author: Jenkins, P. J.

text:
    10453.
    Marshall v. Armour Fertilizer Works.
   Jenkins, P. J.

1. “Whenever any officer of this State shall have taken possession of any property under process in any case of trover, and neither the plaintiff nor defendant shall replevy such property, and such property remains in the hands of such officer, and is of a perishable nature or liable to deterioration from keeping, or there is expense attending the keeping of the same, the same may be sold under the provisions of section 6068 of the code.” Civil Code (1910), § 5153; Glisson v. Heggie, 105 Ga. 30 (31 S. E. 118); Our Bank v. Corry, 145 Ga. 385 (89 S. E. 365); Phillips v. Taber, 83 Ga. 565 (10 S. E. 270). Under the provisions of section 6069 of the code, if the property be live stock, it may be sold as therein provided after tliree-days notice. Where a sale is advertised on December 25 to take place on December 27, there is a failure to comply with the legal requirement governing the sale; since where a number of days is prescribed for the exercise of any privilege or the discharge of any duty, only the first or last day shall be counted. Political Code (1910), § 4, par. 8; English v. Ozburn, 59 Ga. 392; Rusk v. Hill, 117 Ga. 722, 726 (45 S. E. 42).

9 While it is true that a purchaser of property at a void sale acquires no title thereto (Kirkland v. Gaskins, 20 Ga. App. 235, 92 S. E. 965; Bacon v. Hanesley, 22 Ga. App. 704, 97 S. E. 101), the mere fact that the sheriff had not advertised a sale of personal property had under the provisions of sections 5153, 6068, and 6069 of the Civil Code (1910), for the full three days as therein provided, would not of itself render the sale void. The purchaser at a sheriff’s sale depends upon the “judgment, the levy, and the deed,” all other questions being between parties to the judgment and the officer; it being sufficient for the purchaser that the sheriff had obtained authority to sell and had executed to him a title. The provisions of law governing the advertisement of the property for a particular time or in a particular way are merely directory to the sheriff, and any such neglect on his part may subject him to a suit for damages at the instance of the party injured, but does not affect the title of the purchaser unless there was actual fault on the purchaser’s part, such as collusion between him and the sheriff. Brooks v. Rooney, 11 Ga. 423 (56 Am. D. 430); Civil Code (1910), § 6059; Hendrick v. Davis, 27 Ga. 167 (73 Am. D. 726); Solomon v. Peters, 37 Ga. 251, 256 (92 Am. D. 69); Wallace v. Trustees, 52 Ga. 165, 166; Jeffries v. Bartlett, 75 Ga. 230; Conley v. Redwine, 109 Ga. 640, 644 (35 S. E. 92, 77 Am. St. R. 398). Even the fact that the purchaser was put upon notice that such a merely directory duty of the officer had not been complied with would not, in the absence of fraud or collusion on the part of the purchaser, render the sale void and thus impair the title so acquired. Johnson v. Reese, 28 Ga. 353, 355 (73 Am. D. 757).

3. It being undisputed that the plaintiff in this case had authorized the sheriff to notify the defendant of the plaintiff’s intention to apply for leave to sell, this was equivalent to a permission for the sheriff to proceed in the plaintiff’s name in obtaining such an order, and it therefore becomes unnecessary in this case to decide whether in such a proceeding the sheriff would ordinarily have the right to proceed in the name of the plaintiff rather than in his own.

Decided November 6, 1919.

Trover; from Taylor superior court—Judge Howard. February 10, 1919.

Armour Fertilizer Works instituted a bail-trover proceeding against Marshall to recover certain mules. The defendant answered that he bought the mules at a sheriffs sale made by virtue of a previous bail-trover proceeding instituted by the same plaintiff against D. A. Youngblood. He sought to recoup damages against the plaintiff for malicious use of the present legal process, alleging that the proceeding was instituted and prosecuted maliciously and without probable cause, and that the plaintiff was a nonresident corporation. From the evidence on the trial it appeared that D. A. Youngblood owed the Armour Fertilizer Works $383 on a promissory note payable October 1,1916, secured by his bill of sale of these mules to the fertilizer works, that he failed to pay the note when due, and the fertilizer works instituted a bail-trover proceeding against him, and the sheriff seized the property described in the bill of sale; that neither the fertilizer works nor Youngblood replevied the property, and, the judge of the superior court being absent from the county, the sheriff, after proper notice, applied to the ordinary in the name of the Armour Fertilizer Works, for leave to sell the property under the provisions of the Civil Code (1910), § 5153, as being perishable and expensive to keep; that on December 25, 1916, the ordinary granted an order directing the sheriff to sell the property, and the sheriff advertised it to be sold on December 27, 1916, and on that day sold it; that an attorney for the Armour Fertilizer Works appeared at the sale and interposed objections, stating to the sheriff and to the public, including Marshall, that the property was being sold illegally because it had not been properly advertised; that the sheriff proceeded with the sale, and C. B. Marshall, the defendant in the present proceeding, bought the mules, paying for them $235.70. The Armour Fertilizer Works then instituted this proceeding, claiming title to the property under the bill of sale executed by Youngblood, and contending that the sheriff’s sale was void because not properly advertised, and that Marshall, having bought the property with notice of this fact, acquired no title. After hearing the evidence the court directed a verdict against the plea of recoupment, and then directed a verdict in favor of the plaintiff in the trover suit. The defendant’s motion for a new trial was overruled and he excepted.

4. Under the rulings made in the two preceding paragraphs, the court erred in directing a verdict for the plaintiff.

5. The court did not err, however, in refusing to allow the defendant’s claim for damages by way of recoupment, whereby the defendant sought to recover for alleged malicious use of the present legal process. There are three essential elements which must appear before one can recover for malicious use of legal process: (1) malice; (2) want of probable cause; and (3) that the proceeding complained of had terminated in favor of the defendant therein before suit for damages based upon it was brought. Thus, where a plaintiff had instituted a bail-trover action against a defendant, the defendant could not in the same case, by way of recoupment, recover damages for such alleged malicious use of the legal process, since the proceeding complained of had not terminated in the defendant’s favor. Fender v. Ramsey, 131 Ga. 440 ( 62 S. E. 527). In point of fact, the record as now presented precludes the possibility of even a future recovery on such a ground, since the judgment in favor of the plaintiff in the trover proceeding, even though erroneous, is nevertheless sufficient to establish conclusively the existence of such a probable cause as prevents the maintenance of such an action. Short v. Spragins, 104 Ga. 628 (30 S. E. 810); McElreath v. Gross, 23 Ga. App. 287 (98 S. E. 190).

Judgment reversed.

Stephens and Smith, JJ., concur.

Jere M. Moore, G. B. Marshall, for plaintiff in error.

O. W. Foy, contra.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    10455.
    COLLINS v. HARRISON.
    1. “A bona fide purchaser, without notice, of a crop grown on rented premises will be protected against the lien, general or special, of the landlord for rent.” Thornton v. Carver, 80 Ga. 397 (6 S. E. 915).
    2. In the motion for a new trial it is alleged that the court erred in charging the j|ury as follows: “If the defendants in fi. fa. were indebted to the plaintiff in fl. fa. for rent of the land on which the alleged crops were raised for the year in which they were raised, and sold such crops to the claimant without paying the rent, and claimant bought such crops without notice that said rent had not been paid, the claimant took such property subject to the plaintiff’s claim of rent, due for the premises as aforesaid, and under such circumstances such property would be subject to the fi. fa. for whatever amount may still be due for such rent.” This is clearly error, under the ruling made above and under the particular facts of this case. (See note, post, p. 407.)
    3. The two excerpts complained of in the 2d and 3d grounds of the amendment to the motion for a new trial are as follows: “Notice sufficient to excite attention and party on inquiry is notice of everything to which it is afterwards found sueli inquiry might have led.” “If, at the time claimant purchased the property in dispute as contended by him, the defendants in fi. fa. were due the plaintiffs rent for the premises on which said property was raised as alleged by plaintiff, and at the time of such purchase the circumstances were sufficient to put the claimant on notice that such rent was due and unpaid, then such property would be subject for whatever amount is due plaintiff for such rent.” These instructions contain correct abstract statements of the law, and in the absence of the entire charge (which is not specified in the bill of exceptions nor brought up in the record, and which does not affirmatively appear to have been reduced to writing and to be therefore available to this court), it must be assumed by this court that these instructions, when considered in connection with the remainder of the charge, were applicable to the case. Corbin v. McCrary, 22 6a. App. 472 (4), 473 (96 S. E. 445).
    Decided November 6, 1919.
    Levy and claim; from Montgomery superior court—Judge Graham.' February 6, 1919.

      A. C. Bafold, for plaintiff in error. M. B. Calhoun, contra.
   Smith, J.

This case grew out of a distress warrant proceeding instituted by the defendant in error against three named parties for rent due upon certain described premises. On the levy of the distress warrant J. C. Collins filed a claim to the property in dispute. The claimant admitted that the rent was due as alleged in the distress warrant, but contended that he was a bona fide purchaser for value of the crops levied upon before the levy was made, and that he had no notice that the rent was not paid. The trial of the claim case resulted in a verdict finding the property subject. The claimant made a motion for a new trial, which was overruled, and he excepted.

The case was tried upon the following agreed statement of facts: “It is admitted as true that A. M. Moses rented the land described in the distress warrant proceeding to W. J., J. W. and E. A. Whitlock, and they executed notes for said rent, and that the notes were transferred by him to M. A. Harrison, and that the sum distrained for is due and unpaid by said Whitlocks for the rent of said land for the year 1916, as in the affidavit alleged. It is further admitted as true that the corn and hay, as shown by the entry of the levying officer, was grown upon the premises described in the distress-warrant proceedings the year 1916, and that at the time of the suing out of the distress warrant there was no crops on he rented premises, the same having been, prior to the levy, disposed of by W. J., J. W., and E. A. Whitlock, and that said Whit-locks were insolvent and had no property out of which the rent claimed could be realized. J. C. Collins, claimant, sworn in his own behalf testified as follows: I am the son-in-law of W. J. Whitlock, having married his daughter, and J. W. and E. A. Whit-lock are my brothers-in-law. I own the corn and hay levied upon. I bought it from W. J. Whitlock before the distress warrant proceeding was sworn out. Mr. Whitlock hauled this corn to my place, putting a part of it in the barn and the balance in the smoke house. The hay I had Mr. Whitlock put in the barn on the premises of Mrs. Lou C. Gibbs. I didn’t pay for this corn and hay as soon as it was placed, but I had paid Mr. W. J. Whitlock for it before it was levied on. I paid him in the barber-shop in Uvalda, in the presence of Mr. B. F. Hart and Mr. C. B. Anderson, and I asked them to witness tire payment of the money. I give one dollar a bushel for corn, and $17 per ton for hay. I bought it to speculate on, and in 1917, in early spring, Mr. W. J. Whitlock’s sons hauled some of this corn and hay from my house. I sold it to them for more than I gave for it, and I also sold some corn and hay to other parties in the neighborhood. I practiced medicine and paid for the corn and hay with money I made in that way and from the farm. I knew when I bought the corn and hay that it was grown on land rented by W. J., J. W., and E. A. Whitlock, but did not know that the rent had not been paid, never asked anything about this, didn’t know but what they were selling the corn and hay to pay rent. I bought the corn and hay in good faith and paid for the same as I had agreed to. E. F. Hart, sworn for the claimant, testified as follows: A few days before the corn and hay levied upon was seized, Dr. J. 0. Collins stated to me that he wanted me to witness the payment by him to Mr. W. J. Whitlock, some money that he (Collins) owed Whitlock for some corn and hay that he had bought, and I saw Mr. Collins deliver to Mr. Whitlock a considerable sum of money, I don’t know how much. This money J. C. Collins said, when he gave it to Whitlock, "is what I owe you for com and hay I bought from you.” This was in the barbershop in Uvalda one Saturday night. Mr. C. B. Anderson was present also. C. B. Anderson, sworn for the claimant, testified: “Before the corn and hay was levied on, the claimant, Dr. J. 0. Collins, came to me in Uvalda, Ga., one Saturday night, and said to me that he wanted me to witness his payment to Mr. W. J. Whit-lock, some money that he owed for some corn and hay. I saw Dr. J. C. Collins deliver to W. J. Whitlock on this occasion quite a sum of money, I don’t know how much. J. C. Collins said to W. J. Whitlock at the time he paid it, This is the money for the corn and hay that I bought from you.’ Mr. B. F. Hart was also present when this money was paid.” It is not necessary to add anything further to the rulings in the headnotes.

Judgment reversed.

Jenkins, P:J., and Stephens, J., concur.

Note by the Court. After the judgment of this court in this case had been pronounced and entered upon the minutes, and the remittitur issued and transmitted to the trial court and there received, information came to this court that a mistake had been made by the clerk of the court below in transcribing the record, and that in fact the court below in the charge to the jury did not use the word “without,” which appears in the excerpt set out in the second headnote of the foregoing decision, but did use the word “with.” The adjudication was had upon the record as certified by the clerk of that court. No mistake or error, even by inadvertence, was made by this' court in arriving at its judgment, nor by its clerk in transmitting the remittitur. This court lost jurisdiction of the case after its judgment had been rendered and entered on the minutes and the remittitur transmitted to the court below and there received; and consequently this mistake of the clerk of the court below cannot be corrected. But in justice to the trial judge this court takes pleasure in adding this note to the decision. See Knox v. State, 113 Ga. 929 (39 S. E. 330); Seaboard Air Line Railway v. Jones, 119 Ga. 907 (47 S. E. 320).


text:
    10458.
    Lovett v. Vickers Brothers.
    Decided November 6, 1919.
   Smith, J.

This was a statutory motion to set aside a default judgment. Civil Code (1910), §§ 4358, 5958. It not affirmatively appearing on the face of the motion, or from the evidence submitted on the hearing, that the motion was made in term time, and this being essential to the validity of such a motion, it should have been dismissed; and the order of the court overruling the motion will be construed as a dismissal. Bedgood v. Floyd, 20 Ga. App. 617 (93 S. E. 218).

Judgment affirmed.

Jenloms, P. J., and Stephens, J., concur.

Motion to set aside judgment; from city court of Nashville— Judge Lovett. March 10,1919.

J. W. Powell, for plaintiff in error.

Story & Story, contra.


text:
    10477.
    HAMLIN et al. v. LUPO.
    1. “The trial court has the power to require, and should require, the production of any pertinent documentary evidence which may illustrate the issue, and which is within the power or custody of any person then personally in court, except where the disclosure is prevented by privilege.” Atlantia Coast Line R. Co. v. Hill, 12 Ga. App. 392 (3), 396 (77 S. E. 316). In this case the papers did not come within the exception stated.
    2. Conflict of testimony does not render the direction of a verdict erroneous, when it appears that the conflict was immaterial, and that, giving to the opposite party the benefit of the most favorable view of the evidence as a whole and all legitimate inference therefrom, the verdict against him was demanded. See Shedd v. Standard SevAng Machine C'o., 21 Ga. App. 373 (2), 376 (94 S. E. 646).
    Decided November 6, 1919.
    Complaint; from city court of Eastman—Judge Griffin. March 8, 1919.

      O. W. Atwill, for plaintiff in error.

      Roberts &■ Smith, contra.
   Smith, J.

This is a suit upon a promissory note. The defendants filed a plea of payment. The court directed a verdict for the plaintiff. The defendants made a motion for a new trial, which was overruled, and they excepted.

The sole issue involved in the case is one of payment. The defendants claimed that they had made two payments on the note sued upon. On the other hand, the plaintiff claimed that the principal debtor owed him several hundred dollars, including notes and an account, and that the payments referred to were not made on the note sued upon, but were payments on an account. On the trial the plaintiff-testified that neither one of the defendants had ever paid him anything on the note in question, but that the payments relied upon by the defendants as a defense were made on an account, and so credited on his books. He then introduced in evidence his books showing several items of account due him by the defendant Hamlin. The defendant Hamlin testified that he owed the plaintiff only a small balance of $5 on the note, as he had paid him $50 in money and instructed him to credit it on the note, and that the plaintiff “took the money with that understanding, and said he would do so.” This witness testified further that he gave his “son John $50, and instructed him to tell Mr. Lupo [the plaintiff] to credit it on this note.” The witness also stated that he did owe the plaintiff a balance on an account, but that he did not know exactly how much. The defendant’s son testified that his father gave him $50 in money, instructing him to give it to the plaintiff and tell him to credit it on the note sued upon, and that he paid the money to the plaintiff in accordance with his father’s instructions. The plaintiff, on redirect examination, denied that he was ever instructed by the defendant Hamlin or his son to apply the payments in question to the note, and testified that he gave a receipt to each of them, which would show for itself that the payments made were credited not on the note but on an account. By an order of the trial judge the receipts were brought into court and introduced in evidence. They were as follows: “Received of J. M. Hamlin fifty-five and no/100 dollars (in Cochran) on acct. [Signed] R. N. Lupo. Nov. 16th, 1913.” “Received of J. M. Hamlin fifty and no/100 dollars on acct. (by Johnny). [Signed] R. N. Lupo. Empire, Ga., June 11th, 1913.”

This was in substance the entire evidence introduced, and it will be observed that there is absolutely no evidence whatever from Hamlin that at the time he received the receipts he made any complaint as to their wording, which showed clearly that they were given for certain payments on an account and not for payments on the note sued upon. Neither is there any evidence showing, or even tending to show, that the plaintiff practiced fraud upon or in any respect exercised any • undue influence over the defendant. Hnder these circumstances the taking of the receipts, which the defendant accepted without complaint and actually held in his possession until ordered to produce them on the trial, was such an acquiescence on his part as to what they contained or recited as to bind him. In Bird v. Benton, 127 Ga. 371 (3), 372 (56 S. E. 450), the Supreme Court approved the following charge to the jury: “If, after directing the application of payments to mule notes, the defendant consented, directly or impliedly, from his acts or words, to a different application of said payments from that requested, or acquiesced in a different application of said payments from that requested, then he would be bound by his acquiescence.” In Kennedy v. Davis, 82 Ga. 210 (8 S. E. 52), it was held that "The reception without objection by the mortgagors of accounts of sales showing the disposition made of proceeds, and allowing the mortgage to remain in the hands of the mortgagees, with all other facts and circumstances of the ease, are opposed to a verdict supporting a plea that the mortgage was paid off.”

Although it is true that a receipt is not a contract, but merely an admission in writing of the fact of payment or other settlement between debtor and creditor, and, under section 5795 of the Civil Code (1910), it is only prima facie evidence of payment, and is subject to explanation, in this case there was no sufficient explanation showing why the defendant should not be bound by the recitals in the receipts. The court therefore did not err in directing a verdict for the plaintiff.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.


text:
    10576.
    Akin v. Todd.
    Decided November 6, 1919.
    Certiorari; from Tattnall superior court—Judge Sheppard. April 9, 1919.

      Collins & Stanfield, for plaintiff in error.
   Smith, J.

1. Notwithstanding a petition for certiorari may contain an assignment of error raising a question of law, yet where the determination of the case depends entirely upon a contested issue of fact, a judgment rendered by the magistrate is not reviewable by certiorari. Therefore in this case the judge of the superior court did not err in dismissing the certiorari. See Toole v. Edmonson, 104 Ga. 776 (31 S. E. 25), and cases there cited.

2. “It can make no difference for what reason the writ of certiorari was dismissed in this ease; the court did right in dismissing the same, and affirming the judgment of the justice.” Wilson v. Burks, 71 Ga. 862; McPherson v. Stroup, 100 Ga. 228 (28 S. E. 157).

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., conew.


text:
    10587.
    Dyson v. Sellers.
    Decided November 6, 1919.
    Certiorari; from Grady superior court—Judge Harrell. March 27, 1919.

      L. W. Ripley, for plaintiff in error.

      Ira Carlisle, contra.
   Smith, J.

There is no merit in the assignment of error that the trial judge permitted a witness to testify positively that he measured certain logs and there was a certain number of feet therein. This testimony was not based on opinion from observation, but was based on facts known to the witness. The ruling is not in conflict with Allison v. Wall, 121 Ga. 822 (49 S. E. 831). The evidence amply authorized the judgment, and the court did not err in overruling the certiorari.

Judgment affirmed.

Jenhins, P. J., and Stephens, J., concur.


text:
    10702.
    CITY OF ATLANTA v. WHITLEY.
    1. The petition set out a cause of action against the city, and there was no error in overruling the demurrer.
    2 A child only two and a half years old is incapable of contributory negligence. Orawford v. Southern By. Go., 106 Ga. 870 (2), 877 (33 S. E. 826).
    3. The following charge is complained of: “If it [the defendant] failed to exercise ordinary care in the matter of keeping its streets in a reasonably safe condition, in one or more of the particulars charged in the plaintiff’s petition and amendment, that would constitute negligence.” Although this excerpt from the charge of the court standing alone is subject to the criticism made, when considered in connection with the language immediately preceding it and that immediately following it no such error was committed as to require a reversal. The language immediately preceding the excerpt is as follows: “Ordinary care means just that care that every prudent man would exercise under the same or similar circumstances. That is the measure of its duty, and with this definition it becomes a question of fact for the jury to say whether, in so far as the particulars charged by the plaintiff in her petition and amendment are concerned, the city exercised through its agents and employees ordinary care or failed to do so. If it exercised ordinary care in keeping its streets reasonably safe, that would be the measure of its duty and there would be no liability.” The language immediately following the excerpt is as follows: “Then, with this definition, you would for yourselves decide whether it was or was not negligent.”
    4. Exception is taken to the following charge: “Damages are given as compensation for the injury done, and generally this is the measure when the injury is of a character of being estimated in money, that is, gentlemen, when the law permits damages to be recovered at all in. a case like this, it seeks to give fair compensation, fair pay, for the injury done, and you will keep this rule in mind in passing on the classification of damages involved in this case.” This excerpt from the charge of the court is substantially a statement of the law as .contained in the Civil Code (1910), § 4502, and when considered in connection with the entire charge contains no reversible error.
    5. A recovery being sought for pain and suffering on account of injury to the knee of a female child, evidence that scars caused by the injury remained a considerable length of time after two operations had been performed upon the knee, which caused it to be one fourth of an inch larger in circumference than her other knee and that as a result of the injury her leg was “crooked,” and in walking she would never have “true use” of her foot, was sufficient proof to authorize a charge on the subject of deformity. There is no merit in the exception to the charge of the court on that subject.
    6. Upon a consideration of the whole record, it does not appear that a verdict for $940 was so excessive as to authorize the inference of gross mistake or undue bias on the part of the jury.
    7 While the testimony is conflicting, there is ample evidence to sustain the allegations of the petition, and the court did not err in overruling the motion for a new trial.
    Decided November 6, 1919.
    Action for damages; from city court of Atlanta—Judge Reid. May 31, 1919.

      James L. Mayson, Jesse M. Wood, for plaintiff in error.

      Walter A. Sims, contra.
   Smith, J.

In order that the rulings made in the 1st and 5th headnotes may be better understood, we deem it proper to make the following brief statement of the case and the evidence adduced on the trial:

Martha Whitley, two and a half years old, by her mother as next friend, brought suit against the City of Atlanta for damages on account of personal injuries alleged to have been received by reason of a sewer-pipe falling upon her while she was walking upon and along a sidewalk of one of the streets of the defendant city. The petition alleged that on the day previous to the injury, the defendant, when engaged in laying a sewer in a named street, by its agents and employees, placed a lot of sewer-pipes in the street and next to the sidewalk in an insecure, negligent, careless, and leaning position; that the street sloped towards the sidewalk; that the pipes were placed in soft earth where they would gradually sink, and the tops of the pipes were leaning towards the sidewalk. It was further alleged that on account of the sewer-pipe falling upon the plaintiff, the bone in her right hip and leg were bent, pressed and broken about the knee; that the bone in her knee joint of her right leg was broken and her right knee joint wrenched, strained, and dislocated, and that the two bones between the ankle and the knee were bent and the muscles and ligaments which held the bones together were broken; that she will always be a cripple by reason of said injuries, and that she has suffered great physical pain and mental anguish ever since she received the injuries for which damages are sought; that it was necessary for her to be operated upon, and that the doctor who performed the operation made two incisions through the skin and flesh in her right leg and hip, which will cause her to be permanently scarred.

The court properly overruled the demurrers interposed to the petition, as a cause of action was set out. It is admitted that the defendant had a right to place the sewer-pipes in the streets, but it is contended that the cause of plaintiff’s injuries was the manner in which the pipes were placed on the ground and in the street. In Jones v. Atlanta, 142 Ga. 151 (82 S. E. 540), it was held that where a city placed a part of a fence in an alley and left it in such a leaning position as to cause the same to fall over and injure a pedestrian, the city was liable.

The following evidence, briefly stated, was adduced on the trial of the case, which in our opinion was amply sufficient to authorize the charge complained of on the subject of deformity: Dr. W. E. Jankey testified that he attended the plaintiff in the year 1917, and found that she had an infection of the right knee and a dislocation of the knee joint; that he operated on her, and that an injury of .this kind was very painful; that she has a permanent injury, and that in walking she will not have “true use” of the foot. There was also evidence to the effect that there was a differenence of a quarter of an inch in the size of the two knees, and that there was a scar on the outside surface at the knee joint where an incision had been made and a drainage placed. The child’s mother testified that it had not grown much since the injury, and that it was very delicate. “In walking on the floor she stumbles and falls like she absolutely gives out. She does not grow very much, seems to be stunted to some extent on account of it [the injury]. The girl walks differently, in that her leg is crooked and she walks with her foot in. Her toes turn in, her leg is crooked. She did not walk that way before she got hurt.”

There was no such fatal variance between the allegation as to the place where the injury happened and the proof as to the place where it did happen as to bring into consideration different principles of law applicable to the question of liability. In other words, the proof sustained all of the material allegations of the petition. The petition alleged that the plaintiff was walking upon and along the sidewalk by the side of the sewer-pipes, when all of a sudden, and without warning, one of them fell over and struck her upon the right hip. The plaintiff’s mother testified that the pipes were placed in a gutter running parallel to the sidewalk, and were “leaning towards the sidewalk, right at the sidewalk;” that “when the child was hurt, I went down there to get her, and after the excitement was over I saw the sewers. . . When the sewer-pipe was pulled off of the little girl she was lying right on the sidewalk where the people walk.”

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10715.
    Groover v. Terrell.
    Decided November 6, 1919.
    Action for damages; from city court of Hinesville'—Judge W. C. Hodges. June 5, 1919.

      Ben. A. Way, for plaintiff in error.

      O. G. Dorsey, contra.
   Smith, J.

In this case the motion for a new trial contained only the usual general grounds. There was evidence to authorize the verdict; and the verdict having been approved by the trial judge, we are, under the repeated rulings of the Supreme Court and of this court, powerless to interfere.

Judgment affirmed.

Jenkins, P. J., amd Stephens, J., concur.


author: Broyles, O. J.

text:
    10460.
    Autrey v. The State.
   Broyles, O. J.

1. In the absence of a certificate by the trial judge to the contrary, the statement in the charge as to the contentions of the parties will be presumed correct. Wilson v. A. & C. Ry. Co., 82 Ga. 386 (2), 390 (9 S. E. 1076); Robinson v. State, 109 Ga. 506 (5) (34 S. E. 1017); Wrightsville & Tennille R. Co. v. Gornto, 129 Ga. 204 (2), 206 (58 S. E. 769).

Decided November 7, 1919.

2. The contentions of the defense in a criminal case are not confined exclusively to the contentions of the defendant as made in his statement to the jury, but include such contentions as may be made and argued by defendant’s counsel before the court and jury.

2. Under the preceding rulings and the facts of this case, there is no merit in the special grounds of the motion for a new trial which are based in substance upon the alleged error of the court in misstating the contentions of the defense. The note of the trial judge shows that the contentions of the defense as argued by the defendant’s counsel before the court and jury were substantially and in spirit those given in the charge, and that the same counsel orally requested the court to charge the jury upon the principles of law involved in such contentions'. Counsel, not having put the request in writing, can not complain of the particular language employed by the judge in complying with his request. The charges complained of in these grounds of the motion are not erroneous for any other reason assigned.

4. “To constitute the offense of assault with intent to murder, there must be a specific intent to kill. This intent is not necessarily or conclusively shown by the use of a weapon likely to produce death, in a manner likely to produce death. Under the proof in this case, the jury should have been given the discretion to convict of the lower offense included in the higher felony charged, if they believed the evidence did not show a specific intent to kill.” This ruling is quoted from the decision in Ripley v. State, 7 Ga. App. 679 (3) (67 S. E. 834),-where it was held that “the failure of the court to charge as to the statutory offense of shooting at another was error.” Under this ruling and the facts of the instant ease the court properly instructed the jury upon the offense of shooting at another.

5. Conceding that neither the evidence nor the defendant’s statement, nor both combined, authorized a charge upon the law of manslaughter, the error of the court in instructing the jury upon the law of manslaughter does not require a new trial, since the evidence for the State demanded a finding either of assault with intent to murder, or of shooting at another; and the defendant’s statement and the evidence introduced by him tended merely to establish that the defendant was not present at the time and place of the shooting, and did not otherwise contradict the testimony for the State. The jury, in their finding, having evidently rejected the defense of alibi (and the evidence authorized them so to do), and having given the defendant the benefit of all the leniency legally possible under the undisputed testimony for the State (undisputed in all respects except as to the alibi), he will not be heard to demand a new trial for alleged inaccuracies in the charge of the court upon the subject of manslaughter. See, in this connection, Fallon v. State, 5 Ga. App. 659, 663 (63 S. E. 806).

6. The 5th and 12th special grounds of the motion for a new trial are expressly abandoned in the brief of counsel for the plaintiff in error, and no substantial merit appears in any of the other special grounds of the motion not already dealt with.

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

Judgment affirmed.

Lulce and Bloodioorth, JJ., ooneur.

Indictment lor assault with intent to murder; from Forsyth superior court—Judge Morris. February 14, 1919.

The verdict was, “We, the jury, find the defendant guilty of shooting a man, and recommend that he be punished as for a misdemeanor.”

R. B. Russell, J. P. Brooke, for plaintiff in error.

John T. Dorsey, solicilor-general, contra.


author: Luke, J.

text:
    10484.
    Arnold v. Booth, executrix.
    Decided November 7, 1919.
    Trover; from Barrow superior court—Judge Cobb. February 28, 1919.
   Luke, J.

1. The seller of porsonal property on a credit may take a note for the purchase-price and retain, as security for the debt, .a legal title to the property so sold, and in the same instrument, to better secure the debt, title to other personal property may be passed by the purchaser, and, where the note is not paid when due, the seller may recover the property in trover. When the vendor elects to take a money verdict the purchaser of course is entitled to credit for such sums of money as may have been paid upon the note. See Scott v. Glover, 7 Ga. App. 182 (66 S. E. 380).

2. The instrument whereby title to property sold was retained, and title to other property as additional security was conveyed in this case, was not a mortgage, but was, as properly construed by the court, a conveyance carrying title for the security of a debt. See Ellison v. Wilson, 7 Ga. App. 214 (66 S. E. 631).

3. The court did not err in admitting evidence, as between the parties, for the purpose of identifying the animal described in the bill of sale. See Emerson v. Knight, 130 Ga. 100 (60 S. E. 255); Thomas Furniture Co. v. T. & C. Furniture Co., 120 Ga. 879 (48 S. E. 333); Reynolds v. Jones, 7 Ga. App. 123 (66 S. E. 395). Such testimony did not vary the terms or render conditional the unconditional promise to pay.

4. The court did not err in excluding from the consideration of the jury testimony of the defendant Arnold with reference to the transaction had with Booth in the present case, which was proceeding in the name of the representative of the estate of Booth. Sec Dowdy v. Watson, 115 Ga. 47 (41 S. E. 266).

5. The newly discovered evidence, which was cumulative and impeaching in its character-, and in addition thereto was contradicted by the counter-showing made by the plaintiff, does not require a new trial.

6. The charge of the court was full and fair and the verdict was authorized by the evidence. Eor no reason assigned did the court err in overruling the motion for a new trial.

•Judgment affirmed.

Broyles, G. J., concurs. Bloodworth, J., concurs dubitante.

Eosa L. Booth, as executrix of John N. Booth, brought trover against Gt. N. Arnold for property described in her petition as “a certain dark iron-gray horse mule, about 5 years old, weighing about 900 pounds, of the value of $250,” and “one bay horse about 10 years old, weighing about 1000 pounds, named ‘Tom Bell,’ of the value of $150.” On the trial the plaintiff elected to take a money verdict, and such a verdict was rendered. The defendant made a motion for a new trial, which was overruled, and he excepted.

On the trial it appeared that John N. Booth sold to the defendant two mules, and that the defendant executed at the time of the sale an instrument in the form of a purchase-money note to the vendor, with a recital as follows: “This note being to said John N. Booth as contract for one gray mare mule about 11 years old, weight 1000 pounds, one dark iron-gray mare mule 4 years old, weight about 900 pounds.” This recital was followed by these words: “It is hereby agreed that the title to said mules shall remain in said John N. Booth until this note is fully paid. . . To better secure the payment of this debt I sell to said John N. Booth one bay horse 9 years old, weighing about 1000 pounds, name Tom Bell, and upon failure to pay this debt when due, said John N. Booth is hereby authorized to take possession of said property and sell same.” The instrument was duly attested and recorded. One of the grounds of the motion for a new trial ‘was that the court erred in charging the jury as follows: “The legal effect of this paper, so far as the two mules are concerned, was to retain the title to the mules in John N. Booth until the debt was paid. . . The legal effect of that portion of the paper which refers to the horse called ‘Tom Bell’ was to vest the title in John N. Booth to secure the payment of the debt. Therefore I charge you as a matter of law that the plaintiff has the right to pursue the remedy which she is pursuing in bringing this action to recover the value of these pieces of property.” It was contended that this was error because of variance between the description of the mule in the plaintiff’s petition and the description in the instrument referred to, and because as to the horse ‘Tom Bell’ the effect of the paper was to create a mortgage and not to convey title.

Another ground of the motion for a new trial was that John L. Booth was allowed to testify as follows“This paper you hand me is a retainer-title note given by Mr. Arnold to my father for one gray mare mule about 11 years old, and one dark iron-gray horse mule 4 years old, given for one dark iron-gray mare mule in the note. The mule was described in the note as one dark iron-gray mare mule, but it was a horse mule. The horse mule sued for is the mule mentioned there (in the note) as a mare mule, and that is the mule upon which I gave the value just now.” This testimony was admitted over the objection that it contradicted the description in the note.

Error was assigned on the exclusion of the following testimony of the defendant: “I got the dark iron-gray horse mule sued for from J. N. Booth just before Christmas, 1915, by a swap. I did not give any note for that mule.” This was excluded as relating to “a transaction with a deceased person.”

The court charged the jury as follows: “As this is a case between the original parties to the contract,—that is, between the executrix of one party and the living party,—a misdescription in the paper, as to the identification of the property in question, would not defeat the right of the plaintiff to recover as to that animal. That is to say, if you are satisfied, from an examination of the paper, that the paper describes an animal but there is a misdescription as to the sex of the animal, and you are further satisfied that it was the intention of the parties to give a retainer of title to an animal of which the defendant was in possession, and that that is the animal which is described in the petition, then the plaintiff would be entitled to rely upon the retainer of title, although it might appear to you that the sex of the animal was wrongly described in the note.” Error was assigned on this extract from the charge, on the ground that it allowed a variance of the written contract by parol testimony.

G. A. Johns, for plaintiff in error. Wolver S. Smith, contra.


author: Broyles, C. J. Luke, J.,

text:
    10622.
    FULLER v. COKER.
   Broyles, C. J.

1. “The right of one sued at law in an action ex contractu to set off damages arising out of a tort committed by the plaintiff, on the ground that the latter is insolvent or is a non-resident, is a right in this State recognized only by a court of equity.” Hecht v. Snook & Austin Co., 114 Ga. 921 (1), 928 (41 S. E. 74); Geer v. Cowart, 5 Ga. App. 251 (62 S. E. 1054). See also Smith v. Green, 128 Ga. 90 (4) (57 S. E. 98). Under the above ruling the city court of Americus had no jurisdiction to entertain that part of the defendant’s plea which set up as a defense damages arising ex delicto.

Decided November 7, 1919.

Complaint; from city court of Americus—Judge Harper. April 30, 1919.

On May 4, 1918, E. B. Coker brought an action in the city court of Americus against Mrs. Docia Fuller on an account for $137, money loaned, and interest thereon. The defendant in her answer as amended denied indebtedness, and in substance alleged: She did borrow of the plaintiff $137 at or about the time alleged in his petition (October 18,1917), but at that time and simultaneously she leased to him for five years, commencing January 1, 1918, a farm in Sumter county, Georgia, for which he executed and delivered to her five rent notes payable in cotton (7 bales each) on the first day of October of each year respectively, and in the contract further agreed “to allow [her] . . , to live with him as one of the family for the period of his said lease and not charge her any board.” Copies of the lease and the notes (dated September 17, 1917) were attached to the answer. It is alleged, that “in part compliance with said contract and agreement said plaintiff did loan and deliver to this defendant on or about the 18th day of October, 1917, $137 of the $3,000 that he agreed and contracted to loan defendant.” In pursuance of the lease contract the plaintiff moved on the premises and commenced his farming operations thereon in the first part of the year 1918. Under the terms of the loan as agreed upon when the lease contract was made, the defendant was to have five years in which to pay back the said $3,000, and was to repay it with the proceeds of the rent cotton. He failed to carry out his contract by lending to the defendant the remainder of the $3,000, and on or about February 6, 1918, he abandoned his farming operations and without just cause moved away from the leased premises, declaring his intention not to pay the 'rent as contracted for; “by reason of which facts,” it is alleged, “the said $137 is not due and owing said plaintiff.” It is further alleged, that the plaintiff is insolvent and a nonresident; that while occupying the leased premises Ée destroyed certain buildings and fences thereon, to the defendant’s injury and damage in the sum of $366.40 (itemized); that the rent for the year 1918 amounted to $1,130, the market value of the rent cotton specified in the contract; that in order to reduce her loss as much as possible the defendant rented a part of the premises for the remainder of the year 1918 to certain persons for $170, leaving a balance due her by the plaintiff for rent of that year of $950; that he is indebted to her the further sum of $165 for board for 11 months, provided for in .the contract, making a total of $1,115 due her under the rent contract, for the year 1918, besides the $366.40 due for damage to the property.

2. “Between the parties themselves any mutual demands, arising at the time of the commencement of the suit, may be set off.” Civil Code (1910), § 4340.

(а) “A plea of set-off is not good unless it alleges facts showing that the demand against the plaintiff which the defendant therein seeks to set up was in existence and due to the latter by the former at the time his action was begun.” Walters v. Eaves, 105 Ga. 584 (3), 587 (32 S. E. 609).

(б) “If a plaintiff resides without this State, or is insolvent, the defendant may set off against him a debt not due, under such equitable terms as may be prescribed by the court.” Civil Code (1910), § 4349. In such a case, however, equitable relief is clearly involved, and where the defendant therein pleads the non-residence or the insolvency of the plaintiff, and further asks a judgment in excess of the plaintiff’s demand, affirmative equitable relief is involved, and a city court has no jurisdiction to entertain the plea.

3. In the instant case the defendant’s claim for rent, which largely formed the basis of the damages arising ex contractu, pleaded as a set-off, was not due at the time of the commencement of the suit, and under the above ruling the city court of Americus was without jurisdiction to entertain this part of the plea. This ruling is not in conflict with the decision in Bibb Land-Lumber Co. v. Lima Machine Works, 104 Ga. 116 (30 S. E. 676, 31 S. E. 401), since in that case, as was pointed out in the case of Hecht v. Snook & Austin Co., supra, the question of the jurisdiction of the city court of Macon to entertain the plea was not raiseS.

4. The point argued in the brief of counsel for the plaintiff in error, that the oral demurrer of the plaintiff was made too late, was not raised in the trial court, and therefore will not be considered.

5. The court did not err in sustaining the oral demurrer to the defendant’s plea as amended, or in thereafter overruling the motion for a new trial.

Judgment affirmed.

Bloodworth, J., concurs. Luke, J., dissents.

The following prayer was in the answer as finally amended: “And defendant prays that said sum of $366.40 be set off against said sum of $137.00 with interest, sued for by plaintiff, and the same be found and adjudged to be in full payment by set-off and satisfaction of said sum sued for by plaintiff; this defendant not asking for a judgment in her favor against said plaintiff for the excess of said $266.40 over and above the claim of plaintiff, but only prays that same be found and adjudged to be in full settlement and satisfaction thereof; no relief in behalf of this defendant in respect to said damage of $266.40 being asked or prayed for.” The defendant further prayed for judgment against the plaintiff for the sums alleged to be due for rent and board for the year 1918.

At the trial term the plaintiff demurred orally to the plea as amended, “upon the grounds that the set-off and counter-claims set forth . . could not be set up in the city court of Amerieus, could not be set up against plaintiff’s demand, and were insufficiently alleged.” The court sustained the demurrer and struck the answer, except the general denial of indebtedness. The ease proceeded to trial, the plaintiff testified in proof of his claim, and a verdict was rendered in his favor; the defendant’s motion for a new trial was overruled, and she excepted. Counsel for plaintiff in error cited: 8 Ga. App. 572 (2); Id. 541-2; 123 Ga. 784 (1); 124 Ga. 543-4; 125 Ga. 644-5; 128 Ga. 333; Civil Code (1910), § 5632; 5 Ga. App. 876; 96 Ga. 469; 105 Ga. 406; 147 Ga. 99 (1); 20 Ga. App. 37 (5); 21 Ga. 108; 82 Ga. 281; 104 Ga. 116; 89 Ga. 76; 102 Ga. 702; 110 Ga. 392 (2); 111 Ga. 668 (3); 114 Ga. 921; 125 Ga. 319, 325; 145 Ga. 147.

Hixon é Pace, for plaintiff in error. Shipp & Sheppard, contra.

Luke, J.,

dissenting. I do not agree with the conclusion and judgment reached by a majority of the court in this case. A city court has jurisdiction to entertain an equitable plea which is purely defensive in its nature and which would reduce the 'amount of plaintiff’s recovery or would result in a verdict finding generally for the defendant, unless in order to obtain the result of such plea it would be necessary for the court to exercise the extraordinary powers of affirmative relief, such as reformation or cancellation, etc. See Butler v. Holmes, 128 Ga. 333, 336 (57 S. E. 715), and cases cited; Hanesley v. National Park Bank, 147 Ga. 96 (92 S. E. 879); Park v. Carmichael, 20 Ga. App. 36 (92 S. E. 397), and cases cited. The equitable plea of the defendant in this case, wherein there is pleaded a right arising ex delicto against the plaintiff’s demand arising ex contractu, conforms to the exception pointed out in the opinion of Swift v. Oglesby, 8 Ga. App. 540, 541, 542 (70 S. E. 97), and eases cited.

I think the plea of the defendant was good as against the oral demurrer of the plaintiff.


author: Bloodworth, J.

text:
    10667.
    STARLING et al. v. THE STATE.
    1. A ground of a motion for a new trial which complains of the admission of specified testimony of a witness whose name is not given therein will not he considered by this court.
    2. The constitutionality of section 125 of the Penal Code (1910), as to enticing laborers to leave their employers, on which the prosecution in this case was based, could not be drawn in question by first raising it in a motion for a new trial, as was attempted.
    3. Failure to argue in the brief of counsel for the plaintiff in error a question raised in a ground of the motion for a new trial will be treated by this court as an abandonment of that ground.
    4. The evidence was sufficient to show that the defendant Odom knew that the laborers whom it was alleged he induced to leave their employer were under a contract of employment; and the evidence was also sufficient to authorize the jury to conclude that he was representing the defendant Starling in the transaction.
    Decided November 7, 1919.
    Kccusation of misdemeanor; from city court of Cairo—Judge Rigsby. February 26, 1919.

      W. V. Cwster, for plaintiff in error.

      Ira Carlisle, solicitor. 8. P. Gain, contra.
   Bloodworth, J.

Even if the assignment of error in the 4th ground of the motion for a new trial was properly made, we do not think the court committed error in admitting the evidence of which complaint is made. However, under previous rulings of this court, we are not called upon to consider this ground of the motion, the opening sentence of which is as follows: "Because the court over the objection of defendant’s counsel allowed the following testimony, to wit:” then follows the testimony of some witness not named. In Adams v. State, 22 Ga. App. 252 (95 S. E. 877), it is held that “A ground of a motion for a new trial which complains of the admission of specified testimony must state the name of the witness whose testimony is complained of. Hayes v. State, 18 Ga. App. 68 (88 S. E. 752); Peeples v. Butler, 21 Ga. App. 310 (94 S. E. 278.” See also Hunter v. State, 148 Ga. 566, 91 S. E. 523). Further ou in this ground of the motion it is alleged that “defendant’s counsel moved the court to exclude the testimony of the several witnesses as to what Gus Odom told Jack Cox, John Robinson, and Charlie McLain.” The names of the “several witnesses” are not given. Even' if from the language used we could reach the conclusion that the witnesses referred to were Cox, Robinson, and McLain, it would be necessary to search through the entire brief of evidence to see what each swore before we could determine whether the evidence was improperly admitted; and this we are not required to do. Both this court and the Supreme Court have held that “Grounds of a motion for new trial which are incomplete, and can not be understood without resorting to an examination of the brief of evidence, fail to present any question for decision. Head v. State, 144 Ga. 383 (87 S. E. 273); Sims v. Sims, 131 Ga. 262 (62 S. E. 192).” Smiley v. Smiley, 144 Ga. 546 (2) (87 S. E. 668); Braxley v. State, 17 Ga. App. 197 (4) (86 S. E. 425).

By the 5th ground of the motion for a new trial it was sought to raise a constitutional question, and this case was sent to the Supreme Court. That court held: “Under the ruling made in Henry v. State, 147 Ga. 260 (8), 264 (93 S. E. 413), ‘a.question as to the constitutionality of a law' cannot be raised for the first time in a motion for new trial, where it was not made either by demurrer to the pleadings, or by objections to evidence, or in some other appropriate way pending the trial.’ The plaintiff in error in the instant case was accused and convicted of a misdemeanor. In his motion for new trial an attack is made for the first time upon the constitutionality of the statute for the violation of which he was convicted. Under the ruling quoted above, concurred in by a majority of the court, no constitutional question is properly made in the case. The case is not one of which the Supreme Court has jurisdiction; and direction is given that it be transferred to the Court of Appeals, which has jurisdiction to hear and determine the case.” Starling v. State, 149 Ga. 172 (99 S. E. 619).

Grounds 6 and 7 of the motion for a new trial, not having been argued in the brief of counsel for the plaintiff in error, will be treated as abandoned.

In the brief of counsel for plaintiff in error the only reason assigned why the verdict should be set aside under the general grounds of the motion for a new trial is that "it nowhere appears in the evidence that either of the defendants knew that any of the persons taken from Boyd’s employee [employment P] was under a contract of employment.” That the defendant Odom knew of the contract of employment there can be no doubt, and we think the facts were sufficient to authorize the jury to conclude that Odom was representing Starling in the transaction; and therefore we think that the judgment as to both of them should be

Affirmed.

Broyles, O. J., and Luke, J., concur.


author: Bloodworth, J. Broyles, 0. J.,

text:
    10711.
    EASTERLING v. THE STATE.
    “There being no proof of a plenary confession by the accused, but, at most, evidence only of incriminatory admissions, it was such an error to charge the law relating to confessions as to require a grant of a new trial.”
    Decided November 7, 1919.
    Indictment for robbery; from Chatham superior court—Judge Meldrim. June 9,1919.

      Shelby Myrick, for plaintiff in error.

      Walter Q. Hartridge, solicitor-general, contra.
   Bloodworth, J.

Caroline Coleman and Eva Easterling were on trial charged with robbery. The State sought to prove that there was a conspiracy between the two women and two men to rob a man named Christopher; that the women had persuaded the victim to carry them in his automobile to a certain point some distance out on one of the suburban roads, and one of them gave a signal to the men, who came up and committed the robbery. On the trial a witness swore that after the women were arrested, Mrs. Coleman, in the presence of Eva Easterling, freely and voluntarily said, “They (Coleman and Easterling) were out there with this Greek Christopher, and the Greek wanted her to do something, but which she didn’t want to do, and she screamed so that the boys could come up and assist her.” The learned judge construed this statement'to be a confession of guilt, and charged the jury on confessions. In doing this we think he erred. It is possible to place two constructions upon the statement of Mrs. Coleman; the one is that she screamed to bring the boys- to protect her against the advances of Christopher, and the other, as the State insists, is that she screamed as a signal to the young men to rush up and rob the Greek. Accepting the latter theory, the statement does not amount to a confession, but is only at best an incriminatory admission. In Riley v. State, 1 Ga. App. 651, 654 (57 S. E. 1031), this court said: “A confession is a voluntary admission of guilt of a criminal offense. An .admission, as applied to criminal eases, is the avowal or- acknowledgement of a fact or of circumstances from which guilt may be inferred, and only tending to prove the offense charged, but not amounting to a confession of guilt. There is a broad distinction between mere admissions of inculpatory facts and confessions of guilt. ‘When a person only admits certain facts from which the jury may or may not infer guilt, there is no confession.’ ” See also Lee v. State, 102 Ga. 221, 222, 225, 226 (29 S. E. 264). “ ‘A confession, in criminal law, is a voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act and the share and participation he had in it.’ Black’s Law Diet. This definition of a confession was adopted and approved by the Court of Appeals of Kentucky in Spicer v. Commonwealth, 51 S. W. 802. ‘A confession is a person’s, admission or declaration of his agency or participation in a crime, and is restricted to admissions of guilt.’ 3 Am. & Eng. Ene. Law, 439. These definitions of a confession imply an admission of every essential element necessary to establish the crime wherewith the defendant is charged. Unless the statement of the defendant is broad enough to comprehend every essential element necessary to make out the ease against him, it cannot be said to be an admission of guilt. There is a difference between an incriminating statement and a confession of guilt. In the former only one or more facts entering into the criminal act is admitted, while in the latter the entire criminal act is confessed. There are a number of cases in our own reports which clearly draw this distinction. Thus it is said by Chief Justice Bleckley in Fletcher’s case: ‘There is a very wide distinction between admitting the main fact and admitting some minor or subordinate fact or series of facts which could be true whether the main fact existed or not.’ Fletcher v. State, 90 Ga. 468 [17 S. E. 100], To the same effect is Dumas v. State, 63 Ga. 600, and Covington v. State, 79 Ga. 687 [7 S. E. 153]. ‘-A confession is rather a fact to be proved by evidence than evidence to prove a fact. It is not so much proof that a particular thing took place as it is a -waiver by the party charged of his right to have certain facts alleged against him technically proven/ Wharton on Crim. Ev. (9th ed.) § 623. This conclusion of Mr. Wharton is in line with the decisions of our own court. The distinction in all of our cases is clearly drawn between the effect of admissions of fact from which the guilt of the accused may be inferred and the admission of guilt itself. Incriminating statements, to be the equivalent of a confession of guilt, must be so comprehensive as to include every act necessary to be proved by the prosecution in order to establish the defendant’s guilt.” Owens v. State, 120 Ga. 298 (48 S. E. 21). Applying these rulings to the statement of Mrs. Coleman, it will clearly appear that she made no confession of her guilt, and under no conditions could this be accepted as a confession on the part of Eva Easterling. The court therefore erred in charging the jury upon the subject of confessions. Owens v. State, supra; Porter v. State, 11 Ga. App. 246 (74 S. E. 1099).

As a new trial is to be had, it will avail nothing to pass upon the other grounds of the motion.

Judgment reversed.

Lulce, J., concurs. Broyles, O. J., dissents.

Broyles, 0. J.,

dissenting. While the trial judge erred in charging upon the law of confessions, he also in immediate connection therewith, clearly and explicitly instructed the jury as follows: “See if there has been any confession in this case, and if there has not been, you will not consider the charge I have given you in regard to confessions.” Furthermore, in my opinion, the evidence fairly demanded the defendant’s conviction, and therefore the error in the charge of the court does not require a new trial.


author: Bloodwoeth, J.

text:
    10743.
    Crews v. The State.
   Bloodwoeth, J.

The special grounds of the motion for new trial show no such material error as requires the grant of a new trial in this ease. The verdict shows that the jury did not accept the theory of the defense that the accused, under the fears of a reasonable man that a felony was about to be committed on him, shot the deceased, and that they did not believe the statement of the accused. Under the evidence the killing was absolutely without justification, and the lowest grade of homicide of which‘Tt would be possible to find the defendant legally guilty under the evidence is that of voluntary manslaughter, and the jury having returned such a verdict, and the trial judge having approved it, this court will allow it to stand. Vernon v. State, 146 Ga. 709 (2), 712 (92 S. E. 76), and cases cited.

Decided November 7, 1919.

Indictment for murder; from Charlton superior court—Judge Summerall. June 21, 1919.

John W. Bennett, James B. Thomas, for plaintiff in error.

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

Judgment affirmed.

Broyles, O. J., and Luhe, J., concur.


text:
    10845.
    Muse v. The State.
    Decided November 7, 1919.
    Rehearing denied December 9, 1919.
    Accusation of possession of intoxicating liquor; from city court of Valdosta—Judge Cranford. August 8. 1919.
    The only testimony at the trial was that of the sheriff, H. M. Passmore. He testified that he searched the house of Chicken Muse, the defendant, and found there a locked trunk, which he asked the defendant to open; that the defendant “took his keys out” and unlocked the trunk, and nearly six pints of whisky and about two thirds of a bottle of “shine” were found in it; that the only statement that the defendant made about the liquor 'was that “a fellow left it there;” he was asked but did not tell who left it there. The only ground of the motion for a new trial other than the general grounds was that the court illegally admitted, over objection of counsel for the defendant, “the following material evidence, to wit:” setting out the testimony that the whisky was found in the trunk; to which testimony the defendant objected on the ground that he was ordered by the sheriff to open the trunk, and was thereby compelled to give evidence tending to criminate himself.
   Bloodworth, J.

1. “Under repeated rulings of this court and of the Supreme Court, a ground of a motion for a new trial complaining of the admission of testimony must be complete within itself, and not such as to require the reviewing court to refer to the brief of evidence or other parts of the record in order to determine the question of the admissibility of the testimony. A ground of a motion for a new trial which complains of the admission of certain specified testimony upon the trial of the case must state the name of the witness whose- testimony is complained of.” Peeples v. Butler, 21 Ga. App. 310 (94 S. E. 278). Under the above ruling the special ground of the motion for new trial cannot be considered by this court, because to do so it would be necessary to refer to the brief of evidence and ascertain (a) the name of the witness whose evidence is objected to and that he is the only witness in the case; (5) when, where, and in whose possession was found the whisky referred to; (c) what sheriff was referred to, and what actually occurred when the defendant, as alleged, was “made to produce the key from his pocket and open the trunk himself”; (d) whose trunk was referred to, and what connection, if any, it had with the whisky.

2. The verdict was authorized by the evidence, ,and is approved by the trial judge.

Judgment affirmed.

Broyles, O. J., and Luhe, J., concur.

In the motion for a rehearing it was contended that the ruling quoted in the decision should'not be applied where the only evidence in the brief of the evidence is the testimony of one witness and it is very brief.

James M. J oJmson, for plaintiff in error.

J. B. Copeland, solicitor, contra.


author: Bloodworth, J. Broyles, C. J.,

text:
    10886.
    SLAUGHTER v. THE STATE.
    The offense charged in the indictment being simple larceny, and the guilt of the accused being wholly dependent upon inference arising from possession of the article alleged to have been stolen, and this possession being shown by uncontradicted and unimpeached testimony to be consistent with his innocence of the offense charged, though he may have been guilty of the offense of receiving stolen goods, the conviction of the accused was unauthorized.
    Decided November 7, 1919.
    Indictment for larceny; from Terrell superior court—Judge Worrill. August 18, 1919.

      W. II. Curr, for plaintiff in error.

      B. T. Castellow, solicitor-general, B. B. Arnold, contra.
   Bloodworth, J.

We find no merit in any of the grounds of the amendment to the motion for new trial.

In Hampton v. State, 6 Ga. App. 778 (65 S. E. 816), it was held: “The defendant’s guilt of the crime of burglary being wholly dependent upon the inference arising from the possession of stolen goods after the burglary, and this possession being shown by uncontradicted and unimpeaehed testimony to be consistent with defendant’s innocence of burglary, though he may have been guilty of receiving stolen goods, the verdict was contrary to the evidence, and a new trial should have been granted.” This ruling was followed in Gibbs v. State, 8 Ga. App. 107 (68 S. E. 742), where Judge Russell said: “Upon the evidence submitted the conviction of the defendant was not authorized. The corpus delicti was proved, it is true, but the only circumstance connecting the defendant with the perpetration of the offense was the possession of part of the stolen property, and this possession was so explained by uncontradicted testimony as necessarily to rebut the inference arising from possession of the stolen property. The decision must be controlled by the ruling in Hampton v. State, 6 Ga. App. 778 (65 S. E. 816), and similar cases. If the witness who corroborated the defendant’s statement had been impeached or discredited in any way, we should not feel authorized to disturb the verdict. If there were any circumstances which would supply a reason why the jury did not believe this witness, we would not interfere. If there had been any testimony that the witness was unworthy of belief, on account of general bad character or of a conflict between portions of the witness’s own testimony,—if the witness had made contradictory statements either previously or upon the trial, or if there had been any evidence directly or circumstantially in conflict with her testimony, the verdict would be authorized; but a jury can not arbitrarily disregard testimony which is wholly unimpeached and not contradicted, unless it is in relation to a matter which is unreasonable or impossible. If, upon another trial, the witness is shown by testimony to be unworthy of credit, for any legal reason or by any method provided by law, the testimony delivered upon this trial might be discredited and the jury authorized to disregard it; but in the absence of some testimony to this effect upon the trial now under review, it appears to us that the jury merely arbitrarily disregarded uncontradicted and unimpeached evidence; and it is beyond their power to do this in any case.” See also Williams v. State, 125 Ga. 268 (54 S. E. 166); Brooks v. State, 21 Ga. App. 661 (94 S. E. 810). Applying these ridings to the facts in this case, the judge erred in overruling the motion for new trial.

Judgment reversed.

Lulce, J., concurs. Broyles, O. J., dissents.

Broyles, C. J.,

dissenting. I think that the jury were authorized to find that the defendant’s explanation of his recent possession of the stolen property was not satisfactory to them. The witness introduced by the defendant to corroborate his statement does not corroborate all of the defendant’s explanation as given in the statement, but on the contrary contradicts it in material parts. In my opinion the judgment should be affirmed.


text:
    10341.
    Pullman Company v. Sutherlin.
    Decided November 19, 1919.
    (Certiorari granted by tbe Supreme Court.)
    Petition for removal of cause; from city of Atlanta—Judge Eeid. January 21, 1919.

      Brewster, HoioeTl & Heyman, Marie Bolding, for plaintiff in error.

      W. M. Mundy, Sidney Holderness, Westmoreland, Anderson & Smith, contra.
   Smith, J.

The petition in this ease alleges the residence of the plaintiff to be in Alabama and that of the defendant to be in Illinois. In the petition for removal this is not denied, nor is there any other reason given upon which the petition for removal is based. “A suit which, by reason of the non-residence of both parties, could not have been brought in the Federal court in the first instance, cannot be removed to that court from a State court, under the acts of March 3, 1887 (24 Stat, 522, c. 373), and August 13, 1888 (25 Stat. 433, c. 866, U. S. Comp. Stat. 1901, p. 508), on the ground of diverse citizenship, at least' where the plaintiff resists such removal, even if the consent of both parties could confer jurisdiction.” Ex parte Wisner, 203 U. S. 449 (27 Sup. Ct. 150, 51 L. ed. 264). While it is true that in some of the later cases there is a tendency to modify the ruling made in the Wisner case, supra, this court is bound by that ruling until the United States Supreme Court expressly overrules it.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10356.
    Hatcher Company v. Foster, solicitor.
   Smith, J.

In a statutory proceeding to condemn a vehicle illegally employed in the transportation of intoxicating liquors, where the owner of the vehicle had conditionally sold it, but, under the terms of a series of notes given in payment for the vehicle, title was in each note reserved in the vendor until full payment of the purchase-money should be made, the mere fact that none of the notes except the last one of the series had been attested as required by law or recorded would not defeat the seller’s claim of title under his reservation. See Shrouder v. Sweat, 148 Ga. 378 (96 S. E. 881); Whites v. State, 23 Ga. App. 174 (98 S. E. 171); Armington v. State, ante, 75 (100 S. E. 15). Therefore the court (who was acting both as judge and jury) erred in holding that because of this omission none of the notes except the last one of the series constituted a lien on the vehicle.

Decided November 19, 1919.

Condemnation; from city court of Madison—Judge Anderson. January 22, 1919.

Williford & Lambert, for plaintiff in error.

A. G. Foster, solicitor, contra.

2. There was no evidence produced on the trial tending to show that the vendor participated in the criminal enterprise or had any notice that the vehicle was to be used in the transportation of intoxicating liquor.

Judgment reversed.

Jenlcins, P. J., and Stephens, J., concur.


author: Smih, J.

text:
    10376.
    JOHNSON, administrator, v. ÆTNA LIFE INSURANCE COMPANY.
    1. Where a verdict is directed for the defendant and exception thereto is brought to this court by the plaintiff, the direction of the verdict will be affirmed where it appears from all the evidence, both for the plaintiff and the defendant, with all reasonable deductions therefrom, that the verdict was demanded. The fact that the trial judge, at the conclusion of plaintiff’s evidence, -refused to award a nonsuit will not be considered as adjudicating that there was an issue of fact for the jury.
    2. The plaintiff offered in evidence the following question and answer of the witness Mrs. Bogart: “Q. Is it your opinion, Mrs. Bogart, that this thing you saw on the back of his [insured’s] neck was. the thing that caused his death? A. I do. Yes, sir. I think so.” The evidence of this witness was taken by deposition, the question being one propounded by the defendant’s counsel on cross-examination, and the answer was in response to that question. The defendant objected to the introduction of this question and answer, and by permission of the court withdrew the question, and the court ruled the evidence out. The judge did not abuse his discretion in so holding, as the answer o.r evidence of the witness was not competent. Moreover, had this evidence been admissible, its rejection by the court would not have been reversible error, since with the testimony in, the evidence would nevertheless have demanded a verdict in favor of the defendant.
    3. Where an accident policy insured against loss “from bodily injuries effected solely through external, violent and accidental means,” it is incumbent upon a plaintiff in an action thereon to show that in the act which preceded the injury alleged to have caused his death something “unforeseen, unxpected, or unusual occurred.”

      4. While, in such case, the allegation, that the insured met his death “as the result directly and independently of all other causes, of bodily injuries effected solely through external, violent and accidental means,” may be sustained by proof of circumstances, as -well as by direct evidence, the proved facts in this case, considered in connection with the defensive facts developed upon cross-examination, were not sufficient to make a jury question. Accordingly the court did not err in directing a verdict for the defendant.
    Decided November 19, 1919.
    Action on insurance policy; from Fulton superior court—Judge Pendleton. January 23, 1919.

      Winfield Payne Jones, for plaintiff.

      Anderson, Bounlree & Crenshaw, for defendant.
   Smih, J.

Only an elaboration of the rulings made in the 3d and 4th headnotes is deemed necessary. In an action on an accident policy such as the one sued upon in this case there is no legal presumption that death resulted from an “accident.” On the -contrary, if there is any presumption at all, it is that death resulted from natural causes. Therefore, it will not suffice a plaintiff seeking to recover' on an accident policy to rely upon a presumption that death resulted from accidental means, but the law imposes upon him the burden of proving such fact by competent evidence, either direct or circumstantial. In other words, there can be no accident, as a matter of law, without proof of a fact or facts pointing to death through accidental means. In the case at bar it was incumbent upon the plaintiff to show that in the act or acts which preceded the injury alleged to have caused the insured’s death something “unforeseen, unexpected, or unusual happened.” Whether or not this burden was súccessfully carried, either by direct or circumstantial evidence, is the controlling question in the case. The proof submitted on the trial shows that the insured was a traveling salesman, weighing approximately 200 pounds, possessed of apparent unusual physique and strength, and that he, together with his wife and two of her lady friends, were riding in an automobile when there occurred a blow-out, which he attempted to remedy by hurriedly changing tires, and in some way, not shown by the evidence, he ruptured a blood vessel and died almost immediately. Notwithstanding all this occurred in the daytime, and in the presence of the insured’s wife and her friends, there is absolutely no proof whatever that any of the usual and natural elements of an accident, such as a fall, slip, jar, blow, or shock of any kind, were seen, heard, felt, or observed. According to the direct evidence the act of the insured in attempting to change the tire on the automobile was voluntary, foreseen, and nothing unexpected or unusual happened in the performance of this ordinary act. Obviously, therefore, the plaintiff did not by direct evidence carry the.burden of establishing the essential fact that the insured’s death resulted through “accidental means,” in the sense in which these words are used in the policy. Neither were the circumstance^ in proof sufficient to carry this burden. In this connection counsel for the plaintiff very earnestly argues and insists that the circumstances surrounding the insured’s death, when considered in the light of the proof of his good health, force the conclusion that it was for the jury to say whether or not death was brought about through “accidental means.” This contention might be meritorious if the evidence actually proved good health; but in this particular the proof falls short. It is true that the insured’s apparent good health was proved by Ms wife and two physicians, but this was insufficient, in the absence of any proof as to the true condition of Ms vital organs, such as the heart and arteries, and such proof was absolutely, necessary in this case, inasmuch as it is alleged that the insured died from a ruptured blood vessel. Proof of a perfect exterior is wholly insufficient to supply proof of a perfect interior. For instance, one might be in apparently good health although his arteries be diseased. Whether or not the insured’s arteries were normal or diseased could have been ascertained by a scientific medical investigation, but no su*ht investigation or examination is shown by the evidence. It follows that there was no sufficient proof of good health. In other words, the testimony of the plaintiff’s expert witnesses proved nothing, since their evidence is based upon the hypothesis of perfect health, which would necessarily include normal arteries, and the hypothesis has no support in the record.

Able and industrious counsel for the plaintiff, in Ms elaborate .brief, has directed our attention to numerous cases from other jurisdictions, some of wMch do not altogether coincide with our ruling. This is due, no doubt, to failure to distinguish between accidental means and accidental death. Upon this matter courts have arrived at very different conclusions upon practically the same state of facts; and it is impossible to harmonize the decisions in which the question has been considered. Be this as it may, we are bound by the rulings of our own Supreme Court on this subject. See Cobb v. Preferred Mutual Accident Asso., 96 Ga. 818 (22 S. E. 976); Continental Casualty Co. v. Pittman, 145 Ga. 641 (89 S. E. 716). These rulings were followed by this court in the case of Fulton v. Metropolitan Insurance Co., 19 Ga. App. 127 (91 S. E. 228), in which it was held that an injury cannot be regarded as resulting from accidental means where the facts show that no unforeseen, unexpected, unusual, unin^ntional, or involuntary muscular effort or exertion occurred in the doing of the act which preceded the injury. The decision in the Fulton case, being, as above suggested, based upon the rulings made in the Cobb and Pittman cases, supra, is we think ample authority for our ruling. In that case, as in this case, the insured, who was a large man, ruptured a blood vessel during a physical exertion. The insured in that case was engaged in the extraordinary but voluntary exertion and strain of “pushing and pulling a boat” from the “mud” into the water; while in this case the insured was engaged in the ordinary exertion of changing tires on an automobile,— an act performed daily by 'thousands of men, and in many instances even by women and children. In that case a strain was proved, but in this case no such fact appears from the evidence. Also, in that case there might have been an accident or “something unforeseen, unexpected, or unusual” without its being seen, heard, felt, or observed, since the insured’s exertion was in the “dark,” and his feet were in slippery mud; while in this case it seems there could have been no accident, or “something unforseen, unexpected or unusual,” without its being seen, heard, felt, or observed, since the insured’s exertion was in broad daylight, in the presence of three persons, and his feet were on a paved road. If the door to speculation, inference, and conjecture was closed in the Fulton case (the decision in that ease being an affirmance of a nonsuit), how much more is this true in the case under consideration.

Counsel for the plaintiff undertakes to distinguish this case. from the Fulton case on the ground that in one the trial court directed a verdict and in the other the court sustained a motion to nonsuit. This is a distinction without a difference, for in both cases the real test was whether or not the evidence was sufficient “to show that in the act which preceded the injury alleged to have caused his death, something unforeseen, unexpected, or unusual occurred.”

There being no direct or circumstantial proof of death through “accidental means,” in the sense in which these words are used in the policy, the trial judge did not err in directing a verdict for the defendant. ,

Judgment affirmed.

J enkins, P. J., and Stephens, J., concur.


text:
    10396.
    CITIZENS BANK OF MAXEYS v. BANK OF PENFIELD.
    1. The owner and holder of a certificate of bank stock has the right to have the' stock transferred into his name on the books of the corporation, and the illegal refusal so to transfer (the refusal being treated as a conversion of the stock) makes the corporation liable for resulting damages.
    2. Where a certificate makes no reference to the existence of a lien, a transferee of corporate stock is not affected by the terms of a by-law lien of which he has no notice.
    3. The statement appearing on the face of a stock-certificate, “transferable only on the books of the corporation in person or by attorney on surrender of this certificate. In accordance with the by-laws of this bank,” is insufficient to charge a transferee with notice of what is on the books of the company, or of the existence of a by-law lien, or of the fact of the stockholder’s indebtedness.
    (a) Neither would notice given at a pledgee’s sale cure this want of notice.
    Decided November 19, 1919.
    Complaint; from city court of Lexington—Judge Cloud. February 7, 1919.

      Paul Brown, J. G. Famt, for plaintiff in error.

      Samuel PL. Sibley, J. S. Galloway, contra.
   Smith, J.

As to the demurrers interposed by both parties to this-suit, suffice it to say that the rulings thereon contain no reversible error, the controlling question for adjudication being whether or not the agreed statement of facts warranted the trial judge (who tried the case without a jury) in rendering judgment in favor of the plaintiff.

The agreed facts show that on March 5, 1912, L. J. Boswell, who owned five shares of stock in the Citizens Bank of Maxeys, transferred the stock in blank to the Bank of Penfield. The latter bank used the stock as collateral to secure a loan from W. P. McWhorter. Boswell was indebted to the Citizens Bank of Maxeys, and- the indebtedness was reduced to judgment in 1913. McWhorter and the Bank of Penfield, after the death of Boswell and twelve months after administration, sold as pledgees this stock, the Bank of Penfield becoming the purchaser at the sale. Subsequently to the sale (at which a representative of the Citizens Bank was present and gave notice that it claimed a by-law lien on said stock) the Bank of Penfield presented the stock-certificate and evidence of purchase to the Citizens Bank for transfer, and transfer was refused on account of said by-law lien. The Bank of Pen-field thereupon brought this suit against the Citizens Bank for the value of the stock.

Neither the Bank of Penfield nor McWhorter had any actual notice of the by-law lien, but it is contended that the following language, appearing on each of the five stock certificates, was sufficient to import notice: “This certifies that L. J. Boswell is the owner of one share of the capital stock of Citizens Bank, Maxeys, Ga., transferable only on the books of the corporation in person or by attorney on surrender of this certificate. In accordance with the by-laws of this bank.”

It is admitted by counsel for both parties that the owner ana holder of a certificate of bank stock has the right to have the stock transferred into his name on the books of the corporation, and the illegal refusal so to transfer makes the corporation liable for any damages resulting from such wrongful refusal. See Bank of Culloden v. Forsyth, 120 Ga. 575 (48 S. E. 226, 102 Am. St. R. 115); Hilton v. Sylvania Railroad Co., 8 Ga. App. 10 (68 S. E. 746); Bank of Norwood v. Ray, 21 Ga. App. 620 (94 S. E. 819). So, also, there is no question between counsel as to the validity of the by-law and the by-law lien (Civil Code, § 3375), but the defendant in error contends that it is a transferee without notice of the same. Neither is there any question between counsel that if the indebtedness of Boswell, the stockholder, existed before the Citizens Bank had notice of any transfer, the lien would be good as against such transferee with notice. Peoples Bank of Talbotton v. Exchange Bank of Macon, 116 Ga. 820 (43 S. E. 269, 94 Am. St. R. 144); Commercial Bank v. American Bank, 22 Ga. App. 688 (97 S. E. 107). Likewise, it is admitted by both parties that the transferee of stock of a bank with such a by-law and by-law lien as is relied upon in .this case must have notice thereof before he would be bound thereby. Bank of Culloden v. Bank of Forsyth, supra. It is obvious therefore that the question of importance in this case is one of notice. The plaintiff in error contends that the language appearing in the face of the certificates in question was amply sufficient to put the purchaser on notice as to the by-law lien relied upon. However, the defendant in error denies this. Here, therefore, is the crux of the entire ease. Of course, the notice given at the pledgees’ sale by the defendant in nowise effects this question. See American National Bank of Atlanta v. East Atlanta Bank, 147 Ga. 750 (95 S. E. 286). Let us, therefore, examine the language appearing on the face of the stock-certificates, the first clause of which is as follows: “This certifies that L. J. Boswell is the owner of one share of the capital stock of the Citizens Bank, Maxeys, Ga.” This statement, which is signed by the bank under its seal, when considered alone, merely states to the public that Boswell is the owner of one share of stock, the truth'of which the bank is of course estopped from denying. Consequently when the transferee received the certificate, it took that which the Citizens Bank recognized as the main muniment of title. This statement is qualified by the words “transferable only on the hooks of the corporation in person or by attorney on surrender of this certificate.” It is well-settled that this language does not import any notice whatever of a by-law lien. “A statement in a stock certificate that the same is ‘transferable only on the books of the corporation, in person or by attorney, on surrender of the certificate,’ does not charge the transferee with notice of what is on the books of the company, or of the existence of the lien, or of the fact of the stockholder’s indebtedness to the company.” Bank of Culloden v. Bank of Forsyth, supra. Generally speaking, all corporations have by-laws requiring the transfer of stock on their books for •the purpose of sending notice of meetings, paying dividends, voting, and the like. It has no connection with a by-law lien, and therefore does not suggest one or give notice of one. The ease of Sylvania & Girard R. Co. v. Hoge, 129 Ga. 734, 742 (59 S. E. 806), well illustrates the confusion that might arise by not requiring such a transfer as was demanded in this case, on the books of a corporation. We see, therefore, that although by-laws requiring a transfer on the books of a corporation are reasonable and prudent, lest the corporation come to have two certificates out for the same stock and become involved in liability thereupon, the language, “transferable only on the books of the corporation in person or by attorney on surrender of 'this certificate,” fails altogether to import notice of any by-law lien. We come now to the last words of the language under consideration, to wit: “In accordance with the by-laws of this bank.” These words, standing alone, are meaningless (except to direct attention to the fact that the bank has by-laws), and consequently, in order to be intelligently considered, must be viewed in connection with the language that immediately precedes them, which lanuage we have seen fails to make mention of or import the existence of a by-law lien, but merely serves to show how a transfer oNstock must be made.

To sum up the whole matter, the language appearing on the face of the certificates in question does not remotely suggest to a purchaser, or in anywise put him on notice, that the absolute ownership of the shares certified to by the corporation is to be limited by a lien thereon. In conclusion, the language of the certificates makes fairly applicable to the defendant bank the principle, “where one of two innocent persons must suffer from the act of a third, he who put it in the power of the third person to inflict the injury must bear the loss.” Civil Code, § 4537.

Judgment affirmed.

Jenlcins, P. J., and Stephens^ J., concur.


text:
    10409.
    DeMent et al. v. Rogers.
   Smith, J.

I. In an action for fraud and deceit in the sale and purchase of a horse and buggy the measure of damages is “the difference between the value of the thing sold at the time of delivery and what would have been its then value if the representation made by the defendant had been true.” Millirons v. Dillon, 100 Ga. 656 (28 S. E. 385).

2. Under the above ruling the court erred in charging the jury that if they found that the contract in this ease was entered into through deceit, and that the plaintiff was deceived in selling the property, it would be their duty to find in favor of the plaintiff for the amount sued for, with interest from the time of the delivery of the horse and buggy. This ruling applies to the 7th, 8th, and 9th grounds of the motion for a new trial.

(a) Moreover, the language complained of in these grounds of the amendments to the motion for a new trial contains an intimation of opinion upon the evidence, in violation of the Civil Code (1910), § 4863.

Decided November 19, 1919.

Attachment; from Tattnall superior court—Judge Sheppard.

Qollms & Stanfield, for plaintiff in error.

W. T. Burkhalter, contra.

3. The other assignments of error are without substantial merit, or the alleged errors are not likely to recur on another trial.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.