce which is protected by the Federal constitution is “the negotiation of sales of goods which are in another State for the purpose of introducing them into the State in which the negotiation is made.” See Caldwell v. North Carolina, 187 U. S. 622 (23 Sup. Ct. 229, 47 L. ed. 336). “The non-resident, in carrying on business with the citizens of this State, will be protected fully and completely in making and consummating contracts of sale, up to and including actual delivery to the piirchaser, but we do not believe it was ever contemplated by the commerce clause of the constitution, or by the decisions of the United .States Supreme Court construing it, that an agent appointed by a non-resident, not only to make a sale, but to perform some other act, not a necessary part of the sale and having no necessary connection with interstate commerce, would be exempt from the reasonable exercise of the taxing power of the State, operating solely upqn-the act which is not a necessary part of the contract of sale.” Browning v. City of Waycross, 11 Ga. App. 50, 51 (74 S. E. 566).

The principle announced in the'following quotation is the same as that under discussion: “Tl}e defendant’s occupation was offering for sale and selling sewing machines, by going from place to place in the State of Missouri, in a wagon, without a license. There is nothing in the case to show that'he offered for sale any machine that he did not have with him at the time. His dealings were neither accompanied nor followed by any transfer of goods, or of any order for their transfer, from, one- state to another; and were neither interstate commerce in themselves, nor were they in any way directly connected with, such commerce. The only business or commence in which he was engaged was internal and- domestic; and,' so-far as appears, the only goods in which he was dealing had

become part of the mass of property within the State. Both tire occupation and the goods therefore were subject to the taxing power, and to the police power, of the State.” Emert v. Missouri, 156 U. S. 311 (15 Sup. Ct. 370, 39 L. ed. 430).

We think the following principle, announced in the first headnlate of the decision in Duncan v. State, 105 Ga. 457 (30 S. E. 755), absolutely settles the instant case: “The interstate commerce clause of the Federal constitution has no application to sales of goods in this State, when it appears that the same had been manufactured in another State, shipped in quantities to an agent of the manufacturer residing in Georgia, by him deposited in a warehouse, and from thence delivered on retail orders obtained by a traveling agent of the manufacturer. Emert v. Missouri [supra], and authorities cited.” See also Price v. City of Atlanta 105 Ga. 358 (31 S. E. 619).

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


text:
    10462.
    Bramblett v. The State.
    Decided June 13, 1919.
    Conviction of assault with intent to murder; from Murray superior court—Judge Tarver. March 8, 1919.

      II. II. Anderson, for plaintiff in error.

      Joseph M. Lang, solicitor-general, R. Noel Steed, contra.
   Bloodworth, J.

The special grounds of the motion for a new trial are void of merit. There is ample evidence to support the verdict. Where no error of law is committed and “there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732) ; Bradham v. State, 21 Ga. App. 519 (94 S. E. 618), and cases cited.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


text:
    10472.
    HUMPHREY v. THE STATE.
    1. The usual general certificate of the trial judge, approving as true all statements of fact contained in a special ground of a motion for a new trial, will be construed by this court as approving as true only such statements in the ground as are purely statements of fact, and not as so approving other allegations therein, which, although stated as facts, should properly be construed as mere conclusions of the movant, based upon facts set forth in the ground.
    2. The evidence submitted in support of the ground based upon the alleged .fact that one of the jurors was related within the prohibited degree to the prosecutor in the case was met by a counter-showing which authorized the judge, as the trior of this issue of fact, to find that the alleged relationship had not been proved to his satisfaction. Accordingly this court can not hold that he erred in overruling this ground of the motion for a new trial.
    3. The verdict was authorized by the evidence, and the court did not err in refusing to grant a new trial.
    Decided June 13, 1919.
    Rehearing denied June 27, 1919.
    Indictment for possession of liquor'; from Warren superior court —Judge Walker. March 10,1919.' '
    Application for certiorari was denied by the Supreme Court in this case.

      L. D. McGregor, for plaintiff in error.

      B. 0. Norman, solicitor-general, M. L. Felts, contra.
   Broyles, P. J.

The first headnote alone needs elaboration. The amendment to the motion for a new trial in this case was based solely upon the alleged ground, that one of the jurors was related within the prohibited degree to the prosecutor in the case. The amendment (leaving out the formal parts) was as follows:

“(1) That when the solicitor-general called the above stated ease for trial, his honor B. P. Walker, the judge presiding during the trial of said ease, requested- -all -jurors that were related by blood or marriage to W. 0. Brinkley, the prosecutor in said case, to please let that fact be known to. the court, so that [a qualified and competent jury could be secured to try the ease] a qualified as a competent juror to try said case.

“(2) That the said A. M. Beese was chosen and sworn as a member of said jury which rendered a verdict of guilty on both counts in the indictment against-this movant in the above stated case, and participated as a member of said jury in finding the verdict of guilty against this movant and in returning said verdict of guilty in said case into court- and publishing said verdict of guilty in said case against this movant.

“(3) That L. D. McGregor was. the only and sole counsel representing the movant in the above-stated ease.

"(4) That this movant, neither his counsel, had no knowledge or notice of any kind or character of any kinship or relation existing between A. M. Beese, the said juror in the trial of the above stated ease, and W. 0. Brinkley, the prosecutor of this movant in the above stated"ease, before the trial of said case or during the trial of said [case]. That this movant, neither his counsel, had no knowledge or notice of any kinship or relation existing between A. M. Beese, juror in said case, and the said W. 0. Brinkley, prosecutor in said case, until some days after the trial of said case and until some days after the publishing of said verdict of guilty against this inovant in the above-stated case.

“(5) That the said A. M. Beese was disqualified to serve as a juror in said above-stated case because of his relationship by blood to the said W. 0. Brinkley, the prosecutor in said case, which relation was unknown to the movant or his counsel until some days after the movant had been found guilty and the verdict of guilty had been published by the jury in said case; that the said A. M. Beese, one of the jurors in said above-stated case, was related by blood to W. 0. Brinkley, the prosecutor in the above-stated case, within the prohibited degrees, in the following manner, to wit: that - Gardner, was the father of Sterling Gardner and Prior Gardner; that the said Sterling Gardner and the said Prior Gardner were full brothers by blood; that the said Sterling Gardner was the father of Mrs. Mary Bose Gibson (née Miss Mary Bose Gardner); that Mrs. Mary Bose Gibson (née Mary Bose Gardner) was the mother of Mrs. Sarah Brinkley (née Sarah Gibson); that Mrs. Sarah Brinkley (née Sarah Gibson) was the mother of W. 0. Brinkley, the prosecutor of this movant in the above-stated case; that the said Prior Gardner (who was the full brother of the said Sterling Gardner) was the father of Mrs. Fannie Culpepper (née Fannie Gardner); that Mrs. Fannie Culpepper (née Fannie Gardner) was the mother of Mrs. Drucilla Chapman (née Drucilla Culpepper); that Mrs. Drucilla Chapman (née Drucilla Culpepper) was the mother of Mrs. Sis Beese (née Sis Chapman), and that Mrs. Sis Beese (née Sis Chapman) was the mother of A. M. Beese, the juror in the above-stated case, who participated in the rendition of the verdict of guilty against this movant; that the said A. M. Beese, the juror in the above stated case, and W. 0. Brinkley, the prosecutor in the above stated case, were related by blood under the civil law within the ninth degree, and by the canon law within the fifth degree.

“The following diagram shows the relationship of A. M. Beese, the said juror, and W. 0. Brinkley, the said prosecutor; the Roman numerals indicate the relationship' by the canon law and the Arabic figures indicate the relationship by the civil law, to wit:

Wherefore,” etc.

The trial judge certified that-“The recital of facts contained in the foregoing motion for a new trial . . are hereby approved as true and correct.” It is contended by counsel for the plaintiff in error that this certification of the judge conclusively established the truth of the allegations in the ground that the juror was related within.the prohibited degree to the prosecutor, and accordingly disqualified. Wo can not take this view of the case, especially as the judge overruled this ground of the motion for a new trial. We think the only reasonable construction of the judge’s certification is, that he approved as true merely all of the many statements in the ground which were purely statements of fact, and that he did not intend to approve as true, and did not so approve, the allegations that the juror was related within the prohibited degree to the prosecutor, and was (for that reason) disqualified to act as a juror ,in the case. Such allegations, in the light of all the facts stated in the ground, should properly be considered as mere conclusions of the movant, based upon the evidence set forth in the ground, and not as statements of fact per se. • Whether the alleged relationship did exist, and whether the juror was thereby disqualified, were the very questions which the judge was called upon to determine from the evidence set forth in this ground of the motion. It is clear from a reading of this lengthy ground (which contained many statements purely of fact), and in the light of the judge’s overruling it, that he did not intend to approve as true the allegations therein that the juror was so related, and thereby disqualified to act as a juror in the case. This ruling is not in conflict with the decision in Harris v. State, 10 Ga. App. 70 (72 S. E. 516).

Judgment affirmed.

Bloodworih and Stephens, JJ., concur.


text:
    10502.
    TREMBLE, alias SHEPHERD, v. THE STATE.
    The breaking and entering necessary to constitute burglary were not shown by the prosecutor’s testimony that some one went into his store when he was gone,'—went in through the window “where a glass 12 by 16 was broken out 4 feet from the door,” or “slipped in the store” before it was closed up; and a conviction of that offense was unauthorized.
    Decided June 13, 1919.
    Indictment for burglary; from Butts superior court—Judge Searcy. April 1, 1919.

      O. M. Duke, for plaintiff in error.

      E. M. Owen, solicitor-general, contra.
   Bloodworth, J.

1. Plaintiff in error was convicted of burglary. 'In White v. State, 51 Ga. 285, the headnote is as follows: “If one enter a house with intent to commit a felony, but the entering is through an open door without any breaking, actual or constructive, the offense is not burglary; nor, under our Code, § 4386 [§ 146 of the Penal Code of 1910], is it a sufficient ‘breaking and entering into,’ that having entered with intent to commit a felony, he unbolts a door to get out.” The prosecutor in the instant case swore: “Some one went in my store when I was gone to supper; they went in through the window of my store, where a glass 12 by 16 was broken out 4 feet from the door, or he slipped in the store before I closed up and went to supper.” Applying the above-stated rule of law to the evidence just quoted, it will be readily seen that a verdict for burglary was unauthorized, and is without evidence to support it. See also Williams v. State, 52 Ga. 581; Strickland v. State, 12 Ga. App. 640 (3) (70 S. E. 1070).

2. In view of the foregoing ruling, it is unnecessary to consider the other assignments of error.

Judgment reversed.

Broyles, P. J., and Stephens, J., concur.


author: Bloodwortji, J.

text:
    10514.
    Ellison v. The State.
    Decided June 13, 1919.
    Indictment for misdemeanor; from Eloyd superior court—Judge Wright. March 31, 1919.

      W. B. Mebane, for plaintiff in error.

      O. H. Porter, solicitor-general, contra.
   Bloodwortji, J.

Plaintiff in error was convicted of appearing in an intoxicated condition on a public street in Rome. The only reason urged why a new trial should be granted is that “the evidence fails to show what produced the intoxication of plaintiff in error.” That he was drunk at the time and place alleged is not denied. Granting (but not deciding) that it is necessary for the State to show that “said drunkenness or intoxication may be caused by the excessive use of intoxicating wines, beers, liquors, or opiates,” the evidence was sufficient to show that the intoxication of the plaintiff in error was caused by the excessive drinking of beer, one of the intoxicating liquors named in the statute (Penal Code of 1910, § 442), for the violation of which he was indicted.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


text:
    10265.
    SCARBORO v. THE STATE.
    1. No intimation of opinion that the defendant’s witnesses had sworn falsely was contained in the instruction that -every witness is presumed to try to tell the truth.
    2. The instruction as to impeachment of witnesses by proof of general bad character, which was complained of on the ground that there was no such proof, was not such error as would require a reversal of the judgment.
    3. A ground of the motion for a new trial which complains of the admission of evidence but fails to show that objection was made at the trial will not be considered.

      (a) A direct exception on the same ground in a bill of exceptions tendered after the expiration of the prescribed time will not be considered, in the absence of exceptions pendente lite.
    4. The instructions complained of were not error when considered with the remainder of the charge of the court.
    6, 8. Failure to give instructions not requested, on the weight to be given evidence of good character, or on the law of confessions, is not cause for a new trial.
    7. Failure to charge on circumstantial evidence, where a conviction is not wholly dependent on such evidence, is not cause for a new trial.
    5, 9. The venue of the crime was sufficiently shown, and the evidence authorized the verdict.
    Decided June 14, 1919.
    Indictment for possession of liquor; from city court of Greensboro—Judge Brown. November 18, 1918.

      John B. Gamble, for plaintiff in error.

      Doyle Campbell, solicitor-general, Miles W. Lewis, solicitor, contra.
   Bloodworth, J.

The instruction by the court that “every witness is presumed to try to tell the truth” is not subject to the exception that it was an intimation of opinion that “the defendant’s witnesses had sworn falsely.”

The jury were charged that “a witness may be impeached in one of three ways: by disproving the facts testified to by him; by contradictory statements previously made bjr him as to matters relevant to his testimony and to the case, or by proof of general bad character.” This is alleged to be error and prejudicial to the accused because “there was no evidence submitted tending to impeach any of the witnesses testifying in said case, either for the State or the defendant, by proof of general bad character.” A similar complaint was made in Southern Railway Co. v. O’Bryan, 119 Ga. 150 (2) (45 S. E. 1001), and in that case the Supreme Court said: “It is improper for the judge to charge on the subject of impeachment by proof of general bad character, unless some attempt has been made to thus impeach a witness. Such an error, however, would not generally be a sufficient reason for the reversal of a judgment.” There is nothing in the instant case that takes it out of the general rule. See Mills v. Pope, 20 Ga. App. 820 (2) (93 S. E. 559); Amerson v. State, 18 Ga. App. 177 (6) (88 S. E. 998). The cases cited on this point in the brief of counsel for plaintiff in error are easily differentiated from this case, and in those cases there is nothing decided in conflict with the present ruling.

“All evidence is admitted as of course, unless a valid ground of objection is interposed, the burden being on the objecting party to state at the time some specific reason why it should not be admitted. A failure to make such objection will be treated as a waiver, and prevent the court, on a motion for a new trial, from inquiring as to the competency of the evidence.” Andrews v. State, 118 Ga. 1 (43 S. E. 852). “It is a well-established rule of practice that a ground of a motion for new trial based upon the admission of evidence should state the objection made to the evidence, and that such objection was urged at the time the objection was made; otherwise no question is raised for determination. Hill v. Chastain, 138 Ga. 750 (75 S. E. 1130); Dunn v. Evans, 139 Ga. 741 (3), 742 (78 S. E. 122); Chambers v. State, 141 Ga. 652 (81 S. E. 880); G. & F. Ry. Co. v. Stapleton, 143 Ga. 46 (84 S. E. 120).” City of Rome v. McWilliams, 145 Ga. 191 (2) (88 S. E. 931). As-ground 9 of the motion for a new trial fails to show that at the trial objection was made to the admission of the evidence complained of therein, under the decision cited no question is raised for determination by this court. ISee also National Council v. Van Giesen, 20 Ga. App. 211 (2) (92 S. E. 1022).

The same alleged error is complained of in the bill of exceptions, but the exception there taken, in regard to it can not be considered, as the bill of exceptions was not tendered within twenty days from the ruling of which complaint is made, and there are no exceptions pendente lite. Gaines v. State, 108 Ga. 772 (33 S. E. 632); Banks v. State, 114 Ga. 115 (39 S. E. 947); Regopoulas v. State, 115 Ga. 232 (41 S. E. 619); Wheeler v. State, 4 Ga. App. 325 (6) (61 S. E. 409).

When considered in connection with the remainder of the charge of the court and in the light of the evidence, there is no error in any of the excerpts from the charge embodied in other grounds of the motion for new trial.

The venue of the crime was shown by the evidence.

“In the absence of a written request, the court did not err in failing to charge on the weight to be given to evidence of good character.” McLendon v. State, 7 Ga. App. 687 (2) (67 S. E. 846); Mills v. State, 17 Ga. App. 116 (86 S. E. 280); Ellison v. State, 137 Ga. 193 (7) (73 S. E. 255).

“The case was not one depending wholly upon circumstantial evidence, and it furnished no ground for a new trial that the court failed to charge the law touching such evidence. Cliett v. State, 132 Ga. 36 (63 S. E. 626). gee also Hicks v. State, 146 Ga. 221 (4) (91 S. E. 57); Smith v. State, 11 Ga. App. 89 (10) (74 S. E. 711); Fuller v. State, 10 Ga. App. 34 (2) (72 S. E. 515).” Conley v. State, 21 Ga. App. 135 (4) (94 S. E. 261).

“Though the evidence authorized a charge to the jury on the law of confessions, failure to instruct them on that subject, in the absence of an appropriate written request that they be so instructed, is not cause for a new trial.” Cook v. State, 9 Ga. App. 208 (2) (70 S. E. 1019). “In the absence of a special request so to do, the court is not bound to charge Penal Code § 1005, as to the weight to be given confessions. Malone v. State, 77 Ga. 768 (5); Sellers v. State, 99 Ga. 212 [25 S. E. 178].” Walker v. State, 118 Ga. 34 (3) (44 S. E. 850). The principle announced in these cases disposes of the ground complaining of the failure of the judge to charge the jury upon the subject of “confessions and admissions.”

There was evidence to support the finding of the jury.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


author: Bloodwortii, J.

text:
    10384.
    Hudson v. The State.
    Decided June 14, 1919.
   Bloodwortii, J.

1. The judge did not err in refusing to charge as requested, or in his rulings on evidence, as complained of in the 2d and 3d special grounds of the motion for a new trial.

2. In the remaining special ground of the motion for a new trial two distinct statements, made by the court to counsel in the presence of the jury, are set out, and the movant “insists that the statements of the court as above set out were error for the following reasons: 1. It was not the law, as the court did not give the defendant the right that he was entitled to being submitted to the jury, that is' carrying a pistol in a sudden emergency. 2. It was prejudicial to defendant’s interest and an opinion of the court.” The first of these “reasons” is not referred to in the brief of counsel for plaintiff in error, and this part of the ground will be treated as abandoned. The second reason does not point out with sufficient definiteness the error of which complaint is made. Prom it this court can not tell to which of the two “statements” the word “it,” used in this “reason,” refers, or in which of the two “statements” an opinion is claimed to have been expressed, or what that opinion was.

3. The evidence authorized the verdict, and a new trial was properly refused.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.

Indictment for misdemeanor; from Gilmer superior court— Judge Morris. February 8, 1919.

Herbert Clay, B. L. Smith, for plaintiff in error.

John T. Dorsey, solicitor-general, William Butt, contra.


author: Stephens, J.

text:
    10616.
    Broxton et al. v. The State.
    Decided June 14, 1919.
    Motion to change venue; from Ware superior court—Judge Summerall. May 13, 1919.

      Dickerson & Kelley, Parker & Parker, for plaintiff in error.

      A. B. Spence, solicitor-general, contra.
   Stephens, J.

1. While it is mandatory upon the judge to whom a petition for a change of venue is presented in behalf of a defendant in a criminal case, under the act approved August 21, 1911 (Acts of 1911, p. 76), to change the venue if the evidence submitted should reasonably show that there is a “probability or danger of lynching or other violence,” it is primarily a question for the judge, upon the hearing of such petition, to determine from the evidence whether or not such probability or danger of lynching or other violence exists; and where the evidence upon such issue conflicts, the judgment denying the defendant’s motion to change the venue will not be reversed, unless manifestly erroneous. Where the evidence fails to reasonably show the probability or danger of lynching or other violence, it is not error on the part of the judge to refuse to change the venue. See Wilburn v. State, 140 Ga. 138 (78 S. E. 819) ; Shepherd v. State, 141 Ga. 527 (81 S. E. 441) ; Graham v. State, 141 Ga. 812, 818 (82 S. E. 282); Nice v. State, 22 Ga. App. 136 (95 S. E. 534).

2. Evidence that the defendant would receive a fair and impartial trial in the county wherein the alleged crime was committed was relevant, to throw light upon the state of the public mind and the consequent probability or danger of lynching or other violence.

3. The judge did not err in refusing to change the venue.

Judgment affirmed.

Broyles, P. J., and Bloodworih, J., concur.


text:
    10388.
    BARBOUR v. THE STATE.
    1. The instruction to the jury to the effect that the method in which evidence is acquired is not a matter for determination by the jury, or for approval or disapproval by a jury, and that “evidence is admissible no matter how acquired,” was not error, especially in view of the additional instruction that the method of obtaining the evidence could not be considered unless it should throw light on the circumstances of the. case, and by that means go to the credibility of a witness, and that the credibility of a witness is exclusively a matter for the jury to determine.
    2. Error in the judge’s statement of the contention of the State as to the quantity of whisky found in the defendant’s residence, the amount so stated being two half-pints, when the amount found as shown by the evidence was only one half-pint, does not require a new trial. The difference was immaterial; and it must have been apparent to the jury that the judge’s statement as to the quantity was inadvertent.
    3. The omission of instructions not requested on the law of alibi was not error, under the facts of the case.
    4. The verdict was authorized, and there was no error in overruling the certiorari.
    Decided June 19, 1919.
    Certiorari; from Chatham superior court—Judge Meldrim. December 17, 1918.

      B. L. Golding, J. F. Bernhardt, for plaintiif in error.

      Walter 0. Ilartridge, solicitor-general, contra.
   Broyles, P. J.

The trial court did not err in charging the jury as follows: “I charge you that the method in which evidence is acquired is not a matter for determination of any jury, that the law of this State is that evidence is admissible no matter how acquired; so the methods, if any, in this case, that were used to acquire the evidence is not for the approval or disapproval of this jury and is not an issue for you to decide.” This is especially true since, in immediate connection therewith, the judge added the following instructions: “The credibility of a witness is exclusively a matter for the jury to determine; what the truth of the testimony is is a matter for you to decide, but the method in which the evidence is acquired, as a general statement, can not be considered by the jury in determining the guilt or innocence of a defendant, unless they should throw light on the circumstances of the case, and by that means go to the credibility of a witness.”

Upon the trial of the case one half-pint of whisky, which the testimony showed was found in the defendant’s residence, was introduced in evidence. The trial judge erroneously stated in his charge that the State contended that the defendant had in his residence two half-pints of whisky, which had been put in evidence. This error, however, in our opinion, does not require a new trial. Under the law the guilt of the defendant did not depend upon the quantity of whisky in his possession. lie was equally guilty whether he had one half-pint or two half-pints. Besides, the testimony was clear and explicit that only one half-pint of whisky was found in the defendant’s house, and the jury, of course, had only one half-pint of whisky out with them as evidence in the case. It must have been clearly apparent to them that the judge’s statement as to the quantity of the whisky found and introduced in evidence was merely an inadvertent slip of the tongue.

The evidence authorized the ■ charge complained of in the 5th special ground of the motion for a new trial.

' Under the facts of the case the trial court did hot err, in the absence of a timely and appropriate written request, in failing to instruct the jury upon the law pf alibi.

The verdict was authorized by the evidence, and the judge of the superior court did not err in overruling the certiorari and sustaining the judgment of the trial court.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    10638.
    Crawley v. The State.
    Decided June 19, 1919.
    Rehearing denied July 3, 1919.
   Broyles, P. J.

1. The motion by the State to dismiss the bill of exceptions is denied. The questions raised in the motion could have been made in the trial court, and, it’ not appearing from the record that they were raised there, they will not be passed upon „by this court. Bolton v. City of Newnan, 147 Ga. 400, (94 S. E. 236), and authorities cited.

2. Upon the motion to change the venue the evidence was conflicting on the material issues, and it does not appear that the judge abused his discretion in refusing to grant the motion. See, in this connection, Wilburn v. State, 140 Ga. 138 (78 S. E. 819); Broxton v. State, ante, 31 (99 S. E. 635).

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.

Indictment for murder—motion to change venue; from Union superior court—Judge J. B. Jones. May 19, 1919.

In the motion to dismiss the writ of error it was contended that the act of 1911 as to change of venue and as to exceptions in such cases (Ga. L. 1911, pp. 74-7) is unconstitutional and wholly void, and the bill of exceptions was unauthorized.

Hughes Spalding, John A. Sibley', for plaintiff in error.

J. G. Collins, solicitor-general, Pal. Haralson, W. E. & T. S. Candler, contra.


author: Stepiiens, J.

text:
    10169.
    Brantley v. Watt Brothers Company.
    Decided June 27, 1919.
    Complaint; from city court of Thomasville—Judge W. II. Hammond. September 26, 1918.

      Clifford E. Hay, Eldon L. Joiner, for plaintiff in error.

      Tilus, Delcle & Hoplcins, contra.
   Stepiiens, J.

To a suit on promissory notes tlie defendant filed a plea in which he admitted the execution of the notes sued on, but set up that after the execution of the notes he and the plaintiff entered into an agreement by the terms of which he was to work for the plaintiff dt a certain salary, and so much of such salary was to be retained at the end of each month by the plaintiff to apply as a payment on the notes sued on; that after the expiration of a year the plaintiff discharged him and thereby breached the contract; that “the new contract superseded the notes sued on and was a novation of the contract heretofore existing.” Such a plea, showing on its face that the original debt was not extinguished, and that there was no intention on the part of the parties to extinguish it, but that only the mode or method and time of payment was to be changed, failed to set up a novation, and the trial judge did not err in sustaining the general demurrer' to the plea and rendering-judgment for the plaintiff for the full amount sued for.

Judgment affirmed.

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


text:
    10185.
    WILLARD BAG AND MANUFACTURING COMPANY v. EMPIRE STATE GUANO COMPANY.
    Where in a contract for the sale and purchase of goods there is no agreement as to the identity of the thing sold, an action for breach of the contract by refusal to accept the goods tendered is not maintainable. Identification of the thing sold is essential to a contract of sale.
    Decided June 27, 1919.
    Complaint; from city court of Americus—Judge Harper. October 7, 1918.

      W. A. Dodson, for plaintiff.

      Shipp & Sheppard, for defendant.
   Stephens, J.

The Willard Bag and Manufacturing Company brought suit in the city court of Americus against the Empire State Guano Company, alleging that they entered into a written contract whereby the plaintiff sold to the defendant thirty thousand bags at the price of $78 per thousand. The contract was attached to the petition and contained a condition,—“Printing one side in black, or if red 50^ per M. more.” It is not alleged in the petition whether, the defendant ordered red or black printed bags. On the face of the contract it is shown that the red bags were higher in price. It does' not appear that an agreement had been reached between the parties as to this particular feature of the contract. No identification of the thing s'old is alleged, and as that is an essential element for the recovery for a breach of a contract of sale, the trial judge did not err in sustaining a demurrer to the petition, on the ground that it did not set out a cause of action.

Judgment affirmed.

Broyles,-P. J., and Bloodiuorth, J., concur.