text:
    11191.
    Henry v. American Railway Express Company.
    Decided September 17, 1920.
    Certiorari; from Richmond superior court ■—■ Judge Henry 0 Hammond. December 13, 1919.

      E. K. Overstreet, C. G. Reynolds, for plaintiff in error.

      William K. Miller, contra.
   Stephens, J.

1. The answer to the writ of certiorari not having been filed at the term to which it was returnable, and no order having been taken directing the magistrate to answer, the petition for certiorari should, upon this ground, on motion of the defendant in certiorari, have been dismissed. High v. Georgia Railway & Power Co., 12 Ga. App. 505 (77 S. E. 588). This is true although the answer was filed before the case was reached in its order for a hearing, and notwithstanding there was a local practice of permitting such delay in the filing of answers to writs of certiorari.

2. A certificate by the magistrate admitting the truth of the allegations in the petition for certiorari, which is entered upon or attached to the petition before the petition has been sanctioned or the writ of certiorari has been issued, cannot be considered as an answer to the writ of certiorari. The magistrate has no authority to answer a certiorari until after -the issuance of the writ.

3. It was' error to overrule the motion to dismiss the certiorari.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    11300.
    Carroll v. Upchurch.
    Decided September 17, 1920.
    Certiorari; from Fulton superior court—‘Judge Pendleton. December 16, 1919.

      James & Bedgood, John H. Hudson, for plaintiff in error.

      Guy Parker, contra.
   Jenkins, P. J.

“ An answer to a certiorari must be filed on the first day of the term to which it is made returnable, unless further time be given. After the adjournment of the term it is too late to pass an order allowing further time within which to file the answer. It is the duty of the plaintiff in certiorari, during the first term, to discover that no answer has been filed, and to take an order requiring it to be filed within some specified time.” J. M. High Co. v. Ga. Ry. & Power Co., 12 Ga. App. 505 (77 S. E. 588); Civil Code (1910), § 5195. The court did not err in dismissing the certiorari in this ease.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    11307.
    Branson v. Townsand.
    Decided September 17, 1920.
    Action for slander; from city court of Hinesville-—-Judge W. C. Hodges. January 5, 1920. .

      Dorsey & Mills, for plaintiff.

      Ben A. Way, for defendant.
   Jenkins, P. J.

Being unable to say, as a matter of law, that the trial judge abused his discretion in this, the first grant of a new trial, this court will not interfere. Civil Code (1910), § 6204; Holland v. Williams, 3 Ga. App. 636 (60 S. E. 331); Smith v. Maddox-Rucker Banking Co., 8 Ga. App. 288 (1) (68 S. E. 1092).

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10459.
    Tuggle v. Green & Sons.
    Decided September 27, 1920.
    Complaint; from DeKalb superior court — Judge Smith. March 7, 1919.

      L. G. Fortson, L. J. Steele, Scott Candler, for plaintiff in error.

      Little, Powell, Smith & Goldstein, Moise & Riddell, contra.
   Jenkins, P. J.

In accordance with the rules of law governing this ease, as set forth by the Supreme Court in response to questions certified to it by this court (150 Ga. 361, 104 S. E. 85), the judgment of the. court below, directing a verdict for the plaintiff, is affirmed.

Judgment affirmed.

Stephens, J., concurs. Smith, J., disqualified.


author: Stephens, J.

text:
    10767.
    American Railway Express Company v. Archer.
   Stephens, J.

1. While a consignor of a shipment delivered to a carrier which afterwards goes out of business and is succeeded by another carrier may not, where there is no privity of contract between him and the latter carrier, recover against such carrier on the contract of shipment, yet, where the shipment was not lost through fault of the original carrier, but was delivered by the original carrier to the carrier succeeding to its business, and was by the latter carrier lost, the consignor may recover against the latter carrier for the conversion of the shipment thus actually had and received.

2. In a suit against the American Railway Express Company to recover for the loss -of a shipment claimed to have been consigned by the plaintiff to the Southern Express Company, where it appears that the Southern Express Company had ceased to do business, and, while it had not surrendered its ■ charter, its equipment, including wagons, horses, trucks, office furniture, etc., had been taken over by the American Railway Express Company, and that the American Railway Express Company now carries on the business formerly carried on by the Southern Express Company, evidence that the shipment had been delivered to a driver of a wagon of the Southern Express Company on or about April 1, 1918, and that this company had failed to deliver it to the consignee, in the absence of evidence authorizing the inference that the shipment had left the possession of the Southern Express Company before its business had been taken over by the American Railway Express Company, authorized the inference that the shipment was delivered to and remained in the possession of the Southern Express Company and was by that company delivered to the American Railway Express Company when the latter, on July 1, 1918, succeeded to the business of the Southern Express Company and took over its equipment, etc. Possession once proved in the Southern Express Company is presumed to exist in that company until the contrary is shown. Anderson v. Blythe, 54 Ga. 507, 508. Where the business of that company, including all of its equipment, etc., was transferred within three months thereafter to the American Railway Express Company, the inference was authorized that all shipments in the possession of the Southern Express Company were then transferred to the American Railway Express Company. Whether or not the latter company received the shipment was a question of fact for determination by a jury.

3. The petition alleged that on or about April 1, 1918, the plaintiff, in Atlanta, Georgia, delivered to the Southern Express Company, a carrier of express, goods belonging to the plaintiff, of a certain description and value, to be transported and delivered by the Southern Express Company to petitioner at Petersburg, Va., and that on or about July 1, 1918, “the Southern Express Company retired from business and the American Railway Express Company, defendant herein, assumed and took over the business of said Southern Express Company, its property, rights, and liabilities; ” that the Southern Express Company and the defendant American Railway Express Company had failed and refused, after demand, to deliver the goods to the plaintiff, and that the plaintiff had never received the same. This petition, properly construed, lays such a case as was made by the evidence, and was not subject to general demurrer.

4. Evidence that claims against the Southern Express Company which were paid by the American Railway Express Company were charged against the Southern Express Company was properly excluded.

5. Evidence that the records of the Southern Express Company failed to show a receipt of the alleged shipment was properly excluded, since it nowhere appeared that it was the custom and duty of that company to make such entries in the regular and usual course of business. Shields v. Carter, 22 Ga. App. 507 (3) (96 S. E. 330).

6. No other error of law appears.

7. The verdict for the plaintiff not being demanded as a matter of law, it was error upon the part of the judge of the municipal court to direct a verdict for the plaintiff. It was error to overrule the certiorari.

Decided September 27, 1920.

Certiorari; from Fulton superior court — Judge Pendelton. May 23, 1919.

Robert C. & Philip H. Alston, for plaintiff in error.

Madison Richardson, contra.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


text:
    10768.
    Callaway v. Globe & Rutgers Fire Insurance Co.
   Stephens, J.

1. Where suit is brought against a defendant who is the insured under a fire-insurance policy, and, after loss has occurred, the plaintiff serves summons of garnishment upon the insurer, seeking to subject to garnishment whatever indebtedness is due under the policy from the insurer to the insured, the plaintiff may, since the policy furnishes the standard by which the amount of the liability may be ascertained and fixed, recover against the garnishee upon proof of the defendant’s claim against the garnishee and the defendant’s debt to the plaintiff. 59 L. R. A. 366, note; 12 R. C. L. 804.

2. Where the garnishee, after having been served with summons of garnishment, and before final answer, enters into an agreement of settlement with the defendant and pays the amount agreed upon into court, such settlement does not bar the plaintiff from asserting -in his own behalf the rights of the defendant against the garnishee under the insurance policy. Drake on Attachments, § 453; 14 Am. & Eng. Enc. Law (2d ed.), 867. See, in this connection, Civil Code (1910), § 5124; 13 Am. & Eng. Enc. Law (2d ed.), 326.

3. Such an agreement by the insurer and payment of the sum agreed upon into court amounts to an adjustment of the claim with the insured, and may amount to a waiver by the insurer of the conditions in the policy, if any, precedent to the right of the insured to recover under the policy. 19 Cyc. 805. The garnishing creditor may take advantage of such waiver, and, upon proof of the insured’s actual 'loss under the policy, not exceeding the face value of the policy, and his own claim against the defendant, may recover against the garnishee.

4. The answer of the garnishee setting up as a defense such a settlement with the insured and a failure of the insured to comply with certain stipulations in the policy as to warranty and as to proof of loss, alleged by the garnishee as conditions precedent to its liability, and the evidence introduced by the plaintiff in support of his traverse to the answer of the garnishee tending to show that the property insured was at the time of the loss worth considerably more than the amount of the adjustment made in the settlement between the garnishee and the defendant, and the garnishee, by its action in adjusting the loss and paying the amount agreed upon into court, having waived its right to insist upon any of the terms or conditions of the policy as conditions precedent to its liability, and the evidence not demanding the inference that there was a breach of warranty by the insured, a verdict sustaining the garnishee’s answer was improperly directed.

Decided September 27, 1920.

Garnishment; from Fulton superior court — Judge Reid. May 5, 1919.

Hines, Hardwick & Jordan, for plaintiff.

Moore & Pomeroy, contra.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


text:
    10909.
    Voris et al. v. Early County.
   Stephens, J.

1. A cause of action is set out and a general demurrer is not good as against a petition where the petition alleges: that the plaintiffs are the transferees before maturity of a county warrant drawn by the commissioners of roads and revenues of a county upon the treasurer of the county and payable to the plaintiffs’ transferor; that said warrant was issued for the payment of materials actually used and needed for the public roads of the county, which was a lawful purpose; that during the year in which the warrant was issued the money was lawfully raised by the county for the road ■funds thereof and paid over to the treasurer of the county; and that payment of said warrant was refused after demand had been made for payment upon the treasurer of the county and upon the commissioners of roads and revenues of the county.

'2. The petition is not subject to demurrer upon the ground that the contract for the purchase of the materials for which the warrant was issued was not in writing and was not entered upon the minutes of the county commissioners. “ The law will presume that in the drawing of a county warrant all the officers concerned therewith have performed their duty. . . The contention that such is not the case is a matter for answer and not demurrer.” Neal Loan & Banking Co. v. Chastain, 121 Ga. 500 (6), 504 (49 S. E. 618).

3. The 5th paragraph of the petition, which alleges that the warrant was “drawn and issued for a lawful purpose, to wit: for'the payment of materials actually used and needed for the public roads of the county,” is subject to special demurrer as set out in paragraph 5 of the demurrer, upon the ground that it does not disclose the nature of the materials or that they were such as could be lawfully purchased by the county or used for a lawful county purpose.

4. A county warrant does not draw interest. It therefore follows that the prayer in the petition wherein judgment is prayed for interest upon the warrant is subject to special demurrer as set out in paragraph 7 of the demurrer.

5. Paragraph 6 of the petition is subject to special demurrer as set out in the 6th ground of the demurrer, upon the ground that it does not appear that the demand made for payment of the warrant was made after the warrant had matured.

Decided September 27. 1920.

Complaint; from city court of Blakely — Judge Sheffield. August 25, 1919.

L. M. Rambo, Pottle & Hofmayer, for plaintiffs.

A. H. Gray, Glessner & Collins, for defendant.

6. The other grounds of the demurrer are without merit.

7. Where the materials were furnished under an illegal contract which it was beyond the constitutional power of the county to make, the county is nevertheless liable for the actual value of the materials applied by the county to its benefit in the exercise of a lawful county purpose such as the maintenance of its public roads-. The issuance of a county warrant in payment for such materials is a prima facie adjudication that the amount stated therein is legally due. Neal Loan & Banking Co. v. Chastain, supra; Franklin County v. Crow, 128 Ca. 458, 462 (57 S. E. 784). It follows, therefore, that the amendment to the defendant’s plea, which alleged that the warrant was issued in payment of the contract price for materials furnished to the county under a contract which was illegal and beyond the power of the county to make, upon the ground that it was a debt in violation of the constitution of this State, because at the time of incurring the indebtedness the county had made no provision for its payment, that there was not at such time a sufficient sum of money in the treasury of the county to meet such obligation, and that such an amount could not be lawfully raised by taxes during the current year, but which alleged that the materials furnished were metal culverts and were used by the county during the year in which they were furnished, and were used by the county in the construction of the public roads of the county, was improperly allowed over the plaintiffs’ objection. The construction of public roads being a lawful county purpose, the use of materials by the county suitable for such purpose was presumably applied to the benefit of the county. Allowing the payment for the materials furnished to go by default during the year in which the liability was created will not prevent the county’s making provision for payment out of the funds raised during the succeeding year. Civil Code (1910), § 507. See further, in this connection, City Council of Dawson v. Dawson Water Works, 106 Ga. 696 (32 S. E. 907) ; Ford v. Mayor & Aldermen of Carlersville, 84 Ga. 213 (10 S. E. 732); Wilson v. Gaston, 141 Ga. 770 (82 S. E. 136) ; Butts County v. Jackson Banking Co., 129 Ga. 801 (60 S. E. 149, 15 L. R. A. (N. S.) 567, 121 Am. St. R. 244).

8. An agreement by a road superintendent, purchasing materials for the county to be used in the repair of the public roads, that payment will be made in the following year, is illegal and does not create any debt against the county.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


author: Smith, J. Jenkins, P. J.,

text:
    11368.
    COLUMBUS RAILROAD COMPANY v. JOYCE.
    Decided September 27, 1920.
    It appearing from the plaintiff’s petition that when she was standing on the platform of a street-oar of the defendant railroad company, which she had just boarded at a stopping place, for the purpose of being transported as a passenger, and was in the act of depositing her fare in a box provided for it, as the conductor or motorman of the car had instructed her to do, the car started off with a sudden jerk, throwing another .passenger against her and throwing her against an iron bar, and she thus received personal injuries, which the petition alleges “were not caused by any fault or negligence upon her part, but were the result of the fault, and negligence of the defendant, its agents and servants, in starting off said ear with a sudden jerk without any warning” to her, a cause of action is stated, and the court did not err in overruling a general demurrer to the petition. Jenkins, P. J., dissents.
    Action for damages; from Muscogee superior court — Judge Howard. February 3, 1920.

      Frank U. Garrard, A. S. Bradley, for plaintiff in error.

      T. T. Miller, contra.
   Smith, J.

The plaintiff’s petition, after the formal allegations as to jurisdiction, alleged: that the defendant company, was engaged in the business of running street cars propelled by electricity upon the streets of the city of Columbus, said cars being run for the purpose of carrying and conveying passengers; that a ear of the defendant company stopped at a certain transfer station to take on and discharge passengers; that on October 19, 1917, plaintiff boarded a car at said transfer station for the purpose of being transported as a passenger; that the car was what is known as a “ pay-as-you-enter ” ear, and as plaintiff stepped up on the platform of the car she was informed by the motorman or conductor that she should deposit her fare in the box, and she opened her purse for that purpose; that while so standing on the platform to deposit her fare “the car started off with a sudden jerk,” throwing another lady passenger against the plaintiff and throwing the plaintiff against an iron bar.- The petition then set out the particulars as to the injuries which plaintiff claimed she suffered. The plaintiff further alleged that the injuries were not caused by any negligence or fault on her part, but were the result of the fault and negligence of the defendant, its 'agents and servants, “in starting off said ear with a sudden jerk,” without warning her, while she was standing on the platform thereof and while depositing her fare in the box provided for that purpose, and that this negligence on the part of the defendant was the direct and proximate cause of her injuries. She' prayed for judgment against the defendant for pain and suffering.

The law provides that every railroad company (and this includes a street-railway company) shall provide a reasonably safe place for passengers to get upon its cars and to leave the same, and shall also allow the persons desiring to embark upon said cars or debark from the same a reasonable time in which to get on the car or get off the car; and the question 'as to what constitutes a reasonable time is always a question of fact for determination by the jury. The allegations in the petition clearly set out that the plaintiff was in the act of getting on the car of the defendant, and that she had not reached a place of safety within the car, but was stopped by the servant or agent of the defendant in order for her to deposit her fare in a box provided for that purpose. Upon allegations being made in the petition setting out all these facts, a prima facie case would be made out in favor of the plaintiff, and the petition would be good as against a general demurrer. If the plaintiff’s proof sustained these allegations and showed the injuries alleged to have resulted therefrom, the burden would then be on the defendant company to prove that its agents and servants in this matter exercised all ordinary and reasonable care and diligence; and in this case—that of a passenger—-such care would be extraordinary care. This ruling is in accord with the rulings made in Griswold v. Macon Railway & Light Co., 6 Ga. App. 1 (63 S. E. 1132), and Holleman v. Georgia Southern & Florida Railway Co., 12 Ga. App. 755 (78 S. E. 428), and is not in conflict with the holding in Central of Georgia Railway Co. v. Parish, 17 Ga. App. 689 (87 S. E. 1095). In the case last cited a passenger had safely embarked upon the car and got up from a seat, and at the time of the accident was moving about in the car. That is 'a very different case from one in which a passenger is seeking to board a car and is injured before having reached a place of safety within the car.

Judgment affirmed.

Stephens, J., concurs.

Jenkins, P. J.,

dissenting. Upon proof of injury to a passenger of a railway or street-railway company by the running of its ears, the law raises a rebuttable presumption that the injury was brought about by negligence of the defendant company; but the presumption thus raised relates only to the particular acts of negligence charged by the petition; and if it should clearly appear that none of the acts set forth can properly be taken or accounted to be negligence, no presumption against the company will arise. The question in this case, as raised on demurrer, is whether the act of negligence charged by the petition, and upon which the plaintiff must rely, is sufficient to authorize a recovery. The act of the defendant which is alleged to have constituted negligence consists in having started off the car “ with a sudden jerk, without any warning to plaintiff, while she was standing upon the platform thereof and in the act of depositing her fare in a box provided for that purpose.” Unless this court is prepared to hold that the petition is sufficient because the jury would be authorized to find that the mere starting of the car at all at the time and under the circumstances alleged was an act of negligence, acts of negligence in the manner of starting it must be alleged. It will be observed that while the petition states that no warning was given of the start, it is not contended that the starting of the car at the time and under the circumstances alleged was unusual or unexpected, or that the jerk attending it was either violent, unusual, or unnecessary. The petition does not undertake to set up any state of facts such as might impose upon the company any special or unusual duty owing to the plaintiff, but on the contrary it specifically shows that she was then and there in all respects “sound, healthy, and vigorous.” Thus, so far as the allegations of the petition go, and construing it, as we must, most strongly against the pleader, it can be assumed: (1) that the starting of the car at the time and under the circumstances alleged was in accordance with the general, proper and customary practice; which the petitioner was therefore bound, without any special warning, to anticipate; (2) that no reason was apparent or in fact existed why the common, general, and usual practice of the company in starting its cars at such a time and under such circumstances should have been departed from; (3) that the jerk given in starting, while sudden, was neither unusual, nor violent, nor unnecessary.

Ought it then to be said that after a street-car passenger, to whom no special or unusual duty was owing, has safely entered upon a car and is standing upon its platform engaged in paying the fare, the sudden starting of the car at the usual, proper, and customary time, in the usual and customary manner, without any violent, unusual, or unnecessary jolt, would be accounted as actionable negligence The practical and inevitable effect of ruling that it could be so taken would be to put upon the company the duty of always holding its cars stationary until each and every passenger had not only been permitted to safely enter upon the platform, but had been given time to pay his fare and thereafter to find and reach his seat or place for standing inside the car. This seems in fact to be the clear intimation contained in the majority opinion, and constitutes the real basis of the holding, since the opinion states that the plaintiff was in the “act of getting on the car,” was standing on the platform engaged in paying her fare, and “had not reached a place of safety within the car.” In other words, it was not what the defendant did, or the manner in which it was done, which constitutes the negligence, but the negligence consists in starting the car at all at the time and under the circumstances alleged. This, I take it, imposes a totally impracticable burden, and, as a matter of general and common knowledge, would have the effect of paralyzing the practical and efficient operation of every street-car. I am not aware of any law of this State or of any decision by either of its appellate courts which can be taken to have imposed such a duty or to have defined such a rule.

In the case of Ball v. Mabry, 91 Ga. 781 (18 S. E. 64), in which the plaintiff claimed to have been injured by a jolt while he was riding as a passenger on a freight-train, the Supreme Court said: “As before remarked, a passenger on a freight-train takes the risk of the usual and ordinary jolts incident to handling and running spch trains. If he is injured by reason of such jolts, the nature and degree of the jolt complained o£ are material. It is material for the plaintiff to show that it is unusual and unnecessary; it is material for the defendant to show that it was a usual and necessary jolt.” There would seem to be quite as much justice in applying this reasoning to the operation of street-cars, where, as is well known, from the very necessity of the case, the stops must be both frequent and brief, and where, in order to at all subserve the use intended by the service, the ears must start promptly at the earliest possible moment comportable with the duty of allowing passengers to reach a place of safety. Just as it is a matter of common knowledge that riding upon a freight-train must necessarily be attended with jolts and jars, so is it a matter of universal knowledge that a passenger entering upon a street-car must anticipate the prompt starting of the car just as soon as he has gained a safe entrance. “We cannot shut our eyes to matters of public notoriety and general cognizance.” Pollak v. Niall, 137 Ga. 23, 25 (72 S. E. 415, 416, 35 L. R. A. (N. S.) 13).

Of course, if in starting its car at such time and under such circumstances the company should fail in any special duty it might reasonably owe to a particular passenger, or if the petition could be taken to charge that the starting was attended with an unusual, violent, and unnecessary jolt or jar, the rule would be different. It does not, however, seem permissible to read into the petition any omitted averment to the effect that the alleged sudden jerk with which the car was started was either violent, unusual, or unnecessary. In the absence of any such averment, it does not seem proper merely to infer and to hold, as a matter of law, that the alleged manner of starting must necessarily have been accompanied with any degree of violence; and consequently it can not reasonably be held, as a'matter of law) that the jerk, as described and complained of, was either violent, unusual, or unnecessary. In Augusta Ry. & Elec. Co. v. Lyle, 4 Ga. App. 113 (60 S. E. 1075), this court said: “It has been repeatedly held by the Supreme Court that it is not sufficient, as a basis of recovery because of negligence, to show a sudden, violent, and unusual jerk of the car; that the proof should also show that the sudden, violent, and unusual jerk or motion of the car wa$ unnecessary at the particular time and place.” See also Central of Ga. Ry. Co. v. Parrish, 17 Ga. App. 689, and cases there cited. In the instant case, not only is there no allegations that the sudden jerk in starting was unnecessary, but there is nothing whatever going to show that it was even violent or unusual. As already stated, it is not the duty of courts to supply any such omissions, but the petition must stand on the allegations actually made, and, under the familiar rule of construction, must be taken most strongly against the pleader. Persons are bound to anticipate those things which are to be reasonably expected. Thus, when a street-car is started at a time and under circumstances such as are reasonable; usual, and customary, and the jerk attending the starting, so far as the petition shows, amounts to nothing more than is usual and necessary, there is nothing charged by way of negligence which would authorize a recovery.


text:
    11007.
    Waddell v. Watkins Medical Company.
    Decided September 27, 1920.
    Complaint; from city court of Polk county — Judge Tison. September 25, 1919.
   Stephens, J.

1. Hollowing the ruling of this court in Watkins Medical Co. v. Marbach, 20 Ga. App. 691 (93 S. E. 270), the contract sued on is one of suretyship and not of guaranty; and the petition, joining the principal and sureties as defendants, was not subject to demurrer upon the ground of a misjoinder of parties defendant.

2. The obligation sued on being joint and several, the suit properly proceeded against one of the sureties after having failed as to the principal and the other surety. McMillan v. Heard National Bank, 19 Ga. App. 148 (91 S. E. 235); Civil Code (1910), § 3559.

3. Where a witness testifies that he is familiar with the handwriting of a party, a written instrument is admissible in evidence as to the handwriting of such party upon proof by the witness that it is genuine. Civil Code (1910), § 5835.

4. Certain writings which the defendant admitted to be in his handwriting were properly admitted in evidence for the purpose of comparison with the disputed handwriting, without further proof of execution. Civil Code (1910), § 5836.

5. The court did not err, as complained of in the fourth, fifth, and sixth grounds of the amendment to the motion for new trial, in rejecting certain testimony; as the same was irrelevant and immaterial.

6. In a suit against a surety upon a written contract which purports to be signed by the defendant and another person as cosurety, whose signatures are attested by different persons as witnesses, where there is an issue formed on a plea of non est factum filed by one of the alleged sureties, evidence that the signature of the other surety was a forgery is irrelevant and immaterial to the issue, and is properly excluded when it does not appear that the signatures of both the alleged sureties were attached to the contract at the same time or under circumstances indicating that the signatures were attached as part of one transaction.

■Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.

William Waddell was sued jointly with F. L. Westbrook and G. C. Golden, executor of W. F. Golden, deceased, by the J. R. Watkins Medical Company, for $1141.93. The plaintiff dismissed the suit as to Westbrook, who had not been served, and also dismissed it as to Golden; and it proceeded against Wad-dell, and a verdict was rendered against him for the full amount sued for. The suit as against Waddell was based on a written contract dated December 1, 1914, signed by Waddell and Golden respectively as “1st surety” and “2nd surety,” and designating them as “the undersigned sureties,” in which, in consideration of one dollar paid by the J. R. Watkins Medical Company and the execution of a contemporaneous agreement between that company and F. L. Westbrook for the sale of goods to him by it, and an extension of the time of his existing indebtedness to it, amounting to $1378.51, the signers “ jointly and severally promise and guarantee” the payment of this indebtedness and payment for the goods as provided in the agreement referred to. The writing is identical in its material parts with the writing set out in the case of Watkins Medical Co. v. Marbach, 20 Ga. App. 692-3. Waddell admitted that about December 1, 1914, he signed a bond to the plaintiff like the one sued on, but only for $337; and he pleaded non est factum as to the instrument sued on.

Paragraph 5 of the foregoing decision relates to grounds of the motion for a new trial which in substance are as follows:

(4) Waddell having testified that he “signed a bond for Mr. Westbrook about December, 1914, for $337,” was asked, “What was your impression, about your liability on a contract like that at the-time you wrote that letter?” referring to a letter “dated January 22, to Col. Boykin at Carrollton,” which had been admitted in evidence. The witness answered that he “thought you made 'a bond and it meant that you was liable for all the goods that he got afterwards.” “On motion of counsel for the plaintiff the court ruled out what the witness thought about his liability. Movant proposed to prove by the witness . . his impression or understanding of his liability under the contract he signed for $337, for the purpose of explaining why he wrote the letters to the company and to Col. Boykin, attorney for the plaintiff, and that his letters referred to his liability on the $337 contract and not on the. one sued on. Movant insists that the court erred in not allowing the witness to so testify.”

(5) Two grounds are numbered 5. In one of these it is complained that testimony of Carroll, whose name appears as a witness on the contract sued on, that he did not see Golden sign the contract sued on, was excluded by the court as being immaterial and irrelevant. It is contended that this testimony “was admissible as a circumstance that the paper sued on was attested in the absence of the parties purporting to sign as sureties.” In the other ground numbered 5 it is complained that the testimony of G. C. Golden, that the name of W. F. Golden on the paper sued on was not the handwriting of W. F. Golden, was excluded by the court as being irrelevant and immaterial. It is contended that this testimony was admissible “as a circumstance with the other testimony in the case to illustrate whether” the defendant Waddell signed the contract sued on with W. F. Golden as one of the alleged sureties.

(6) It is complained that the court erred in excluding as irrelevant certain testimony of the defendant Waddell to the effect that in 1914 Westbrook would get drunk and lose his goods out of his wagon, and that he (Waddell) would not have signed “an obligation to pay a debt that he owed for as much as $1300 at that time.” It is contended that this testimony was admissible to show the improbability of the execution of the instrument sued on.

Taylor Smith, W. W. Mundy, for plaintiff in error.

Boykin & Boykin, Bunn & Trawick, contra.


text:
    11165.
    Parcel Delivery Company v. American Oil Pump & Tank Company.
   Stephens, J.

1. “ Where the parties have reduced to writing what appears to be a complete and certain agreement, importing a legal obligation, it will, in the absence of fraud, accident, or mistake, be conclusively presumed .that the writing contains the whole of the agreement between them, and parol evidence of prior or contemporaneous conversations, representations, or statements will not be received for the purpose of adding to or varying the written instrument.” Case Threshing Machine Co. v. Broach, 137 Ga. 602 (73 S. E. 1063). A custom or usage which is repugnant to the terms of an express contract is not permitted to operate against it, and evidence of it is inadmissible; for while usage may be admissible to explain what is doubtful, it is never admissible to contradict what is plain. Park v. Piedmont & Arlington Life Ins. Co., 48 Ga. 601, 606.

Decided September 27, 1920.

Certiorari; from Fulton superior court—Judge Pendleton. October 14, 1919.

Lawton Nalley, for plaintiff in error.

W. S. Dillon, C. M. Lancaster, contra.

2. In a suit by a seller against a purchaser to recover the purchase-money for a gas tank which had been sold by the plaintiff to the defendant under a written contract which purports to contain the entire agreement between the parties, any bare representation or promise without consideration, not embodied in the contract made by the agent for the seller with the purchaser, that the seller would install the tank in accordance with the ordinances of the city, or any custom obtaining that the seller was in the habit of installing tanks sold by it in accordance with the ordinances of the city, which custom was known to the purchaser, can form no part of such, contract.

3. Where the seller was under no contractual obligation to install the tank which it had sold to the purchaser, but gratuitously undertook to install the same and did install it, and afterwards, with or without the purchaser’s consent, removed the tank at the instance of the city ñre-inspector and cast it aside on the premises of the purchaser, and there left it in a good but useless condition, such conduct on the part of the seller constituted no breach of the contract on its part; nor was there any rescission of the contract.

4. Where in such a suit the defendant’s plea set up an illegal defense, but was held good against a demurrer, and.where evidence was admitted in support of the plea, such defense could, on a motion to direct a verdict for the plaintiff, be disregarded altogether.

5. With the defendant’s illegal defense and the evidence in support thereof disregarded, • the verdict for the plaintiff finding for the purchase-money was demanded. The judge of the municipal court who tried the case did not err in directing a verdict for the plaintiff, and the certiorari was properly overruled.

Judgment affvnned.

Jenkins, P. J., and Smith, J., concur.


author: Smith, J.

text:
    11489.
    MONTGOMERY v. LESTER.
    Decided September 27, 1920.
    This being a suit to recover commissions alleged to be due under a broker’s contract, and the petition failing to show that the plaintiff produced a purchaser who was ready, able, and willing to buy the-property placed in his hands for sale, on the terms prescribed by the owner, the court did not err in dismissing the petition, on general demurrer.

      Complaint; from city court of Thomasville — Judge W. H. Hammond. April 2, 1920.

      Hay, Joiner & Hammond, for plaintiff.

      Titus & Dekle, for defendant.
   Smith, J.

Montgomery sued Lester for commissions alleged to be due Mm as a real-estate broker, .for procuring a purchaser for a certain tract of land described as follows: “ (Except 65 feet on each side of a new line surveyed by the Atlantic Coast Line Bailroad). Beginning at a stake in the center of Magnolia Boad on the south line of lot No. 3 in the 13th district of Thomas county, Georgia; thence along west margin of Magnolia Boad northerly direction east 48-75 chains to a corner; thence south 58 west 17 chains; thence south 3-08 chains to stake; thence south 70 west 27 chains to stake on east side of old right of way of A. C. L. Bwy.; thence along this right of way southerly to line between J. H. Wade and B. E. Lester Sr.; thence along line easterly to Charlie Branch and along meanderings of the branch to old right of way of A. C. L. Bwy., and along said right of way to starting on Magnolia Boad, containing 123 acres more or less.” Petitioner alleges that he contracted to sell for the defendant the above-described land at $50 per acre, on the basis of a five per cent, commission, and that in pursuance of this agreement he advised the defendant that “he thought he had a purchaser,” and that the defendant wrote to him as follows: “Bind out definitely if your man would take place if he could get possession at once. Have him put up confidence money. If you find that you can put deal over, you can get a lawyer to copy from the records description of land. Make out a deed, send it to me to sign, enclosing certified check less your commission.” In the plaintiffs petition it is alleged that he thereupon closed the deal with his prospective purchaser, who actually put up $500 as part payment and agreed to pay the balance of the purchase-price when the deed was signed by the owner and delivered to him; that he immedately sent to the defendant 'a deed' copied from the deed records of Thomas county, as .he was instructed to do, which deed called for 123 acres, more or less. He next alleges that he received from the defendant a letter which said: '“Your letter with enclosure of deed to'hand. I am certainly glad to know that you have a purchaser. I notice you have deed made out for 123 acres while the deed on record calls for 123 acres, more or less. According to Mr. Parker’s survey there is 124.91 or practically 125 acres. I am willing to sell the place at stipulated acres [italics ours], without more or less clause. If you will have the place surveyed, .my expense, make out new deed.” The plaintiff alleges, that on receipt of this letter he had the land surveyed, and that the survey showed 108.96 acres, but that the defendant owned only “approximately” 100 acres, 8 acres having previously been sold to the Atlantic Coast Line Kailway Company for a right of way; that he at once sent a plat of the survey to the defendant, in order that the latter might know the result and make a deed to the would-be purchaser in accordance therewith, but that the defendant declined so to do, stating that he was not satisfied with the acreage indicated by the survey. The allegations of the petition show also that the defendant did not ask for commissions on the basis of a sale for 123 acres, but on the basis of 100 acres.

The sole question presented for adjudication is whether the trial judge erred in sustaining a general demurrer and dismissing the petition which set out the above facts. Unquestionably the contract declared upon is the usual and general broker’s contract, under which he earns his commissions only when, during the agency, he finds a person ready, able, and willing to buy, and who actually offers to buy, on the terms stipulated in the contract (Civil Code of 1910, § 3105); and the agent has made a sale and is entitled to his commission if he shows that lie has complied with these conditions, although, “ through the fault or disinclination of the principal, no actual sale is ever consummated.” Kesler v. Stults, 15 Ga. App. 735 (1) (84 S. E. 201).

It is true the contract failed to fix any time limit for the procuring of a customer, but that is of no importance in this case, since the petition clearly shows that the defendant continually recognized the plaintiff as his agent. So, also, where no time is fixed in such a contract, the law fixes a reasonable time. See McMillan v. Quincy, 131 Ga. 63 (1) (12 S. E. 506). In fact, under the allegations of the petition (which for the purpose of the question at issue stand admitted), we do not think the defendant has any legal right to quibble about the time of payment, the time of the execution of the contract, or the failure of the plaintiff to send a certified check to cover the purchase-price, less his commissions, since the only reason given by him for finally refusing to consummate the proposed sale was that he was dissatisfied with the number of acres stipulated in the deed sent to him to sign, and that it did not correspond to the deed on record which he had directed and instructed plaintiff to copy. “ When a party gives a reason for his conduct and decision touching anything involved in a fcontroversy, he cannot, after litigation has begun, change his mind and put his conduct upon another and different ground. He is not permitted to thus mend his hold.” Fenn v. Ware, 100 Ga. 563, 566 (28 S. E. 238, 239).

This brings us to what we consider the real question in the case, to wit, whether or not the deed sent to the defendant by the plaintiff was in strict accord with the former’s explicit instructions; and if the deed did sufficiently correspond with the deed' on record, which the plaintiff was directed to copy, was the failure of the defendant to carry out the trade such an act as would entitle the plaintiff to recover his commissions, in view of the latter’s further acts and efforts in the matter of procuring a purchaser? It will be recalled that the petition alleges that the defendant returned the deed to the plaintiff, calling his attention to the fact that he had described the land as containing 123 acres, when, as a matter of fact, the deed on record to which'he was directed for a description described the land as containing “123 acres more or less.” The defendant also advised the plaintiff in this same letter that the land had been surveyed'and contained 124.97 acres, but that he was “willing to sell the place at stipulated acres, without more or less clause,” if plaintiff would have the land surveyed. Obviously, if the contents of this letter be true, the deed sent to the defendant was not an exact copy of the deed on record, but inasmuch as the defendant was willing to treat it as sufficient, had the plaintiff been content to stand upon the terms of the original contract and insist upon his rights at this juncture of the negotiations, we think he would probably have been entitled to his commissions. However, it is clear, from the allegations of his petition, that he waived this right by having the land surveyed, which survey it is alleged showed that the defendant only owned “approximately” 100 acres, and thereupon, on his own motion, undertook to sell the tract as containing 100 acres, communicating his action to the defendant, which the latter refused to ratify. This we think the defendant had a right to do, for, construing the petition, as we must do, most strongly against the plaintiff, the conclusion is inevitable that he originally undertook to sell for the defendant a tract of land described as containing 123 acres at $50 per acre. In fact the plaintiff alleges that he actually closed the deal on the basis of 123 acres and drew a deed himself calling for this acreage, and there is absolutely nothing in the petition to even indicate that the defendant was willing to sell on any basis other than 123 acres. Certainly it cannot be said that the defendant abandoned the terms of the original contract and agreed to sell the tract on a basis of less than 123 acres simply because he wrote to the plaintiff to have the land surveyed; for in the same letter he specifically stated that he was willing to sell only at “ stipulated acres,” which term unquestionably meant 123 acres, and not that he was willing to sell at whatever acreage the plaintiff’s survey might show.

It being therefore clear, from the allegations of the petition, that the plaintiff failed to produce a purchaser who was ready, able, and willing to buy the property in question on the terms prescribed by the owner, the court did not err in dismissing the same on general demurrer.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    10293.
    Fidelity & Casualty Company of New York v. Young Shoe Parlor.
    Decided October 1, 1920.
    Action on insurance policy; from Fulton superior court — Judge Pendleton. December 17, 1918.
    1, The action was upon a policy insuring against loss by burglary of goods “from within the premises” defined in the policy, which contains provisions limiting the meaning of the term “premises and which in an attached schedule states “the location of the building and that “the assured occupies Rooms 206 and 207.55 The first question certified by the Court of Appeals to the Supreme Court was in substance whether 'the policy covered goods which at the time of the alleged loss were not in the rooms designated in the policy, but were in a basement room occupied by the insured as a storeroom on a different floor of the building. The question was answered in the negative. The material provisions of the policy are set out in 150 Ga. 402.
   Broyles, C. J.

Under the rulings made by the Supreme Court on September 15, 1920, in answer to certain questions in this case certified by this court (150 Ga. 402, 104 S. E. 429), neither count of the plaintiff’s petition set out a cause of action, and the trial court erred in overruling the general demurrers thereto.

Judgment reversed.

Bloodworth, J., concurs. Luke, J., absent on account of illness.

2. Whether an estoppel to deny liability was shown by facts alleged in the second count of the plaintiff’s petition was a question also certified, and also answer.ed in the negative. The facts are set out in 150 Ga., supra.

Rosser, Slaton, Phillips & Hopkins, for plaintiff in error.

Little, Powell, Smith & Goldstein, contra.


author: Bloodworth, J.

text:
    10804.
    GRAHAM v. THE STATE.
    Decided October 1, 1920.

      “ Testimony showing that one charged with having, controlling, and possessing intoxicating liquors was seen in an intoxicated or partially ■ intoxicated condition, and that such condition was caused by the drinking of intoxicating liquors, is not of itself sufficient to authorize the jury to find that the defendant possessed and controlled such liquors, either at the time he was observed to be under their influence or shortly prior thereto.”
    Indictment for misdemeanor; from Appling superior court — Judge Highsmith. June 6, 1919.

      Padgett & Watson, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, contra.
   Bloodworth, J.

The indictment against the plaintiff in error charged that he did “have, control, and possess certain spirituous etc., liquors. On the trial of the case one witness swore : “’Mr. Graham was cursing, and from his actings and conduct I am pretty sure he was drinking. . . My opinion is that he was under the influence of intoxicating liquors. Another witness swore that he told the accused that he was “too full to be on the streets; that he smelled the breath of the accused and “it smelled like he had been drinking something, some kind of whisky or something like that. . . My opinion is that he was under the influence of intoxicating liquors.” No witness swore that he saw the accused with any liquor in his control or possession. The judge charged the jury': “I charge you that if you lind, under the evidence in the case, that in this county, within the -time charged in the bill of indictment, the defendant had been drinking, and the circumstances showed, with the degree of certainty indicated, that he had been drinking intoxicating liquors, then that would authorize you to infer that he had intoxicating liquors in his possession in this county, in violation of the law of this State with respect to intoxicating liquors.” The trial resulted in a verdict of guilty. A motion for a new trial was made, one ground of which embodied exceptions to the excerpt from the charge quoted above. The motion was overruled and the ease came to this court, which certified to the Supreme Court the following question : “Upon the trial of one charged with having, controlling, and possessing intoxicating liquors, is testimony showing that he was seen in an intoxicated or partially intoxicated condition, and that such condition was caused by the drinking of intoxicating liquors, sufficient to authorize the jury to find that the defendant possessed and controlled such liquors, either at the time he was observed to be under their influence or shortly prior thereto?” This question the Supreme Court answered in the negative. For full opinion of the Supreme Court see 150 Ga. 411 (104 S. E. 248). The headnote of the opinion of the Supreme Court is made the headnote of this decision.

Under this ruling the above-quoted charge was error, a new trial is imperative, and the other grounds of the motion for a new trial need not be considered.

Judgment reversed.

Broyles, C. J., concurs. Luke, J., absent on account of illness.

CASES DECIDED IN THE COURT OF APPEALS OF GEORGIA AT THE OCTOBER TERM, 1920


text:
    11510.
    FIRST NATIONAL BANK OF OCILLA v. HARRIS, administrator.
    Decided October 5, 1920.
    Under the facts of this case the bank was liable to the depositor for the amount of her deposit, which it paid to its cashier upon his forged indorsement of the name of the payee on a check delivered to the cashier by the depositor’s agent' in exchange for a promissory note to which the cashier had forged the name of the payee of the check ■ as maker and signed his own name individually, the cashier falsely representing to the depositor’s agent, who had requested him to procure a borrower of Her money, that the person whose name was thus forged had agreed to take the proposed loan. The facts relied upon by the defendant as showing negligence on the part of the depositor constituted no defense. The court did not err in directing a verdict against the bank.
    Complaint; from Irwin superior court — Judge Eve. March 31, 1920.
    Application for certiorari was denied by the Supreme Court.
    From the evidence it. appeared that in January, 1914, W. M. Harris, as agent for his wife, went to the First National Bank of Ocilla, in which she had a deposit of $1,000, and asked E. A. Tapp, the cashier of the bank, if he knew of a good man to whom he (Harris) could make a loan of $1,000. Tapp promised to “ look out ” and let him know, and later called him into the bank and said that J. E. Howell, Tapp’s uncle, would take the money. Harris then told Tapp that if Howell would make out a note and leave it at the bank, he would leave a check for the money. In the course of a few days Harris returned to the bank and received from Tapp a note for $1,000, payable to Mrs. Harris, purporting to have been signed by Howell and signed also by Tapp, and gave to Tapp in exchange for it a check upon the bank for that amount, in the name of Mrs. Harris, payable to Howell. Howell’s name on the note had been forged by Tapp, and Howell knew nothing of the transaction. Tapp forged the name of Howell on the back of the check, indorsed his own name on it, and collected the money on it from the bank; it was charged to Mrs. Harris on the books of the bank, and the check was in due course returned to her by the'bank, with a statement of her account, showing its payment.
    On maturity of the note, one year after its date, it was extended and the interest to maturity ($100) was paid, but Howell knew nothing of this. Tapp left the bank in September, 1915, and absconded in the following November; and it was not until after the absconding that Harris learned of-the forgeries or had any communication with Howell in regard to the note. Howell was vice-president of the bank, and it was testified that a man of his means and financial standing could readily have borrowed money in the community in which the bank was situated and in which he and Harris resided, without paying -the excessive rate of interest, of 10 per cent, per annum, which Tapp had inserted in the note. Harris testified that he did not tell Tapp that the rate of interest must be 10 per cent., and that this rate was in the note when he received it. Fruitless efforts to recover the money were made by Mrs. Harris in attachment and bankruptcy proceedings against Tapp shortly after he absconded, and on March 28, 1916, she demanded the money from the bank, her check of that date for $1,000, payable to “ Cash,” being then presented for payment. The demand was refused and this suit was brought against the bank' for that amount and interest from the date of the demand. The court, at the conclusion of the evidence on the trial, directed a verdict for the plaintiff, the defendant made a motion for a new trial, on the ground that the directing of the verdict was error for various reasons stated; the motion was overruled, and the movant excepted. The bank’s main contentions are stated in the following points from the brief of its counsel :
    1. National banks are not authorized to lend money for depositors or others, and Tapp acted as agent for Mrs. Harris, and not for the bank, and the bank can not be made liable for his acts as such. 63 Ark. 418 (39 S. W. 60); 10 Ga. App. 270.
    2. The conduct of Mrs Harris in procuring Tapp to act for her made a case of dual agency, not known to the bank, and the effect was to make him exclusively her agent. 3 Ga. App. 589; 118 Ga. 876; 113 Ga. 955; 104 Ga. 772.
    3. The plaintiff was grossly negligent : (a) in dealing entirely with Tapp and in employing him in an inconsistent position; (b-d) in not communicating with Howell and making inquiry as to the genuineness of the note. The excessive rate of interest and other circumstances shown by the evidence were sufficient to put the plaintiff on inquiry; their sufficiency was a question of fact for the jury. 10 Ga. App. 356; 20 Ga. App. 682 (2); 22 Ga. App. 519 (1). (e) Tapp’s interest in the transaction by reason of having signed the note as joint maker was sufficient -to put the plaintiff on inquiry; and she was further put on notice by the fact that the paid check returned by the bank showed indorsements in the names of Howell and Tapp in the same handwriting. 63 L.R.A. 952.
    4. After the forgery became known to the plaintiff her negligence was so gross as to relieve the bank of liability: (a) She treated the indebtedness as that alone of her agent Tapp and proceeded against him first by attachment and then by bankruptcy proceedings; (b) she gave no notice to the bank as to the forged indorsement, unless the presentation of a cheek about four and a half months after discqvering the forgery amounted to such notice. 221 Pa. 588 (70 Atl. 891, 20 L. R. A. (N. S.) 79); 45 Fed. 163; 39 Pa. Superior Ct. 438; 245 Pa. 97 (91 Atl. 210); 248 Pa. 135 (93 Atl. 875); 252 Pa. 304 (97 Atl. 399, 14 Neg. & C. Cas. Anno. 812); 117 U. S. 96; 40 L. R. A. (N. S.) 657. Tapp’s knowledge was not notice to the bank : 7 Corpus Juris, 551, 560; 88 Ga. 797; 92 Ga. 735; 75 Ga. 149 (1); 16 Ga. App. 802, 812-3; 22 Ga. App. 397; 116 Ga: 820 (3); 112 Ga. 823; 122 Ga. 362; 240 Fed. 111; 111 U. S. 156; 100 Fed. 709.
    While the exact question has never been passed upon in this State, its courts have recognized that there may be such negligence as would relieve a bank from liability for payment on a forged indorsement : 114 Ga. 683 (2); 17 Ga. App. 572. Other decisions as to negligence on the part of the depositor are : 24 La. Ann. 220 (13 Am. R. 124); 34 L. R. A. (N. S.) 1100; 55 Wis. 364, 13 N. W. 235, 42 Am. R. 719; 50 L. R. A. 76; 64 Ill. App. 229; 35 Kan. 360 (11 Pac. 141, 57 Am. St. R. 171, 3 R. C. L., sec. 174); 191 Mass. 159 (114 Am. St. R. 595); 51 Md. 562 (34 Am. R. 325); cases in notes in 20 L. R. A. (N. S.) 79, and in 14 Neg. & G. Cas. Anno. 812. Questions as to negligence are for the jury: 130 Ga. 83, 86, and cit. In the plea of the bank and in the exceptions to the direction of a verdict it was contended that, the bank being an innocent party, and the plaintiff having put it in the power of Tapp to do wrong, the equitable rule, that where one of two innocent persons must suffer, he who made the act possible should suffer the loss, was applicable. It was further contended that in view of the payment of $100 on the note, the plaintiff was not entitled to recover the full amount of $1,000.
    _ In the brief for the defendant in error the citations were: 81 Ga. 597, 600; 22 L. E. A. (N. S.) 251 (6), 253; 100 Mass. 376 (97 Am. Dec. 105); 171 Mass. 516 (41 L. E. A. 617, 68 Am. St. E. 446, 51 N. E. 9); L. E., 1 C. P. Div. 678-687; 5 H. L. Gas. 389; 5 Am. & Eng. Ann. Cas. 771; 1 K. B. (1908) 13; 16 Q. B. 560; 126 N. Y. 318 (12 L. E. A. 791, 22 Am. St. E. 821, 27 N. E. 371); 94 Ya. 265 (26 S. E. 826; 73 N. Y. 424 (29 Am. E. 175); 46 Ohio St. 512 (6 L. E. A. 625, 15 Am. St. E. 655, 22 N. E. 866); 76 Am. St. E. 244 (44 Atl. 715); 101 Iowa, 530 (63 Am. St. E. 399; 70 N. W. 769; 92 Cal. 14 (14 L. E. A. 320, 27 Am. St. E. 82, 27 Pac. 1100; 102 Ga. 202 (3); 114 Am. St. E. 595, s. c. 77 N. E. 693; 12 L. E. A. 791 (1) ; 61 Am. D. 731; 91 N. Y. 74; 65 111. 69; 84 N. Y. 209.

      Eldridge Cutts, Rogers & Rogers, for plaintiff in error.

      Quincey & Rice, contra.
   Bloodworth, J.

The court did not err in directing a verdict for the plaintiff nor in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Luke, J. concur.


text:
    11424.
    DAVIS et al., executors, v. ALFORD.
    Decided October 5, 1920.
    1. A ground of the motion for a new trial in which it is alleged that the court erred in overruling a motion to exclude certain testimony set out, and which states, as the ground of the motion to exclude the testimony, that “ movants contended that it affirmatively appeared from the evidence ” that the witness “ was the agent of . . the plaintiff,” etc., but which does not set out any evidence from which that fact appeared, is incomplete and will not be considered.
    2. A new trial is not required by any of the exceptions relating to the charge of the court.
    3. A verdict supported by evidence and approved by the trial judge will not be disturbed by this court because of conflicting evidence.
    Rehearing denied November 9, 1920.
    Complaint; from Upson superior'court — Judge Searcy. February 11, 1920.
    The executors of Lizzie T. Hannah, deceased, were sued upon an alleged contract of the decedent to compensate the plaintiff by will for services in waiting on and caring for her during the remainder of her life. The plaintiffs allegations appear in the reporter’s statement in 21 Ga. App. 821. This court held that a cause of action was stated; a subsequent trial resulted in a verdict for the plaintiff, the defendants moved for a new trial, the motion was overruled, and they excepted.

      R. B. Blackburn, J. R. Davis, Redding & Lester, for plaintiffs in error.

      W. Y. Allen, Little, Powell, Smith & Goldstein, contra.
   Bloodworth, J.

1. In ground 2 of the amendment to the motion for a new trial it is alleged that the court erred in overruling a motion of the defendants to exclude certain testimony of Leon T. Alford, for the plaintiff, as to conversations between himself and Mrs. Lizzie T. Hannah; and the ground of the motion to exclude this testimony is stated as follows: “Movants contended that it affirmatively > appeared from the evidence that Mrs. Lizzie T. Hannah was dead, and that Leon T. Alford, the witness, was the agent of his mother, Mrs. Maymie T. Alford, who was the plaintiff in the case and a party at interest, and, the principal being incompetent to testify, the agent, Leon T. Alford, would also be an incompetent witness concerning the subject-matter to which he testified.” There is no evidence incorporated in this ground of the motion to support the contention that Leon T. Alford was the agent of his mother in this transaction. “ Under repeated rulings of this court and of the Supreme Court, a special ground of a motion for a new trial must be complete within itself, and will not be considered when a reference to the brief of evidence, or to some portion of the record, is necessary to enable this court to understand the assignment of error.” Holliday v. State, 23 Ga. App. 400 (2) (98 S. E. 386). Applying the jirinciple announced above, ground 2 of the amendment to the motion for a new trial presents nothing for the consideration of this court. *

2. When all the facts and circumstances of the case and the entire charge of the court are considered, none of the grounds of the motion for a new trial which complain of errors in excerpts from the charge, and none which complain of the failure to give certain requested charges, show reversible error.

3. When this case was -first before this court (21 Ga. App. 820, 95 S. E. 313), it was held that the petition set forth a cause, of action; and while the evidence is conflicting, a jury by its finding has said that there is evidence to support the allegations of the petition; and, that finding- having been approved by the trial judge, this court will not disturb the verdict.

Judgment affirmed.

Broyles, C. J., and Luke, J. concur.


text:
    11428.
    Delpheon Company v. Crankshaw.
   Bloodworth, J.

1. This court not being fully convinced that this case was appealed for delay only, the motion that the plaintiff in error be taxed ten per cent, damages under § 6213 of the Civil Code of 1910 is refused.

2. “An assignment of error upon the refusal of the court to award a nonsuit will not be considered, where thereafter the case proceeded to a verdict in favor of the plaintiff, and the defendant’s motion for a new trial, to the overruling of which exception is taken, includes the ground that the verdict was contrary to the evidence and without evidence to support it.” Wakefield v. Lee, 18 Ga. App. 648 (1) (90 S. E. 224). See Buchanan v. James, 134 Ga. 475 (3) (68 S. E. 72), and cit.

3. The fact that the evidence in this case was not reported in “ shorthand” is no reason why a new trial should be granted. There is no law that makes the stenographic reporting of civil cases compulsory, or provides that a failure so to report the evidence shall be cause for a new trial.

Decided October 5, 1920.

Complaint; from Fulton superior court—-Judge Ellis. January 15, 1920.

Application for certiorari was denied by the Supreme Court. .

Douglas & Douglas, for plaintiff in error.

Winfield Payne Jones, contra.

4. “ Where there is an attempt to bind a person by the act of an agent, it is necessary for the person asserting the agency to establish it. After a prima facie ease is made, the declarations of the agent himself, made accompanying the transaction or during the execution or settlement of it, are admissible in corroboration of the prior evidence tending to establish the agency.” White Sewing Machine Co. v. Horkan, 7 Ga. App. 283 (3) (66 S. E. 811). Applying this principle to the evidence in this ease, there was no error in admitting the evidence of which complaint is made in the 6th ground of the motion for new trial.

5. “The grounds of the motion for a new trial that the court erred in allowing in evidence certain documentary evidence can not be considered, since the evidence referred to is not set forth either literally or in substance in the motion or in an exhibit thereto.” Arnold v. Mitchell, 23 Ga. App. 658 (1) (99 S. E. 135), and cit. This ruling disposes of ground 7 of the motion for a new trial.

6. When considered in connection with the pleadings and the facts of the case, and in the light of the remainder of the charge, no excerpt therefrom of which complaint is made contains error that would require the grant of a new trial.

7. There is some evidence to support the verdict.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


text:
    11435.
    Hampton v. Quitman Manufacturing Company.
    Decided October 5, 1920.
    Action for damages; from Brooks superior court — Judge Thomas. March 8, 1920.
    The action was for injury to a cotton-mill employee’s hand, which it was alleged was caught by the teeth of a revolving cylinder of a carding machine when he was attempting to remove waste cotton. In the demurrer it was contended that under the allegations of the petition the negligence of a fellow servant was the proximate cause of the injury, and that the injury was a result of one of the ordinary risks of employment assumed by the plaintiff. From the petition it appears that he was employed for the purpose of grinding carding machines and was directed by the foreman to clean off with his hands the waste cotton hanging or accumulated in front of the cylinder mentioned and of a door opening to that cylinder while the cylinder was revolving. The cylinder was enclosed in a metal case with a door in front-which opened from the top by means of latches; and, just above the door, waste cotton was separated from the cotton carried around by the cylinder, and was “ supposed' to be wound ” upon a scavenger roll-stick located just above and a little in front of this door, in order to keep the waste cotton from falling and hanging down in front of the door, but there was no such stick on the machine, and the waste cotton from the cylinder was allowed to hang, fall, and accumulate in front of the door and completely hide the door from view, thus rendering it impossible for a person in front of the machine to ascertain whether the door was up or down. The plaintiff knew that the machine was not provided with such a stick, but he had no experience „in the operation of this particular kind of machinery and had been only about seven or ten days at work in taking down waste cotton with his hands and grinding and cleaning the cylinder in the manner described, and did not know that such an appliance was necessary to the safe operation of the machine in the manner in which he was required to work upon it, and did not know the danger attendant upon the work. Suction created by the rapid revolving of the cylinder tended to draw into the enclosure and into the teeth of the cylinder one’s hand when in close proximity to it in removing the waste cotton. The door to the enclosure had been opened by a fellow servant, but the plaintiff did not know this, the opening being hidden from view by waste cotton, when he reached forward to remove the waste and the teeth of the cylinder caught his hand. It is alleged that the defendant was negligent in failing to provide the machine with a scavenger roll-stick, and in the direction to him. to remove the waste cotton with his hand while the cylinder was running, and in failing to warn him of the dangers attendant upon the operation of the machine. It is alleged that although the door mentioned was left open by a fellow servant, the plaintiff would not have been injured if the defendant had not been negligent as stated above; and that the defects and dangers mentioned were latent and not discoverable by the plaintiff by the exercise of ordinary care on his part, and his opportunities for knowing of them were not equal to those of the ■ defendant, which knew of them or could have known of them by the exercise of such care.
   Bloodworth, J.

The judge properly sustained the demurrer to the petition in this case.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.

J. J. Hill, for plaintiff,

cited: 1 Ga. App. 260 (8); 15 Ga. App. 758 (4); 21 Ga. App. 340 (3), 349; 22 Ga. App. 26, 180 (2); 125 Ga. 576; 98 Ga. 660; 16 Ga. App. 54 (3); 13 Ga. App. 799 (6).

Bennet & Harrell, contra,

cited; Civil Code (1910), § 3129; 127 Ga. 404-6; 123 Ga. 35; 2 Ga. App. 53, 57; 7 Ga. App. 642 (2); 17 Ga. App. 684; 19 Ga. App. 133; 134 Ga. 712; 23 Ga. App. 408; 21 Ga. App. 558; 95 Ga. 15; 139 Ga. 198; 5 Ga. App. 777, 778; 83 Ga. 343; 126 Ga. 667, 670; 7 Ga. App. 268, 584; 10 Ga. App. 175; 23 Ga. App. 334.


text:
    11493.
    Dunbar v. Hines, director-general.
    Decided October 5, 1920.
    (Certiorari was granted by the Supreme Court.)
    Action for damages; from city court of Macon—Judge Guerry. April 9, 1920.
    The action was for injuries to a switchman from a wooden substance which struck his head when he was standing on the ladder attached to the side of a freight-car, holding the ladder with one hand and signaling with the other to the engineer who was switching the car. In one count of his petition he alleged: that the substance that struck him fell or was blown by the wind from the top of the car, that it was not a part of the car and should not have been there, and he did not know it was there and had no reason to anticipate it’s presence there, and that the agents and employees of the defendant (the director-general of railroads) were negligent in placing it on the top of the car, in allowing it to remain there while operating the car, and in doing this with knowledge that by the movement of the train or the force of the wind it might be thrown or blown from the car and fall upon some employee using the ladder or standing at the side of the track. In another count it was alleged: that the substance that struck the plaintiff was a part of a decayed and frail building of the defendant, and was blown by the wind and carried over the top of the freight-car; that the building was used for the purpose of housing engines not in service, and was more than 30 years old, was weakly constructed, and had become weaker in the course of time, that the roofing was of inferior quality and the roof was blown off by the wind, the weatherboarding was rotten, and a wind blowing 30 or 35 miles an hour — a velocity not unusual or unprecedented — was sufficient to take off parts of the roof and scantlings and carry them over the car and hurl them against the plaintiff; and the defendant knew or in the exercise of ordinary care should have known of the rotten and frail condition of the building; that at the time of the injury the wind was blowing with a velocity of about 31 and not more than 34 miles an hour and was not sufficiently-powerful to blow down or unroof a properly constructed building; and that the defendant was negligent in maintaining such a building, and in allowing it to remain upon the defendant’s yards, adjacent to the railroad-tracks, after it had become so weak that it could be shaken to pieces by a wind blowing with the velocity stated above. The court sustained a general demurrer to each count and dismissed the petition.
   Broyles, C. J.

Neither count of the plaintiff’s petition set forth a cause of action, and the court did not err in sustaining the general demurrer to each count and to the petition as a whole, and in dismissing the action.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Robert L. Berner,

for plaintiff, cited: On first count and as to presumption: Ga. L. 1909, p. 160 (Park’s Ann. Code, § 2782); 58 Ga. 485, 489; Id. 108; 80 Ga. 521; 85 Ga. 473; 89 Ga. 602 (6); 95 Ga. 685-6; 9 Ga. App. 154; 11 Ga. App. 167. On second count: 105 Ga. 543, 546; 5 Ga. App. 219. As to the theory of accident, etc.: 1 Thomp. Neg. 14, 70, 74; 50 Ga. 509, 511; 2 Ga. 349; 25 Ga. 26; 97 Ga. 777, 779; 7 Ga. App. 135-136; 4 Ga. App. 104; 59 Ga. 544; 143 Ga. 26; 6 Ga. App. 306; 3 Ga. App. 161; 126 Ga. 447; 118 Mass. 251-259.

Harris, Harris & Witman, for defendant,

cited: As to pleading: Civil Code (1910), §§ 5538; 112 Ga. 777 (2); 147 Ga. 438; 122 Ga. 695; Civil Code, §§ 2782, 3131; 117 Ga. 47, 53; 83 Ga. 70; 7 Ga. App. 268, 271; 11 Ga. App. 836; 18 Ga. App. 117; 19 Ga. App. 521; 20 Ga. App. 391; 22 Ga. App. 406; 5 Ga. App. 454, 697; 120 Ga. 1030. As to proximate cause, accident, etc.: 22 Ruling Case Law, § 11, p. 124; Civil Code, § 4509; 103 Ga. 847; 93 Ga. 570, 573; 86 Ga. 231, 388; 85 Ga. 507; 81 Ga. 694; 6 Ga. App. 459; Add. Torts, § 6; Cooley, Torts, 69; 1 Beven, Neg. 84; 2 El. & B. 490; 10 Wall. 176; 71 So. 685; 14 Am. Rep. 13; 12 Ga. App. 286, 29Q; 23 Ga. App. 753; 116 Ga. 152; 124 Fed. 130; 20 L. R. A. (N. S.), note, 92, 95, 96; 3 LaBatt, M. & S. 2762.


text:
    11594.
    PAYNE v. CHAL-MAX MOTOR COMPANY.
    Decided October 5, 1920.
    1. An implied warranty against defects in the thing sold is excluded by a provision in the written contract of sale that the vendor does not warrant the property except as to title.
    2. The defendant having appeared and made defense, it was proper to overrule the motion to dismiss the declaration in attachment.
    Attachment; from city court of Albany — Judge Clayton Jones. May 11, 1920.

      Claude Payton, for plaintiff in error,
    cited: 142 Ga. 836; 17 Ga. App. 575; Civil Code (1910), § 4135, 4136, 4137; 12 Ga. App. 259; 11 Ga. App. 302; 134 Ga. 288; 76 Ga. 629; 100 Ga. 588; Civil Code (1910), § 5103.

      Lippitt & Burt, contra,
    cited: 146 Ga. 46; 142 Ga. 836; 12 Ga. App. -259; Civil Code (1910), § -5121; 134 Ga. 544, 549; 143 Ga. 380.
   Bloodworth, J.

Mrs. Lois Payne bought an automobile, signed a contract of purchase, and gave a series of notes. On default of the payment of a portion of the notes an attachment for the balance of the purchase-price was issued and levied, and a declaration was filed. Pleas ^tting up that the automobile was defective and not suited to the purpose intended were amended so as to show that the defendant elected “to rely on the statements in her answer of implied warranty” only. The contract contained the following: “The vendor does not warrant said property except that the title to same is in the vendor and free from incumbrance.” This is a definite and complete contract between the parties, and amounts to an express refusal to make any warranty except as to the title to the property and that it was not incumbered, and this refusal to warrant is so broad that it extended to and covered any implied warranty, and no defect in the automobile for which the notes were given could be pleaded by way of defense. The court properly sustained the motion to strike the plea. Harrell v. Holman, 21 Ga. App. 159 (93 S. E. 1021), and cases cited. See, in this connection, Mansor v. Zemurray, 22 Ga. App. 441 (96 S. E. 233).

The defendant having appeared and made defense, the court properly overruled the motion to dismiss the declaration in attachment. “It is well settled that in a suit by attachment for purchase-money, where the defendant has voluntarily appeared and pleaded to the merits of the case, the plaintiff is entitled to proceed for a verdict and general judgment, even though the attachment be subject to dismissal.” Flagg v. Hitchcock, 143 Ga. 380 (3) (85 S. E. 125). See also Civil Code 1910), § 5121; McDonald v. Rimes, 137 Ga. 732 (1) (74 S. E. 266).

Judgment affirmed.

Broyles, C, J., and Luke, J. concur.


author: Luke, J.

text:
    11599.
    Von Zonneveld & Philippo v. Shuptrine Company.
    Decided October 5, 1920.
    Complaint; from city court of Savannah — Judge Kourke. January 27, 1920.
    Yon Zonneveld Brothers & Philippo, of Sassenheim, Holland, sued Shuptrine Company, of Savannah, Georgia, alleging that the defendant was indebted to them in the sum of $287.26, by reason of the facts that on November 10, 1916, the defendant .•signed an order to them for the shipment of certain goods specified therein, which order was attached to the petition, and that the plaintiffs complied with the order and shipped the articles named therein in accordance with its terms, bnt that the defendant failed and refused to live up to the contract, and the said articles were disposed of by the transportation company — the Ocean Steamship Company—for charges, “with the result set out in attached statement” showing an indebtedness in the sum sued for. These allegations were denied in the defendant’s answer.
   Luke, J.

The evidence for the plaintiff did not prove the ease as laid in the petition. A nonsuit was properly granted.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.

On the grounds that “the plaintiff had made no case against the defendant, and had not proved the account was correct, or that the goods were received,” the defendant, at the conclusion of the plaintiffs’ evidence at the trial, asked for a nonsuit, which was-granted; and the plaintiffs excepted. The evidence consisted of the order for the goods, the testimony of an employee of the plaintiffs, and a letter of the defendant’s attorney to the plaintiff’s attorney. The account attached to the petition was for goods described in two items, dated respectively August 15 and September 5, 1917, one for “Boman bulbs, $168.74,” and the other for “Holland bulbs, $283.91;” there were certain credits on the account, and the balance shown by it was $287.26. The order was dated November 10, 1916. It was on a printed form in which the plaintiffs were designated as “Bulb growers,” and was for “bulbs and plants,” designated as “Boman hyacinths,” “Narcissus,” etc., in specified quantities; and under the heading “ Price ” several items were followed by amounts ranging from $4 to $25, other items by no amount, and others by amounts without the dollar mark, thus: “2000 Boman Hyacinths 12/15, open 30,” “3000 Darwin Tulips, same color as last year, 10.” The employee who signed the order testified: “ I do not know whether the price on there is so much per thousand or not. . . As to the price, I know nothing of that. There is a price on there, but I only gave the order as per instructions left with me; the price there looks to be so much per thousand, but I don’t know whether it is that or not.” One of the provisions of the order is that “All goods travel 'at purchaser’s risk and expense from our [the plaintiffs’] stores.” The letter mentioned above is referred to in the bill of exceptions as follows: “By agreement the testimony of W. F. Lightbourne, an employee of the Ocean Steamship Company at Savannah, was shown by the attached letter marked Exhibit A.” The letter says: “I will admit that Mr. W. E. Lightbourne will testify that the sale of the bulbs involved in the above-stated case [‘Van Zonneveld v. Sbuptrine’] netted $25.00.”

H. P. Cobb, Gignilliat & O'Neal, for plaintiffs.

Shelby Myrick, for defendant.


text:
    11266.
    Williams & Brother v. King Hardware Company.
    Decided October 13, 1920.
    Complaint—appeal; from Cobb superior court — Judge Wright presiding. December 18, 1919.
    Payment of the account sued on to an agent or traveling salesman of the plaintiff — the King Hardware Company —was the defense set up in this case. Refusal to admit in evidence a receipt offered by the defendants and the direction of a verdict for the plaintiff are complained of in the motion for a new trial, the overruling of which is assigned as error.
    At the trial the plaintiff’s “credit man and head bookkeeper” testified, that the account sued on was correct, due, and unpaid; that he did not know whether it had been paid to any traveling salesman of the plaintiff, but no salesman had “reported having collected it,” and the money had never reached the plaintiff’s office; that the plaintiff had several traveling salesmen, and the traveling salesman for the territory in which was Marietta, Georgia, where the defendants had their place of business, was Mr. Woodward; and Mr. Howell Kitchen was also authorized to take orders in Marietta. J. R: Williams, of the firm of J. E. Williams & Brother, the defendants, testified that he was in charge of the business of the firm at the time of the purchase of the goods included in the account sued on, and bought them from a traveling salesman of the plaintiff, and that he paid the account to a man who represented himself to be a salesman of the plaintiff, but whom he could not see, as he was blind. As to the circumstances under which the payment was made he testified: “Some gentleman called at my store, saying he was the representative of the King Hardware Company and wanted to sell me a bill of goods. I told him. I did not wish to buy any that day. I could detect that his voice was different from the salesman who,had called on me in times past for the King Hardware Company, and remarked to the gentleman that he was not the same man who had been calling on me. He said, ‘No,’ and told me what his name was, but I do not recollect it. . . He reminded me that I owed the King Hardware Company a bill and that the house had asked him to collect the same. I got out my invoices and statements, and he had with him some papers, and he and I checked over the account, and his statements and mine were alike. Being blind and unable to see, I asked him to call out the items on his papers, and they were as follows ” (the .witness here stated the items ■ of the account sued on). “ I recognized the items as he called them out from the papers, as being the same goods that I had previously bought from the King Hardware Company, and the whole thing came to $59.18” (the amount of the account sued on). “I paid him that amount of money. He gave me this receipt, which I have kept ever since ” (referring to the receipt mentioned above, which was for $59.18, and was signed, “King Hardware Company, Atlanta, Ga.”). The witness further testified that the salesman to whom he paid the money was not Woodward or Howell Kitchen. Woodward testified that he did not receive the money, and that although he did not know of any salesman of the plaintiff who came into his territory besides himself and 'Kitchen, it was possible for some other -of the plaintiff’s salesmen to have done so, and that the plaintiff sent office men ont to towns near Atlanta to collect accounts and take orders for goods. The witness first mentioned was recalled and testified that he did not recognize the receipt as being in the handwriting of any salesman of the plaintiff; also: "When we in the office in Atlanta give an account against a customer to a salesman to collect, we do not itemize the account, but give him a plain statement of the same, simply showing the date and amount of the invoice or invoices, and the statement which we give to salesmen for collection is not itemized; the individual items covered in the account are never shown; . . they are always itemized when we place them out in the hands of attorneys or our collecting agency for collection.” "Our salesmen do collect accounts for us frequently, and they are authorized to collect for the company. . . It is true that we frequently send men from the office — some of our office force— out to near-by points around Atlanta, both to collect accounts and solicit orders for goods. I think we have sent such parties to Marietta.”
   Jenkins, P. J.

1. “ Declarations of an alleged agent are not by themselves admissible to prove agency, but the fact of agency' may be established by proof of circumstances, apparent relations, and the conduct of the parties; and where the extraneous circumstances,! independently of and without regard to the declarations of the agent himself, clearly tend to establish the fact of his agency, his declarations, though inadmissible if standing alone, may, as a part of the res gestee of the transaction, be considered.” Sherrod v. Springfield Baptist Church, 21 Ga. App. 200 (2) (93 S. E. 1009); Abel v. Jarratt, 100 Ga. 732 (28 S. E. 453); Ham v. Brown, 2 Ga. App. 71 (58 S. E. 316).

2. The plaintiff company having admitted that it was in the habit of permitting its traveling salesmen to collect money due the company on its accounts, and the testimony of the defendant, unobjected to, showing that the person to whom the payment was made not only represented himself to be the agent of the plaintiff, but correctly read over to the defendant the various items with the price of each for which the money was due, the bona tides of the receipt tendered, despite the evidence of the' plaintiff tending to show its fraudulent character, was a question of fact for the jury, and the judge erred in excluding it from their consideration and directing a verdict for the plaintiff.

Judgment reversed.

Stephens and Smith, JJ., concur.

Clay & Giles, for plaintiffs in error.