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

text:
    11479.
    CLARK v. LONG, for use, etc.
    Decided November 10, 1920.
    Rehearing denied January 20, 1921.
    Certiorari; from Fulton superior court — Judge Bell. March 20, 1920.

      Madison Richardson, for plaintiff in error.

      Walter A. Sims, contra.
   Jenkins, P. J.

1. A tenant cannot, in a suit against him for rent, dispute the title of his landlord with whom he has actually contracted as such, even though it might have been then and there known by each of the parties to the agreement that the title to the premises was in fact in another. Strickland v. Styles, 107 Ga. 308 (3) (33 S. E. 85) ; Spence v. Wilson, 102 Ga. 762 (29 S. E. 713) ; Hawkins v. Tanner, 129 Ga. 497 (59 S. E. 225). See also Civil Code (1910), § 3609 (3).

2. Where a suit for rent is instituted by the party with whom the actual contract of tenancy was made, it is permissible for him to amend the petition by setting out the name of the true owner for whose use the suit is brought. The rule would be otherwise, and such an amendment not be permissible, where the plaintiff has no right of action in himself; as where the contract was made by the plaintiff not in his own behalf as landlord, but merely as an agent of the true owner. State v. Bank of Quitman, 117 Ga. 849 (45 S. E. 236) ; Terrell v. Stevenson, 97 Ga. 570 (1) (25 S. E. 352) ; Richmond & Danville R. Co. v. Bedell, 88 Ga. 591 (15 S. E. 676). Since the evidence authorized the conclusion that the plaintiff contracted with the tenant in his individual name as landlord, and was not acting merely as the agent of his wife, the suit was maintainable as originally brought; nor was its true character, so far as the defendant is concerned, in any wise altered by the allowance of the amendment.

3. The judgment of the municipal court was authorized by the evidence, and the judge of the superior court did not err in overruling the certiorari. Judgment affirmed.

Stephens and Smith, JJ., concur.

ON MOTION FOR REHEARING.

Jenkins, P. J.

Counsel for the plaintiff in error files his motion for rehearing in this case, the contentions being in substance as follows: (1) that the evidence does not authorize the conclusion that Long acted in his individual capacity as landlord, in entering into the rent contract with the tenant Clark; and (2) that, the trial judge having ruled that the suit as originally instituted in the plaintiffs individual name was not maintainable, and Long having submitted to that ruling and having sought to conform thereto by amending his suit so that it would be 'maintained in his name for the use of the true owner, he thereby became bound by the ruling even if erroneous, and could not be heard to complain of it here, even had exceptions been entered (as was not the case) upon the ruling to which he had thus submitted. He cites as authority for this position the following cases: Rome R. Co. v. Thompson, 101 Ga. 26 (11), 32 (28 S. E. 429); Glover v. Savannah &c. Ry. Co., 107 Ga. 34 (3) (32 S. E. 876); Morris v. Wofford, 114 Ga. 935 (1) (41 S. E. 56); Waller v. Clarke, 132 Ga. 830 (3), 833 (64 S. E. 1096); Central Ry. Co. v. Waldo, 6 Ga. App. 840 (1), 842 (65 S. E. 1098).

We think that the holding of this court to the effect that “the evidence authorized the conclusion that the plaintiff contracted with the tenant in his individual name as landlord” is amply authorized by the evidence shown in the record. As is pointed out by counsel in their motion for a rehearing, and as was intimated by this court in what was said in the first paragraph of the decision, we think it plainly apparent that the actual title to the premises was in the wife of the plaintiff, and it also seems clear that the defendant Clark was aware that such was the fact. It does not appear, however, that the contract involved in the litigation was entered into for her and in her name by Long as agent. On the contrary, the evidence not only authorizes the conclusion, but seems to show, that Long, acting for himself as landlord, rented the land to Clark as tenant. In his evidence he speaks of what was offered to him as rent and of what he rented it for. In one place he testified: “My father willed the land to my wife, and she owns it. My wife authorized me to rent it. I was to settle with her and pay her the proceeds of what I got out of it.” The fact that he swears that he had authority to rent it is not inconsistent with the idea'that he had authority to rent it, and did actually rent it, in his own name.

It is well settled that where a party submits to a ruling on pleadings by filing an amendment to meet an objection raised thereto, he waives his right to complain that the amendment was not necessary Glover v. Central Ry. Co., supra; Atlantic Coast Line R. Co. v. Hart Lumber Co., 2 Ga. App. 88 (58 S. E. 316); and this is true even though the party making such an amendment may enter specific exceptions to the judgment which rendered the amendment necessary. We do not see, however, how this principle of law could aid the defendant in the case before us. As we view it, it was within the rights of the plaintiff to maintain the suit for rent in his own name as landlord just as originally brought, on the theory that the contract had been thus entered into, or it was his privilege to amend the petition by suing in his name for the use of the actual owner of the land. Since the suit was maintainable as originally brought, he should not have been required to thus amend, but since such an amendment, though unnecessary, was proper, and since he proved his case as finally laid, it would seem to be altogether immaterial whether the amendment was voluntarily made or not. Had the amendment not only been unnecessary but improper, or had the plaintiff failed to prove his petition as amended, he could not thereafter, either with or without such a specific exception, be heard to complain of the ruling which required him to amend and which he actually submitted to. In other words, were the plaintiff’s case dependent upon his attacking the order of the judge to which he has submitted,• his case would fail; but since the amendment, though unnecessary, was proper, and since he is able to stand upon his case 'as we find it, it is not necessary for him to run counter to the rule of law which the defendant invokes.'

Rehearing denied.

Stephens and Hill, JJ., concur.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    11312, 11313.
    REPUBLIC IRON & STEEL COMPANY v. NORRIS; and vice versa.

   Jenkins, P. J.

1. Where one’s property is taken, injured, or put in jeopardy by another’s neglect of duty imposed by- contract, or by his wrongful act, any necessary expenses incurred for its recovery, repair, or protection are elements of the injury. 1 Suth. Damages, 106, 140. Hie plaintiff in this case having alleged that the items of damage enumerated were incurred by him on account of the bad faith and fraudulent conduct of defendant, the petition set out a good cause of action. Traders Insurance Co. v. Mann, 118 Ga. 381, 384 (45 S. E. 426).

2. A tort is a legal wrong committed upon the person or property of another independently of contract. Such a wrong may, however, arise from al violation of some private obligation, by which damages accrue to the individual; and if the breach complained of is not mere neglect of a duty expressly provided for by the terms of the contract itself, the complaining party may elect as to his remedy, and rely either upon his right under the contract or proceed for damages as for a tort. Payne v. Watters, 9 Ga. App. 265 (70 S. E. 1114) ; Fain v. Wilkerson, 22 Ga. App. 193 (95 S. E. 752). In the instant case, as the alleged fraudulent acts of the defendant did not arise out of a mere breach of duty expressly provided for by the contract itself, an action in tort was permissible; and such was the clear intent and purpose of the action even as originally brought.

Decided November 11, 1920.

Complaint; from Bartow superior court—'Judge Tarver. December 20, 1919.

Norris & Hall sued Republic Iron & Steel Company, alleging that the defendant leased from the plaintiffs certain land for the purpose of mining manganese oie, agreeing to “mine and remove from the leased premises all of the commercial manganese and manganiferous ore that is in, on, or under said leased premises,” and “to pay lessors a royalty of $1.00 per ton of 2,240 pounds for all manganese and manganiferous ore mined and removed from said premises.” The lease contained a clause stating that if there should be a disagreement as to when all the said ore had been removed, the question should be submitted to arbitration. It is alleged that the said company, after having fraudulently covered up and concealed certain remaining portions of the ore, represented to the plaintiffs that all the ore had been exhausted; that the plaintiffs did not agree with this statement, and an arbitration of the question was entered into as provided by the terms of the lease, and the arbitrators made an award in favor of the plaintiffs, the finding in effect being that all the ore had not been removed. The plaintiffs seek to recover the amount of certain expenditures incident to the arbitration and alleged to have been necessary, including fees of the arbitrators, stenographer’s fees, attorney’s fees, and a sum expended in removing certain dirt for the purpose of uncovering, for inspection by the arbitrators, ore which it was alleged had been fraudulently concealed by the defendant. On the trial the plaintiffs, apparently without objection, amended the petition by amplifying the allegations to the effect that defendant wilfully ’and fraudulently blew up the mines and covered up the ore, preparatory to bringing on the arbitration. The defendant demurred on the grounds, among others, that (1) no cause of action is set out; (2) none of the arbitration expenses are recoverable, because the petition shows that the defendant was merely insisting on its legal rights in demanding arbitration; (3) the arbitrators having made no award in regard to arbitration expenses, their failure to do so amounted to an adjudication against the right to recover any such expense; and (4) it appears from the petition that before the arbitration the plaintiffs had notice of the defendant’s alleged fraud in covering up the ore, and were not deceived or misled by it. The demurrer was overruled as to the sum expended in removing the dirt in order to permit the inspection of the ore by the arbitrators, but was sustained as to the other items. In the main bill of exceptions the defendant excepts to the overruling of the demurrer as to the expense of removing the dirt; and by cross-bill the plaintiffs except to the sustaining of the demurrer as to the other items.

3. While, under a statutory arbitration, the arbitrators should determine all matters in controversy pertinent to the issues submitted. (Civil Code of 1910, § 5031), including the matter of costs, and while it is true that where, under a statutory arbitration, no award of costs has been made, a subsequent action cannot be maintained therefor by the party in whose favor the issue has been adjudicated (3 Cyc.'725), still arbitrators are not permitted to exceed their authority and are limited to an adjudication of such matters as legally and properly devolve upon them for determination. Civil Code (1910), § 5022. Thus, where the arbitration is not statutory but is had under the specific terms of an agreement authorizing the determination of one single and particular matter, tlie arbitrators were limited to a determination of the one question thus submitted; and, not having authority to award costs or other expenses growing out of the submission, the judgment rendered by the arbitrators would not preclude a subsequent action therefor.

4. Under the rules stated above, the court did not err in overruling the demurrer as to the last item of damages sued for, but did err in sustaining the demurrer to the other items embraced in the suit.

Judgment on main bill of exceptions affirmed; on cross-bill reversed.

Stephens and Smith, JJ., concur.

Maddox, McCamy & Shumate, for Republic Iron and Steel Company.

Neel, Finley & Neel, contra.


author: Broyles, C. J.

text:
    11702.
    Moran v. The State.
    Decided November 9, 1920.
    Rehearing denied December 15, 1920.
    Conviction of shooting at another; from Crawford superior court — Judge Mathews. June 16. 1920.

      John R. Cooper, W. O. Cooper Jr., for plaintiff in error.

      Charles E. Garrett, solicitor-general, contra.
   Broyles, C. J.

The evidence amply authorized the verdict, and none of the special grounds of the motion for a new trial requires a reversal ■of the judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11462.
    Washington & Lincolnton Railroad Co. v. Powell.
   Jenkins, P. J.

The railroad company was sued for the loss of one bale out of a shipment of 100 bales of cotton of the “ average ” weight of 525 pounds and of the value of $157.50. It demurred on the ground that the plaintiff’s petition failed to specify which bale was lost or the weight of that bale. The demurrer was overruled. The defendant’s answer denied the alleged loss. The case was referred to an auditor, who found in favor of the defendant, exceptions were taken to his finding, and the loss by the defendant of the bale of cotton . was contested on the trial of the exceptions. There was no dispute in the testimony as to what was the “ average ” weight of the bales shipped, or as to the price. It was agreed in open court that the jury might render a general verdict. The verdict was, “ We, the jury, find against the auditor.” Upon this verdict a judgment was entered in favor of the plaintiff, for the amount sued for. The bill of exceptions recites the filing of defendant’s demurrer and states that exceptions pendente lite to its overruling were entered, and proceeds to assign error upon the action of the judge in overruling the demurrer, but does not assign error on the exceptions taken pendente lite as thus mentioned. There was a motion to set aside the judgment, and also a motion for a new trial, and exception is taken to the overruling of each motion. The plaintiff in error contends: (1) that the verdict was unauthorized by the evidence; (2) that the cotton was not sufficiently identified; and (3) that the verdict was insufficient to afford a basis for the judgment entered. Held-.

1. Where the losing party makes a motion for new trial and also a motion to set aside the verdict and judgment, both of which are overruled, he may, by separate bills of exceptions, bring to this court the questions thus raised, although both rulings might have been excepted to in one bill. It is the better practice, as was here done, to embody in one bill of exceptions all questions which may be legally raised therein. Hay v. Collins, 118 Ga. 243 (44 S. E. 1002).

Decided November 11, 1920.

Action for 'damages; from Lincoln superior court—Judge Walker. March 25, 1920.

I. T. Irwin Jr., W. A. Slaton, for plaintiff in error.

Clement E. Sutton, contra.

2. The evidence was sufficient to authorize the finding that the defendant received for shipment and failed to account for the bale of cotton sued for.

3. Error not being assigned upon the exceptions taken pendente lite (see Sovereign Camp of Woodmen of the World v. Warner, ante, 449; Ponder v. State, ante, 766), the case stands as if no demurrer to the petition had been filed, and since the petition sets forth a cause of action and the proof sustains the charge as made by the plaintiff and denied by the defendant, it was not improper to try the case on the issue thus made. Southern R. Co. v. Barfield, 115 Ga. 724 (42 S. E. 95); Clanton v. Rowan, 23 Ga. App. 355 (2) (98 S. E. 236). See also Gordon v. Atlantic Coast Line R. Co., 7 Ga. App. 354 (2) (66 S. E. 988).

4. Inasmuch as counsel had agreed that a general verdict might be rendered, and since there was no dispute as to the value of the cotton or as to what constituted the average weight of the entire shipment, the judgment was the only one that could have been framed in accordance with the true intendment of the verdict, and it was therefore permissible. Manget Co. v. White Crown Fruit Jar Co., 20 Ga. App. 339 (93 S.E. 307).

Judgment affirmed.

Stephens and Smith, JJ., concur.


author: Stephens, J. Smith, J.,

text:
    11465.
    TOWNSEND v. WILSON.
    Decided November 11, 1920.
    Appeal; from Johnson, superior court—Judge Kent, March 16, 1920.
   Stephens, J.

Where, on the hearing in the court of ordinary of an application-for the appointment of a guardian, the applicant consented to the appointment of another, who was then appointed by the court of ordinary, but who afterwards refused to qualify, and the ordinary by order at a subsequent term appointed a third party, the applicant could enter an appeal from the latter order to the superior court; and it was error to dismiss the appeal upon the ground that the applicant had consented to the first order appointing as guardian the person who failed to qualify.

Judgment reversed.

Jenkins, P. J., concurs. Smith, J., dissents.

Alfred Herrington Jr., for plaintiff in error.

A. L. Hatcher, contra.

Smith, J.,

dissenting. Otis Townsend applied to the ordinary of Johnson county, asking that he be appointed guardian of the person and property of the two minor children of J. A. Townsend, deceased. Citation issued regularly, and at the June term, 1919, of the court of ordinary, an order was passed, reciting that by consent of all parties, and no valid objection having been filed, Wilkins Townsend, the grandfather of said minors, was ajDpointed guardian of the person and property of said minors, upon his taking the oath of office and giving the bond required by law. Wilkins Townsend failed to qualify within the time required by law, and on July 7, 1919, at the regular July term of the court, an order was passed, reciting the former order appointing Wilkins Townsend as guardian, and that it appeared that said Wilkins Townsend had failed to qualify as such guardian within the time required by law, and further reciting that Wilkins Townsend appeared at this term and in open court renounced his said appointment and refused to qualify, whereupon Bartow Wilson, the other grandfather of the minor children, was appointed as guardian. From this last order Otis Townsend entered his appeal to the superior court, and upon the case being called for trial his appeal was dismissed.

When Otis Townsend, at the term to which his application for guardianship was returnable, appeared in open court and consented to the appointment of another person as such guardian, and such other person was then and there appointed, and when at a later term the person so appointed appeared and renounced his appointment and refused to qualify, and the ordinary thereupon in open court appointed another person as such guardian, Otis Townsend waived his right to the appointment, and, there being no caveat or objection filed by him or anyone else, the judge of the superior court did not err in dismissing the appeal.


author: Jenkins, P. J. Stephens, J.,

text:
    11469, 11470.
    CAMBRIDGE v. BACHE; and vice versa.

    Decided November 11, 1920.
    Where in the body or on the face of ail instrument agency is distinctly specified and the principal indicated, and the contract is substantially in the name of the principal, the latter and not the agent is to be taken as bound. Under such a contract the question which would govern the actual liability of the principal is whether the agent had authority to bind his principal as assumed by the terms of the instrument. Tiller v. Spradley, 39 Ga. 35; Bank of the University v. Hamilton, 78 Ga. 312. A suit on such a contract, brought against the agent, cannot be maintained in the absence of allegations to the effect that the authority thus assumed was unauthorized. The trial judge did not err in dismissing the suit on general demurrer.
    Complaint; from city court of Savannah—Judge Freeman. March 30, 1920.
    Cambridge sued Bache for an alleged, breach of the following contract: “Order for Oldsmobile. The undersigned, C. C.
    Cambridge, hereby authorizes G. Bingham Bache to have shipped for him by the Olds Motor Works, Lansing, Michigan, the following, to-wit: One Oldsmobile Model 37 Style Sedan Color Standard, for which I am to pay $2,025.00 as follows: $- cash with order, receipt of which is herein acknowledged, $825.00 cash upon the delivery of car, and one Model 37 Oldsmobile Touring Car 156457, same to be in good mechanical condition, at $1,200.00. I have read and accepted general warranty of the Olds Motor Works, printed on the back hereof, and understand that no promise, expressed or implied, other than said warranty, or embodied in this order, is binding on the Olds Motor Works, or on G. Bingham Bache, distributor. I further authorize G. Bingham Bache to furnish the following extra equipment with the car, same to be paid at the prices named and in cash upon delivery, to-wit: . . . This order is in effect when accepted by G. Bingham Bache, and thereafter is not subject to countermand or condition except by forfeiture of cash deposit as above.
    “-Salesman. “ C. C. Cambridge, Purchaser.
    “Accepted this 3rd day of Oct., 1918. G. Bingham Bache,
    “Distributor.”
    On the back of this contract or order appears a guaranty signed by the Olds Motor Works.
    The defendant demurred to the petition, on the ground, among others, that “it is shown by said petition and the exhibit attached thereto that said defendant was merely , a distributor or agent for ordering and delivering said automobile, and was not selling the same himself to said plaintiff.” The court sustained the demurrer and dismissed the petition.

      O’Byrne, Hartridge & Wright, for plaintiff.

      Hewlett & Dennis, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) Were it permissible for us to speculate on general principles as to whether in our opinion a purchaser would more likely buy a car from the manufacturer or from a local or State dealer, we might perhaps very reasonably incline to the latter proposition as being possibly the more usual and customary practice. Such speculation, however, lies beyond our sphere. This is a suit on a contract, 'and contracts must be taken' according to the language actually used, and, where unambiguous, it is the duty of courts to thus construe them. All acts of corporations are performed through agents and servants; their contracts are necessarily thus executed. The contract in this case was signed, not by. Bache, or by Bache as dealer, but by Bache as “distributor,” which term would of itself denote agency. And while this of itself, would amount to nothing more than descriptio personse, it is different where the terms of the contract clearly show for whom he was thus acting. In this case the writing would clearly seem to mean that Bache holds himself out as the distributing agent of a named manufacturer with authority to accept orders for it, and that he in such capacity is recognized by the manufacturer, but with definite limitations upon his authority to bind it by warranty. The contract shows on its face that the purchaser simply gave to the distributor of a named manufacturer an order for a car, which by the express terms of the agreement was not to be filled by the named distributor, but was to be transmitted to the manufacturer, to be executed by it.

Judgment on mam bill of exceptions affirmed; cross-bill dismissed.

Smith, J., concurs.

Stephens, J.,

dissenting. This is a suit against G. Bingham Bache, the petition alleging that he executed the contract sued upon. If the contract is his, either as a matter of law or upon its proof as a fact, then the petition alleges a cause of action against him as the defendant, and was improperly dismissed on demurrer. To sustain the view of the majority of the court holding that no cause of action is set out on the contract against the defendant, it must be held as a matter of law that the contract is the contract of the Olds Motor Works, executed through the defendant as its agent. I do not think the contract demands this construction.

If tested by the signature alone, it clearly is his individual act, since the word “ distributor,” added after his signature, is merely descriptio personae. He does not, in signing, purport to execute the contract even as an agent. Nowhere in the instrument is the Olds Motor Works obligated to perform anything under the contract. The contract can not, therefore, demand the construction that it is the contract of the Olds Motor Works through the defendant as its agent, but, on the other hand, would seem to demand the construction that it is the individual contract of the defendant. If, however, it does not demand this latter construction, but even reasonably authorizes it, it is then a question of fact to be supported by extrinsic evidence as to whose obligation it is. Merchants Bank of Macon v. Central Bank of Georgia, 1 Ga. 418 (44 Am. Dec. 665); 1 Mechem on Agency (2d ed.), § 1150; 1 Am. & Eng. Ency. of Law (2d ed.), 1054.


text:
    11478.
    ALLEN v. MONTGOMERY.
    1. Where there is a lease for a year and the tenant, after the expiration of the lease, by consent of both parties, remains in possession of the premises and continues to pay rent to the landlord under the terms of the lease, which rent is accepted by the landlord, the law implies a renewal of the lease for another year.
    2. Where it is not essential to the validity of a contract that it be executed under seal,, but where it is, in behalf of a principal, executed under seal by an agent possessing legal authority under seal to execute it and bind his principal, the contract will, as against the principal, be disregarded as a specialty and be treated as only a simple contract in writing. Its execution under seal not being essential to the validity of the transaction, the seal will be treated as surplusage. Dumright v. Philpot, 16 Ga. 424 (3), 431 (60 Am. Dec. 738). That decision, being by a full bench, and not having been formally reviewed and overruled, was not superseded by subsequent conflicting decisions.

      Decided November 11, 1920.

      (a) Even though it might be adjudged that an agent is unauthorized, when acting under verbal authority only, to bind his principal by a contract in writing (but see Brandon v. Prilchett, 126 Ga. 286, 55 S. E. 241, 7 Ann. Cas. 1093), still, where the rent contract as executed by the' agent is for a term of only one year, and therefore not required by the statute to be in writing, the fact that it may have been actually reduced to writing would not operate to render it invalid as against principal.
    3. Where one in possession of premises, either as a tenant holding over or as a tenant at will, makes a written oiler to the landlord to become a tenant for the premises for a year, and the offer is accompanied with a sum of money in payment of a month’s rent for the premises under the proposed contract, and the landlord makes no reply to this communication of an offer, but accepts the money and allows the tenant to remain on the premises, such conduct upon the part of the tenant and the landlord would authorize the inference that there was a tacit acceptance by the landlord of the offer of the tenant, and that a lease contract for a year was created between the parties.
    Certiorari; from Fulton superior court — Judge Bell. March 16, 1920.
    Application for certiorari was denied by the Supreme Court.

      W. S. Dillon, C. M. Lancaster, for plaintiff in error.

      Etheridge, Sams & Etheridge, contra.
   Stephens, J.

1. This was a proceeding by a landlord to dispossess his tenant, upon the ground that there was a tenancy at will and that the tenant had, by the landlord, been given sixty-days’ notice, as required by the statute, of an intention on the part of the landlord to terminate the tenancy. The sole question for our determination is whether or not the tenant, when the landlord sought to dispossess him, held as a tenant at will or under an unexpired lease for a year. The tenant had rented the premises under a written lease for a “ term of twelve months commencing on the 1st day of April, 1918, and ending on the 31st day of March, 1919.” This lease had already expired, and the tenant was, at the time the landlord sought to dispossess him, living on the premises under either an express or an implied renewal of this lease, or under a separate and distinct agreement for another year, or as a tenant at will. If the tenancy was at will the tenant was properly dispossessed; but if the tenancy was for a year, either under a renewal of the old lease or under a new contract for a year, the tenant was, since his term had not expired, improperly dispossessed.

The evidence shows that on the 11th day of April, 1919, after the expiration of the lease which expired on the 31st day of March, 1919, the tenant remained in possession and paid to the agent of the landlord as rent for the said month of April the amount stipulated in the lease as the monthly rental for the premises, which amount was accepted by the agent, who, as is inferable from the evidence, was acting for the landlord. Such acceptance of rent by the landlord amounted to a consent to allow the tenant to remain on the premises as tenant. "If there be a lease for a year and by consent of both parties the tenant continue in possession afterwards, the law implies a tacit renovation of the contract. They are supposed to have renewed the old agreement, which 'wad to hold for a year.” Lord Mansfield in Wright v. Darby, 1 T. R. 161; cited with approval in Roberson v. Simons, 109 Ga. 360, 362 (34 S. E. 604). See also Kennesaw Guano Co. v. Miles, 132 Ga. 763, 770 (64 S. E. 1087); Cavanaugh v. Clinch, 88 Ga. 610 (15 S. E. 673); Ridgway v. Bryant, 8 Ga. App. 564 (70 S. E. 28). The tenant holding for a year under renewal of the original lease can not afterwards be dispossessed as a tenant at will after sixty days’ notice to him by the landlord of a termination of such tenancy.

2. It is contended, however, in behalf of the landlord, that the original lease was invalid and no tenancy for a year was thereby created. The invalidity of the lease is urged upon the ground that the agent of the landlord who executed the lease had no authority to do so, since the lease was a written instrument under seal and there was no authority under seal authorizing the agent to execute it in behalf of the landlord. While it is true that an agent, without authority under seal, can not bind his principal by a contract under seal, yet it is nevertheless true that where a contract does not, for its validity, require a seal, its execution under seal by. an agent without authority under seal does not necessarily render the instrument void as against the principal. If a contract is unnecessarily executed under seal, it may nevertheless be treated as a valid common-law parol contract. If the sealed instrument would have been a valid contract without the seal, and its execution without a seal was within the authority of the agent executing it, its execution under seal will be treated as surplusage. While the contract would, as against the principal, be void as a specialty, it would nevertheless be a good and valid writing by parol. In Drumright v. Philpot, 16 Ga. 424 (60 Am. Dec. 738), it is held: “Where there is a complete execution of his authority by an agent, and something more is added, not warranted, the execution is good for that which is authorized, and the excess only is void.” The court in its opinion says: “It'can not be disputed that an agency) whether general or special and whether conferred in one way or another, unless the contrary manifestly appears, is always construed to include all the usual and necessary means of executing it with effect. [Citations.] And it has been held that an agent, employed to sell a slave, may warrant him to be sound, unless inhibited by the terms of the authority under which he acted. [Citations.] Gouch [the agent], then, was clothed, by implication, with power to warrant the soundness of Becky and her two children. Strike off the seal as being unauthorized, still, the warranty is good.” The court then proceeds to quote from Lord Coke: “Where a man doeth that which he is authorized to do and more, there it is good for that which is warranted, and void for the rest ”; and quotes from Judge Story: “Where there is a complete execution of the authority and something ex abundanti is added,-which is improper, there the execution is good and the excess, only, is void.”

The written lease, therefore, in the instant case — treating the seal as surplusage-—-constituted a simple contract in writing between the landlord and the tenant. It was signed by the agent of the landlord styling himself as agent for his principal, and recited in its body that' it was a contract between the agent by name describing himself as the duly constituted agent for the landlord, and describing the premises leased, which the evidence shows belonged to the principal, and which the agent had general parol authority to rent upon such terms as he thought best. “Contracts not under seal, other than negotiable instruments, require but little observance of mere form. The intention of the parties is the prevailing consideration in the construction of this class of contracts; and the rule is well established that, if the nature and circumstances of the transaction show that the intention was to bind the principal and not the agent, effect will be given to such intention, though the agent signs -in his own name merely.” 1 Am. & Eng. Ency. of Law (2d ed.), 1050, 1051. See 2 C. J. 674; Merchants’ Bank of Macon v. Central Bank of Georgia, 1 Ga. 418 (44 Am. Dec. 665); Cleveland v. Stewart, 3 Ga. 283; Raleigh & Gaston R. Co. v. Pullman Co., 122 Ga. 700, 709 (50 S. E. 1008). This contract, if renewed, continued for another year, and the tenant could not be dispossessed as a tenant at will after sixty days’ notice from his landlord.

The ruling here relied upon, in Drumright v. Philpot, can not be disposed of as being obiter, upon the ground that the decision could have been predicated alone upon the other proposition that a partner, as such, acting under parol authority, or where there is ratification not under seal, may bind the partnership by his act under seal. Since the court'predicated its decision upon both of these propositions, neither one of the propositions can be regarded as obiter. 26 Am. & Eng. Ency. of Law (2d ed.), 171. As a matter of fact, the court seemed to rely with more confidence upon the proposition that since it was not essential to the validity of the transaction to execute the contract under seal, the seal would be treated as surplusage and the partner regarded as a mere agent for the partnership, who, if acting under parol authority, or' if there was ratification of his act not under seal, could bind the partnership by-the instrument treated as a simple contract. See 16 Ga. 431. Also see paper by A. H. Davis on "Sealed Instruments,” 5 Ga. Bar Asso. R. (1888), 171, 174-5. For authorities holding that a partner is an agent for the partnership, see Story on Partnership, 1; 30 Cyc. 477; Merchants & Farmers Bank v. Johnston, 130 Ga. 661, 664 (61 S. E. 543, 17 L. R. A. (N. S.) 969, 14 Ann. Cas. 546).

The original common-law rule that a seal is essential to the validity of a writing is medieval nonsense, and should have no place in modern jurisprudence. Chief Justice Lumpkin condemned it in his opinion in Drumright v. Philpot, with the statement that it had been repudiated by both Lord Mansfield and Chief Justice Marshall. The decision in Drumright v. Philpot was an effort to break away from what Chief Justice Lumpkin there characterized as a "threadbare technicality.” See also his opinion in Lowe v. Morris, 13 Ga. 147. The doctrine of Drum-right v. Philpot is in accordance with the weight of authority in America, and seems also to be the law in England. See Papley v. Butterfield, 1 Metcalf (Mass. 1840), 515 (35 Am. Dec. 374); Wagoner v. Watts, 44 N. J. L. 126; Edwards v. Dillon, 147 Ill. 14 (37 Am. St. Rep. 199), and cases there cited; 52 L. R. A. (N. S.). 510, note; 1 Am. & Eng. Ency. of Law (2d ed.), 953; 2 C. J. 458; 1 Mechem on Agency (2d ed.), § 215; Story on Agency (8th ed.), § 49; 30 Cyc. 487, and cases cited; Hunter v. Parker, 7 Meeson & Welsby, 322; Bowstead on Agency (6th ed., London), 40 et seq.; Merchant v. Morton (1901, 2 K. B. 829); Lindley on Partnership (8th ed.), 173.

We are not unmindful of the decisions of the Supreme Court subsequent to Drumright v. Philpot, supra, which hold contrary to the doctrine of that case. In Rowe v. Ware, 30 Ga. 278, the Supreme Court, in holding that' the authority of an agent to execute a contract under seal must be conferred upon the 'agent by an instrument under seal, also held that, even though a seal was not essential to the validity of the contract, the seal can not be disregarded and treated as surplusage. Judge Linton Stephens, in speaking for the court in that case, said: “But it was said that the bond need not have been under seal, though in point of fact it was so, and therefore the seal might be disregarded. Not so. The question was, whether Taylor had authority to sign the names of Hooks and Herndon to this bond as it is—■ sealed as it is. Whether a bond without a seal (to use for convenience a short but inaccurate phrase) would be valid has nothing to do with the case. If Taylor ever signed such .an one, we know nothing of it. Was he legally authorized to sign the bond? is the question. He was not, and therefore this bond does not bind them.” This case, which made no reference to Drumright v. Philpot, has been followed with approval in subsequent decisions of the Supreme Court, none of which review or question the ruling in Drumright v. Philpot. See Pollard v. Gibbs, 55 Ga. 45; Overman v. Atkinson, 102 Ga. 750 (29 S. E. 758); Van Dyke v. Van Dyke, 123 Ga. 686 (51 S. E. 582); Brandon v. Pritchett, 126 Ga. 286 (55 S. E. 241, 7 Ann. Cas. 1093); Lynch v. Poole, 138 Ga. 303 (75 S. E. 158); Neely v. Stevens, 138 Ga. 305 (75 S. E. 159); Hayes v. City of Atlanta, 1 Ga. App. 25 (57 S. E. 1087); Dalton Buggy Co. v. Wood, 7 Ga. App. 477 (67 S. E. 121). The decision in Drumright v. Philpot was rendered by a full bench, and has never been overruled. See references thereto in Barclay v. Hopkins, 59 Ga. 562; Colquitt v. Smith, 76 Ga. 709; Strong v. West, 110 Ga. 383 (35 S. E. 693); Smith v. Farmers Mutual Ins. Asso., 111. Ga. 787 (36 S. E. 957); Merchants & Farmers Bank v. Johnston, 130 Ga. 661 (61 S. E. 543, 17 L. R. A. (N. S.) 969, 14 Ann. Cas. 546). Not being overruled, it therefore, under the peculiar rule obtaining in this State, speaks with the full force effect of a statute, and is not superseded by subsequent rulings in conflict with it. Civil Code (1910), § 6307; Calhoun v. Cawley, 104 Ga. 335 (30 S. E. 773); Sheppard, v. Bridges, 137 Ga. 615, 626 (74 S. E. 245). The act of the legislature, approved December 9, 1858 (Ga. L. 1858, p. 74), giving statutory force and effect to full-bench decisions of the Supreme Court, was passed prior to the decision of Rowe v. Ware, 30 Ga. 378, supra. The provision in the Civil Code of 1895, § 5588 (also Civil Code of 1883, § 317), that a decision concurred in by a full bench of three Justices can not be overruled unless expressly questioned and reviewed and the court in its decision distinctly, states whether it adheres to, overrules, or modifies such decision, has never been repealed. The act of 1896 (Ga. L. 1896, p. 44), reorganizing the Supreme Court after it was increased to six Justices, modified the law as contained in this section, to conform with the new arrangement, but did not repeal the provision therein that a decision by the Supreme Court rendered by a full bench of three Justices can not be overruled unless expressly questioned and reviewed and the court in its decision distinctly states whether it adheres to, overrules, or modifies such decision. Weaver v. Carter, 101 Ga. 206, 207-8. See, in this connection, Strickland v. State, 115 Ga. 222, 226 (41 S. E. 713); Calhoun v. Cawley, 104 Ga. 335, 344 (30 S. E. 773); Adkins v. State, 103 Ga. 5 (1), 12 (30 S. E. 257).

We are, therefore, notwithstanding the later decisions of the Supreme Court, bound by Drumright v. Philpot, since it is the oldest decision and has not been expressly overruled. Interpreting that decision as we do, we hold upon its authority that, since the agent had valid authority to lease the premises for the landlord upon the terms contained in the written lease, it was a good contract for a year, 'as provided therein, although the agent, without authority, executed the lease, under seal. We have come to this conclusion by following the rules laid down in the statutes and in the decisions of the Supreme Court governing the courts in arriving at correct decisions. If we are wrong in our interpretation of Drumright v. Philpot, and in our conclusion as to its force .as authority, the Supreme Court can correct us. We will not, however, rest our decision alone upon its authority.

3. If, however, the lease was invalid as between the landlord and the tenant, there was no renewal implied by law for another year. Was there then in fact a contract of renewal? The evidence warranted 'a finding that on April 11,1919, after the alleged lease had already expired on the 31st day of March preceding, the tenant made to the agent of the landlord a payment to cover the rent for the month of April, in a sum equal to the monthly rental which was stiprdated in the alleged lease, and that accompanying this payment, which was made by check through the mail to the agent, there was inclosed a letter from the tenant to the agent offering to “renew” the alleged lease for another year, the receipt of which letter was never acknowledged. Whether or not there had been a valid lease between the parties for the preceding year, there nevertheless could have been a contract subsequently entered into between the qjarties for another year upon the same terms contained in the invalid lease, whether or not the new contract was properly, or improperly, styled a renewal of the alleged lease. Was there such a contract? If on the 11th day of April, when the tenant sought to renew the alleged lease upon the assumption that it was a valid contract between the parties, there had been no valid lease between the parties for the preceding year, still the payment by the tenant to the landlord, through the latter’s agent, of the rent for April (which, without an express agreement as to payment in advance, was not due until the end of the month of April) constituted, with the tenant’s promise to become a tenant for a year from the 1st of April, a sufficient consideration to support a promise, whether express or implied, by the landlord to “renew” or rent the premises for another year. If the payment thus made by the tenant on the condition contained in the letter was accepted1 by the landlord through his agent, and the tenant was allowed to continue on the premises as tenant, there was created a new lease contract for a year beginning the 1st of April, 1919. The evidence, while conflicting as to the receipt of the letter by the agent, authorized the inference that he did receive it, since he admits receiving the cheek. The evidence authorized the inference that there was a tacit acceptance by the landlord of the tenant’s offer, thus establishing a lease contract for a year between the parties.

The judge of the municipal court of Atlanta, who, without a jury, tried the ease in the first instance, was authorized to hold that the tenant was holding the premises as a tenant for a year and could not be properly dispossessed as a tenant at will. The judge of the superior court therefore erred in sustaining the certiorari and in entering a final judgment dispossessing the tenant.

Judgment reversed.

Jenkins, P. J., concurs. Smith, J., dissents.

Smith, J.,

dissenting. A writing purporting to be a lease for one year, signed by the agent of the owner, under seal, the agent having no authority under seal to execute a sealed instrument, and the owner never having, under seal, ratified the execution of such writing, was void as a lease; but the tenant’s entry into possession under it and the landlord’s reception of rent created a tenancy at will; and the receiving of monthly rental from the tenant by a purchaser from the owner did not change the relationship between the parties as landlord and tenant, and therefore the purchaser had a legal right to give the tenant the notice required by section 3709 of the Civil Code of 1910, and thus terminate the tenancy. See Hayes v. City of Atlanta, 1 Ga. App. 25 (2) (57 S. E. 1087), and cases there cited; Lynch v. Poole, 138 Ga. 303 (75 S. E. 158). I am therefore constrained to disagree with my colleagues in their ruling that the judge of the superior court erred in sustaining the certiorari and entering a final judgment in favor of the landlord.


text:
    11484, 11485.
    McCRIMMON v. NATIONAL BANK OF SAVANNAH; and vice versa.

    Decided November 11, 1920.
    The court correctly construed as a deed the instrument on which the claimant based his claim.
    The court did not err in refusing to admit in evidence the instrument offered by the plaintiff for the purpose of attacking the title of the claimant’s grantor, under whom the plaintiff also claimed.
    Levy and claim; from Treutlen superior court—Judge Graham. February 18, 1920.

      In the year 1918 and for some time prior thereto, the Durden Lumber & Timber Company operated a saw and shingle mill near the town of Soperton. MeCrimmon, a supply merchant, in that year furnished supplies which were used in the operation of these mills to the amount of $338.94. The debt was not paid, and MeCrimmon foreclosed his lien, provided for by section 3358 of the Civil Code (1910), and the execution was levied upon 19,600 shingles, the product of the mills. No defense was filed by Durden Lumber & Timber Company, but the National Bank of Savannah filed a claim to the shingles levied on, and the issue in the court below was whether the property levied on was subject to McCrimmon’s lien, as again the claimant. On the trial the plaintiff made out his case against the Durden Lumber & Timber Company, and the claimant introduced in evidence a paper dated and recorded more than a year previous to the date of the plaintiffs lien, the claimant contending that this instrument was a deed passing title to the timber from which the shingles levied on were made, and that consequently the shingles levied on were not, as against it, subject to McCrimmon’s lien. The plaintiff insisted that the claimant’s paper was not an absolute conveyance, nor such a conveyance as would defeat his lien; and the plaintiff offered as evidence a certain instrument from one Gillis, under which Durden Lumber & Timber Company held title, for the purpose of showing that when that company’s paper to the bank was made, the company did not have title, but had only what amounted to an option on the timber from which the shingles were made, and that actual title was acquired after the date of the instrument made by it to the bank. The trial judge held that the conveyance by the Durden Lumber & Timber Company to the National Bank of Savannah operated to put title in the bank,-and, being antecedent to, was superior to McCrimmon’s lien; and he refused to allow the plaintiff to introduce the Gillis instrument, and directed a verdict for the bank. MeCrimmon excepted.
    The instrument from the Durden Lumber & Timber Company to the bank and under which the bank claimed title began as follows: “This indenture made this 28th day of February, 1917, between the Durden Lumber & Timber Company, a corporation under the laws of the said State, having its principal office in said county, hereinafter called the borrower, and the National Bank of Savannah, a corporation under the laws of the United States, having its principal place of business in said county, hereinafter called the lender. Whereas this deed is given to secure the payment of an indebtedness from the borrower to the lender, and conveys to the lender an absolute title to the property hereinafter described, and is a deed to secure debt under section 6037 of the Code of Georgia of 1910, which indebtedness is now $85,325.07, and this deed is also given to secure all charges and interest thereon and any renewal thereof in whole or in part, and shall secure the payment of any other indebtedness due or not due from borrower to lender which may at any time exist, it being specifically agreed that any indebtedness from borrower to the lender, whether as maker, endorser, surety, guarantor, and in any other way whatever, due or not due, shall be secured hereby, so that this deed shall secure the payment of said indebtedness, however created or evidenced or in whatever way existing.” It then conveyed the pine trees and pine timber on 879% acres (known as Gillis, or M. B. and N. Gillis timber), and continued: “Together with all the rights, easements, hereditaments, and appurtenances of every sort, kind, and description, and all the covenants, ways, warranties, and rights, conveyed unto the said Frank R. Durden by the said deed from M. B. and N. Gillis, subject to a conveyance thereof to secure debt to the National Bank of Savannah, dated ■October, 1915. . . To have and to hold the said above described property in fee simple. The title of the said land and premises the borrower does hereby warrant to the lender.” The deed provided for maturity of the debt in case of default in payment of taxes, and further provided as follows: “When any indebtedness hereby secured becomes due, then the said lender shall have the right, by a writing, to appoint a trustee for the collection of the indebtedness hereby secured, with the powers herein specified, and to remove such trustee at will and appoint a successor or successors, with all the powers herein given to said trustee. After the appointment of said trustee, should he collect the debt hereby secured, he shall be entitled to a commission of five per cent on the amount hereby secured, but if he sell the property he shall be entitled to a commission of ten per cent on the amount hereby secured, but -trustee shall not be entitled -to collect any attorney’s fee.” The manner, method and cost of the sale which might be conducted by such trustee is then provided for.
    The paper from Gillis to the Durden Company, offered in evidence by the plaintiff and rejected .by the court, purported on its face to be an absolute and unconditional sale of all the timber involved, and the contention that it amounted to nothing more than an option was based on' the fact that it contained certain provisions for a survey and subdivision of the premises, and restricting the right of the Durden Company to remove the timber except from the several subdivisions seriatim, after payment of a stated sum in each case.

      W. J. Wallace, for plaintiff.

      Edward S. Elliott, contra.
   Jenkins, P. J.

1. An instrument which recites that it is given to secure a debt, and which by its terms purports to convey the absolute and unconditional title to property, will, in the absence of a defeasance clause, be construed as a deed and not as a mortgage, although it confers upon the grantee the right or option, upon default by the debtor, to appoint a trustee with power to sell the property and pay the debt. A defeasance clause is such a provision as will of itself render the instrument null and void upon the mere payment of the obligation by the debtor and without the interposition of any act on the part of the grantee. Pitts v. Maier, 115 Ga. 281 (41 S. E. 570); Scott v. Hughes, 124 Ga. 1000, 1002 (53 S. E. 453); Powell on Actions for Land, § 387. Under the ruling made in Ward v. Lord, 100 Ga. 407 (28 S. E. 446), although the form of the conveyance may be absolute, yet if the instrument further provides that the property be held in trust for the payment of the debt, and only so long as the debt remains unpaid, the creation of a trust under such terms operates as a defeasance and converts the instrument into a mortgage-—-this for the reason that by the terms of the instrument the trust becomes executed upon the payment of the debt. But where the title to the property is. absolutely and unconditionally passed to the creditor, that is, without any provision that it is to remain in him only so long as the debt remains unpaid, and where the payment of the debt is'not made to pass the title, but only affects the right of the trustee to exercise his power to sell, the mere option to 'appoint such a trustee, or even the actual appointment of such by the instrument itself, would not have the effect of rendering the instrument defeasible. Brice v. Lane, 90 Ga. 295 (15 S. E. 833); Ward v. Lord, supra.

2. Irrespective of whether or not the instrument from Gillis to the Durden Lumber & Timber Company amounted within itself to an absolute sale of the timber (see in this connection Loud v. Pritchett, 104 Ga. 648, 30 S. E. 870), the court did not err in refusing to permit the plaintiff to introduce it in evidence for the purpose of showing that the Durden Company, the bank’s grantor, had no title at the time the deed was executed. The plaintiff and the bank both being dependent upon the title of the Durden Company, it was not incumbent upon the latter to show title in its grantor. Florida Pine Co. v. Flint River Co., 140 Ga. 331 (78 S. E. 900); Moore v. Daugherty, 146 Ga. 176 (91 S. E. 14). If, as the plaintiff insists, the title of the Durden Company became good only after its conveyance to the bank, such subsequent acquisition of title would inure first to the benefit of the bank rather than to the plaintiff, since it is undisputed that the deed of the bank is much older than the lien of McCrimmon. Parker v. Jones, 57 Ga. 304 (3).

Judgment on main hill of exceptions affirmed; cross-hill dismissed.

Stephens and Smith, JJ., concur.


text:
    11491
    HINES, agent, v. EVANS.
    1. Under the rule in force in this State, unless wrongful acts of negligence be wilful or wanton, they do not authorize the recovery of damages where the resulting injury consists only in shock, fright, or mental pain and suffering. Chapman v. Western Union Tel. Co., 88 Ga. 763 (15 S. E. 901, 17 L. R. A. 430, 30 Am. St. Rep. 183) ; Cole v. Western Union Tel. Co., 23 Ga. App. 479 (2) (98 S. E. 407); Dunn v. Western Union Tel. Co., 2 Ga. App. 458 (3) (59 S. E. 189). But, even in the absence of wilfulness or wantonness, mere wrongful acts of negligence will authorize a recovery where the resulting fright, shock, or mental suffering is attended with actual immediate physical injury, or where from the nature of the fright or mental suffering there naturally follows as a direct consequence physical or mental impairment; and in either of such events the fright or mental suffering can itself be considered, together with the accompanying physical injury or such resulting physical or mental impairment, as an element of damage. Williamson v. Central of Ga. Ry. Co., 127 Ga. 125 (56 S. E. 119).

      Decided November 11, 1920.
    2. The court did not err in allowing the amendment to the plaintiff’s petition or in overruling the defendant’s demurrer.
    Action for damages; from-city court of Valdosta — Judge Cranford. April 12, 1920.

    Mrs. Leone Evans, by W. A. Evans as next friend, brought suit against Walker D. Hines, director-general of railroads (described by amendment as agent of the director-general), in control of and operating the Atlantic Coast Line Eailroad, to recover damages for personal injuries. She alleged substantially as follows: On April 1, 1919, Mrs. Evans with her husband was, with the permission and consent of the defendant, and under and by virtue of his authority, living near Ousley station, Lowndes county, in a house just west of the east end of the passing track at the station and approximately 40 feet north of the center of the main line. Shortly before that date she gave birth to a child, and she was still weak and nervous, although she had sufficiently recovered to be up and attending to the usual duties of her household. The defendant had allowed one of its freight-cars to become defective and unsafe for operation, in that one of the arch-bars thereon had become loose and dropped down much below its normal or proper position, and, as a freight-train carrying this car on the said date approached the said station, the said defective arch-bar caught the passing track, and as a result a serious wreck ensued. The freight-train at that time was being operated at a rate of speed of from 35 to 40 miles per hour, and a number of the cars of the train were derailed and were thrown about and piled upon each other with great force and violence, and one of them was thrbwn or fell over against the house in which the plaintiff was living, with such force and violence as to knock the house off its pillars and demolish the chimney, and to cause other injury and damage thereto. Paragraph 9 alleged: “ Petitioner was in said house at the time of said wreck, and at the time said ear struck and demolished it as aforesaid, and as a result thereof was thrown about and severely shocked, and she alleges that the shock then received by her when said car struck and demolished said house as aforesaid caused the serious mental and physical condition hereinafter described.” Paragraph 10 alleged that “ as a result of said shock and injury the mind of petitioner almost instantly became unbalanced, and shortly thereafter, although she had the best of care and attention and medical skill, lier mental condition gradually grew worse until slie reached a state of total insanity, and it became necessary, by a judgment of the court, to commit her to the State insane asylum." The acts of negligence charged are as follows: (a) the said train was being operated at said point and over' said passing track at a reckless and dangerous rate of speed; (b) the said arcli-bar had been permitted to work loose and drop down to such an extent that it caught the said passing track and derailed said car; (c) the said car was being carried and operated at said time in said train, notwithstanding the said arch-bar was in an unsafe condition. It was alleged that the negligence of the defendant, as set out, was the sole and proximate cause of her injury.
    The defendant demurred as follows: “ (1) The petition does not set forth a cause of action against the defendant; (2) the petition is brought to recover damages for the impairment of the mind of the plaintiff, resulting from mental shock or fright, and the petition shows by the facts alleged that no physical injury attended the cause for fright, and the fright was not of such a nature as to produce physical or mental impairment, directly and naturally resulting from the negligent acts alleged in the petition; (3) the petition shows by the facts alleged that there was no actual immediate personal injury to the plaintiff, and the petition fails to show that the impairment of the mind of the plaintiff was the natural and proximate result of the fright or shock, or that the defendant could or should have known that the negligent acts alleged in the petition would with reasonable certainty cause the results complained of.” Upon the hearing of the demurrer the plaintiff offered an amendment to paragraph 9 of the petition, amplifying the allegations as to the character and extent of her injury, the paragraph as finally amended being made to read as follows: “ That your petitioner was in said house at the time of said wreck, and at the time said car struck and demolished, it as aforesaid, and as a result thereof was thrown about and upon and against the floor and severely shocked, and she alleges that the shock then received by her, when said car struck and demolished said house as aforesaid, caused and produced great bodily and mental pain and suffering, and caused the serious mental and physical condition hereinafter described.” The amendment was allowed over the defendant’s objection that it sought to set forth a new cause of action. The demurrer was then overruled. Error is assigned on the allowance of this amendment and the overruling of the demurrer.

      Patterson & Copeland, Bennet & Branch, for plaintiff in error.

      E. K. Wilcox, Whitaker & Dukes, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) The petition in this case does not allege wantonness on the defendant’s part. If, therefore, as claimed in the several grounds of the demurrer, the original petition should be construed as an action to recover damages arising from mere negligence causing fright, shock, and mental suffering, but which was neither attended with physical injury nor followed by physical or mental impairment as a direct and natural consequence, then it would fail to set forth a cause of action and should have been dismissed. Under such a construction it could not even be aided by amendment, since not even a defectively stated cause of action would be shown to amend by. Davis v. Muscogee Mfg. Co., 106 Ga. 126 (32 S. E. 30); Burton v. Wadley Southern R. Co., 25 Ga. App. 599 (103 S. E. 881, 882). Taking the term “physical injury” as being synonymous with “bodily harm” or “bodily hurt,” while the original petition shows that the demolition of the house caused the plaintiff to be “ thrown about,” and that “ said shock and injury ” almost instantly caused her mind to become unbalanced, it is true that the nature, extent, and character of the injury is in no wise set forth and described, and while the amendment elaborates as to the manner in which the injury was occasioned, in that it says she was thrown about, upon, and against the floor and that the shock thus received caused “ great bodily and mental pain and suffering,” even the amendment entirely fails to set forth anything at all as to the nature, character, and extent of the bodily hurt. The defendant’s counsel contend that there is therefore nothing in the petition, even as amended, which could authorize a recovery for physical injuries.

While, as against a demurrer pointing out that the nature and extent of such alleged injuries were not set forth and described, we hardly think that special damages could be recovered therefor, still the language of the demurrer does not in fact raise this precise question. It does not deny the right to recover damages for the element of physical injury because the nature, extent, and character are not adequately set forth, but disputes the existence of a cause of action merely because, in the language of the demurrer, “ the petition shows by the facts alleged that no physical injuries attended the cause for fright.” We think the petition does show physical injuries inflicted contemporaneously with the shock. Even as originally brought, the petition shows that the demolishment of the house caused the plaintiff Lo be “thrown about,” that there was at the time both “shock and injury.” In other words, she was physically thrown about the room, shocked, and injured. This Avould certainly seem to constitute a battery of her person, resulting-in- physical injury, the nature and extent of which axe not described. By amendment it is shoAvn that she was thrown about, upon, and against the floor, and from such shock and injury suffered great bodily as well as mental pain. We do not think, therefore, that it can be properly said, in the language of tbe demurrer, that “ the petition shows by the facts alleged that no physical injury attended the cause for fright;” and since the demurrer must be taken to confine itself to the objections stated, tire general allegations setting fortli an accompanying physical injury should be taken as sufficient.

Tbe demurrer, in order to authorize dismissal of the suit, necessarily had to raise the additional objection that tbe petition fails to show that the alleged mental impairment “ was the natural and proximate result of the fright or shock, or that the defendant could or should have known that the negligent acts alleged in the jietition would with reasonable certainty cause the results complained of.” The two statements here contained amount, we think, to one and the same objection, since if it be granted that the defendant’s misconduct was the efficient cause of the injury and that the result complained of directly followed as the reasonable and natural consequence, then the defendant would be chargeable with knowledge that such an effect avotlIcI likely follow from such a cause. Indeed, it might be stated as an underlying- principle of general application in negligence cases that if the injury complained of could not have been reasonably foreseen and anticipated as the direct and natural result of the defendant’s act, then the wrong is not actionable. It is altogether impossible to harmonize the various holdings of the different courts of the country upon the question whether damages can he recovered where fright is occasioned by the negligence of the defendant unaccompanied by any sort of concurrent physical injury, but where the shock or fright is of such nature as to be directly followed as a natural and reasonable consequence by physical or mental impairment. (See, for a general and exhaustive treatment of this and kindred questions, 1 Sutherland on Damages (3d ed.), § 21 et seq.) The rule, however, as recognized in this State has been stated by the Supreme Court in Williamson v. Central R. Co., 127 Ga. 125, 131 (56 S. E. 119), as follows: “As a general rule, damages for mere fright are not recoverable. See State Mutual Life Asso. v. Baldwin, 116 Ga. 860; Mabry v. City Electric Co., Id. 624; Cole v. Atlanta R. Co., 102 Ga. 478; Chapman v. Western Union Telegraph Co., 88 Ga. 763. There, of course, may be instances where fright may be considered as an element of damages, but they should be restricted to where there is some physical injury attending the cause of the fright, or, in the absence of physical injury, where the fright is of such character as to produce some physical or mental impairment directly and naturally resulting from the wrongful act.” (Italics ours.)

In the instant case the ground of demurrer now under consideration points out that the petition fails to show either contemporaneous physical injury, or that the resulting mental impairment was the natural and proximate consequence of the fright. As we understand the principle, even whore in such a case there is attendant physical injury, in order to recover for resulting mental or physical impairment, such consequences must naturally and proximately follow. Does the petition in this case authorize a recovery for this element of damage ? From the statement of the pleadings above made, it will be seen that the petition charges directly and in terms that the stated negligence on the part of the defendant constituted the “ sole and proximate ” cause of the plaintiff’s mental derangement. Again, it is alleged that “ as a result of said shock and injury the mind of petitioner almost instantly became unbalanced,” etc. It is plain, therefore, both from the facts alleged and from the charge as in terms made, that the insanity was actually and almost instantly brought about by the mental and physical shock. Such being the case and no independent intervening cause being indicated or disclosed, but, on the contrary, such a cause being distinctly negatived, we do not think that it is absolutely required that the petition should state as its conclusion either that such cause was proximate or that such result reasonably and naturally followed. From the facts stated, this is but a conclusion, and from the facts stated, if proved, it would become a question for the jury. 8 A. & E.- Enc. of Law (2d ed.), 581, § 7.

Learned counsel for the defendant base much of their able argument upon the ruling made by this court in Goddard v. Watters, 14 Ga. App. 722 (82 S. E. 304). In that ease there was no contemporaneous physical injury, and it appears that the ruling there made was not based upon the theory that the subsequent physical injury could not have followed as the direct and natural result of the alleged nervous shock, but the decision, as well as the dissenting opinion, appears to have been arrived at upon the theory that the petition failed to show a wilful or wanton intent on the part of defendant to injure the plaintiff. It is not our understanding of the rule adopted in this State that wilfulness or wantonness is a necessary element of negligence in order to enable one to recover damages either where the fright is accompanied with actual physical injury or where it is followed by physical or mental impairment as a direct, natural, and probable consequence. Wilfulness and wantonness is a necessary element where it is sought to recover for mere fright or mental suffering alone, and it may be true that it would authorize a recovery where the impairment actually resulted, but does not naturally follow as a usual, probable consequence. We are therefore unable to follow in their entirety the pronouncements made by this court in the case referred to, although in most respects the law as there laid down is clearly and aptly stated. See a comprehensive treatment of the entire subject-matter in a note to that case as reported in 7 Negligence and Compensation Cases Annotated, 1.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    11473.
    Harris v. Atlantic Coast Line Railroad Co.
   Jenkins, P. J.

This is a suit against a railroad company for damages on account of injuries alleged to have been received in a runaway occasioned by the negligent manner in which the defendant’s ears approached a road-crossing. None of the acts of negligence set forth in the petition constitute negligence per se, since the petition fails to show that the road in which the plaintiff was traveling was a public road. On the theory .that the road was a private road, the petition, although it shows that the road-crossing was near the city of Savannah, fails to set forth clearly any facts going to show that the road was habitually or generally used by the public at the place where the injury occurred. No general demurrer was entered, nor was there any special demurrer raising the question of such deficiency. The petition charged: (1) negligence in the operation of the train which struck the petitioner; (2) negligence in running the train at a high and unlawful rate of speed, approximately thirty or forty miles per hour; (3) negligence in failing to blow the whistle on approaching the crossing, and (4) negligence in permitting the growth of weeds on the right of way, alongside the tracks, within a few feet of the crossing, so as to render it impossible for one entering upon the crossing to see the approach of a train. The railroad company demurred specially to the first of these allegations, on the ground that it was too vague and indefinite, and to the fourth allegation on the ground that it showed no facts that would create a liability on the part of the company. After the appearance term and at the time set for the hearing of the demurrer, a general motion to dismiss was entered by the plaintiff and sustained by the court. Held-.

Decided November 13, 1920.

“Under the code a declaration-which-has all the requisites to make it good and sufficient in substance, save that it omits to allege some fact essential to raise the duty involved in the cause of action which the pleader evidently intended to declare upon, is amendable by supplying the omitted fact at any stage of the case.” Ellison v. Georgia R. Co., 87 Ga. 691 (7) (13 S. E. 809); Atlanta, Knoxville & Northern R. Co. v. Whitaker, 115 Ga. 644 (42 S. E. 56). Thus, while the petition as ¿led was defective in that no facts were plainly set forth such as would impose upon the defendant the duty of anticipating the presence of travelers at the particular place where the injury occurred, the omission being an amendable defect and therefore not such as a verdict would fail to cure or such as would authorize a motion in arrest of judgment, it did not render the petition subject to be dismissed on motion. Brown v. Georgia, C. & N. R. Co., 119 Ga. 88 (1) (46 S. E. 71).

2. Where a runaway, resulting in injury to a plaintiff, is brought about by the negligent running of a locomotive and train, in approaching a road-crossing, at a place where it was incumbent upon the defendant to anticipate the presence of travelers, the efficient proximate cause of such injury is the negligent conduct of those operating the cars, and not the fright of the animal. Southern R. Co. v. Tankersley, 3 Ga. App. 548 (60 S. E. 297).

3. While the special demurrer was good as to the first allegation of negligence, and while, as indicated, the petition was otherwise imperfect, it nevertheless set forth a cause of action and should not have been dismissed on motion.

Judgment reversed.

Stephens and Smith, JJ., concur.

Action for damages; from city court of Savannah-—■ Judge Freeman. March 20, 1920.

Oliver & Oliver, for plaintiff.

Osborne, Lawrence & Abrahams, for defendant.


text:
    11630.
    Commercial City Bank v. Mitchell.
   Jenkins, P. J.

1. A tort is a legal wrong committed upon the person or property of another, independent of contract. But an action in tort may he maintained for the violation of a duty flowing from relations between the parties created by contract (Payne v. Watters, 9 Ga. App. 265 (70 S. E. 1114); Fam v. Wilkerson, 22 Ga. App. 193 (95 S. E. 752), or on account of wilful misrepresentation of a material fact, made to induce another to act, and upon which he does act to his injury. Civil Code (1910), § 4410.

2. While it is true that in a suit on contract an agent cannot be joined as codefendant for the purpose of enforcing the terms of the contract made on behalf of the principal by the authorized agent acting solely in his representative capacity, yet where the suit is not based on contract but is one in tort for deceit on account of alleged wilful misrepresentation of material facts, knowingly' made on behalf of the principal by his authorized agent, for the purpose of defrauding the plaintiff, then both the principal, on whose behalf the alleged wilful misrepresentations were made, and the agent alleged to have been the actual perpetrator of the deception can be joined in the same action.

3. Where a petition is in substance one of deceit and the allegations embrace every essential element of an action of that character, it can be sustained as such, although the form of the petition be in part appropriate to an action on contract. Chattanooga &c. R. Co. v. Palmer, 89 Ga. 161 (15 S. E. 34). Thus, where a petition is in no wise actually predicated upon any warranty, express or implied, but is based throughout upon the contention that the payee of certain promissory notes, with knowledge that they had been fully satisfied, proceeded through its authorized agent to induce the plaintiff to purchase them by means of knowingly false and fraudulent representations to the effect that the notes were unpaid and represented valid outstanding obligations, and where it appears, from the allegations of the petition, that such knowingly false and fraudulent representations were in good faith accepted and relied on by the purchaser, to his hurt and injury, a good cause of action in tort for deceit is set forth. Gordon v. Irvine, 105 Ga. 144 (31 S. E. 151).

(o) A different construction as to the nature and character of tlie'aetion would not be required merely because the amount of the damages sued for as constituting “the actual loss sustained” may in fact correspond with what the principal defendant might have been liable for in an action under the warranty of the contract, or in an action for a rescission. Thus, in an action of deceit, plainly setting -forth every element essential to a cause of that nature, where the petition says that the defendants “ have defrauded and deceived your petitioner, and have injured, damaged, and become liable to your petitioner in the full amount of the actual loss sustained by your petitioner by reason thereof, to wit: ” (naming the amount with interest, which in fact corresponds with the purchase-price), and where judgment is prayed for in such named amount, the effect of the petition would be to require the plaintiff to prove, as the measure of his “ actual damages,” the difference between the value of the sold thing at the time of delivery and what would have been its then value if the representations made by the defendants had been true (Millirons v. Dillon, 100 Ga. 656, 28 S. E. 385; James v. Elliott, 44 Ga. 237), he being limited in his recovery under such proof to the amount actually named in the petition.

Decided November 13, 1920.

Action for damages; from city court of Americus — Judge Harper. May 5, 1920.

Shipp & Sheppard, Wallis & Fort, for plaintiff in error.

W. W. Dykes, Hixon & Pace, contra.

4. Such petition founded in tort for deceit would be as good as such, though disclosing also that prior to the suit there had been an offer to rescind by the purchaser which was refused by the seller. Although it is true that a party cannot resort to inconsistent remedies, even of the same nature, and the rescission of a contract is inconsistent with an action for deceit, for the reason that a rescission would amount to a repudiation of the contract, while an action of deceit presupposes its affirmance (Bacon v. Moody, 117 Ga. 207, 43 S. E. 482; 12 R. C. L. 497), still a mere offer to rescind, where it does not appear that any advantage has been thus gained or detriment occasioned, or that the party making the offer has sought in any way to enforce the terms of his proposal, would not of itself alone constitute such an election of remedies as would work an estoppel and prevent the one making the rejected offer from thereafter actually resorting to another and inconsistent remedy.

5. The fact that the notes purchased by the plaintiff may have been indorsed over to him “without recourse” would not prevent the maintenance of such an action of deceit, since the nature of such a complaint is not for breach of any warranty. Brooke v. Cole, 108 Ga. 251 (33 S. E. 849). Even assuming that an indorsement without recourse would preclude the bringing of a suit on contract for the breach of an expressed or implied warranty (but see 8 C. J. 369, § 550), such would not be the ease here, since an action of this sort is predicated solely on the alleged wilful misrepresentation of a material fact, made to induce the purchaser to act, and upon which he did act to his injury, and it is entirely immaterial whether the purchaser warranted the property or not, or whether he relieved himself from the implied warranty imposed by law.

6. In accordance with the foregoing principles of law, the court correctly construed the petition as an action good in tort for deceit. There was consequently no misjoinder of parties or of causes, and the demurrers were properly overruled.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    11387.
    Fruit Dispatch Co. v. Petropol.
    Decided November 2, 1920.
    Complaint; from Clarke superior court — Judge Cobb. February 24, 1920.
   Jenkins, P. J.

1. An offer to purchase which contemplates acceptance by shipment of the goods affords the basis of a binding contract only when the proposal is accepted during the time in which it remains outstanding. Sheffield v. Whitfield, 6 Ga. App. 762 (2), (65 S. E. 807); Sivell v. Hogan, 119 Ga. 167, 172 (46 S. E. 67). In this case the jury were authorized to find, from the evidence, that the defendant’s offer to buy was withdrawn prior to the time that the plaintiff performed any act which would amount to an acceptance on its part.

2. The “uniform conditions governing sales” by the plaintiff as contained in its “ trade code ” book, which are set forth in the petition, and to which, it is shown, the defendant had previously given his assent in writing, relate to contracts of purchase and sale, and have no reference to mere offers withdrawn previous to any words or acts amounting to an acceptance.

3. While it is a recognized principle of law that “where a party gives a reason for his conduct and decision touching' anything involved in the controversy he cannot, after litigation has begun, change his ground and put his conduct upon another and different consideration” (Fenn v. Ware, 100 Ga. 563, 28 S. E. 238; Cowdery v. Greenlee, 126 Ga. 786, 56 S. E. 918, 8 L. R. A. (N. S.) 137; Bedingfield v. Bates Advertising Co., 2 Ga. App. 107, 111, 58 S. E. 320; Tuggle v. Green, ante, 647, 104 S. E. 85), and while it appears that when the goods were rejected by the defendant he wired to the plaintiff as follows: “ Cannot handle car of bananas, too ripe. Here subject to your order,” and while the meaning and effect of this message could be taken to import the recognition of a contract of purchase and sale, and a rejection of the goods by the defendant on account of a breach by the plaintiff of the terms of such an agreement, still since the message does not necessarily carry such an import, the language can be taken and construed in the light of the facts and circumstances surrounding the parties at the time. This language, according to the defendant’s evidence, was but the substantial repetition of his previous statement, made at the time he was notified by the plaintiff-that the shipment was in bad order and when he distinctly withdrew his offer to purchase prior to any form of acceptance by the plaintiff. The message, viewed in the light of this .testimony, could reasonably be taken either as a rejection of an independent tender or as a mere repetition of tlie grounds of his withdrawal previously communicated.

4. The exceptions pendente lite are without merit, since the amendment to the plea was permissible for the purpose of showing that the shipment, after being rejected, was handled by defendant only under direct coercion of the food administrator acting under war powers.

Judgment affirmed.

Stephens and Smith, JJ., concur.

Little, Powell, Smith & Goldstein, John J. Strickland, for plaintiff.

Erwin, Erwin & Nix, for defendant.


author: Miller, Judge.

text:
    A01A0062.
    REECE v. THE STATE.
    (550 SE2d 414)
   Miller, Judge.

While executing a search warrant, investigators discovered a large quantity of marijuana on the premises of George Marvin Reece. Subsequently, a jury convicted Reece of possession of marijuana with intent to distribute. The linchpin of the prosecution’s case was the contraband confiscated during the search, evidence that Reece tried without success to suppress. Following the denial of a motion for new trial, Reece filed this appeal. Reece now contests three rulings by the trial court: (1) the denial of his motion to suppress evidence found during the search of his home; (2) the admission of his statement at trial; and (3) the denial of his motion for new trial on the basis of an ineffective assistance of counsel claim. After considering each of these issues, we affirm.

The underlying case arose after Hall County Sheriff’s Department investigators obtained a warrant to search the shop and residence of Reece to look for “[s]tolen vehicles, stolen trailers, stolen vehicle parts and components, vehicle titles, tag receipts, and vehicles with no vehicle identification numbers [(‘VIN’)].” This search resulted in a multi-count indictment against Reece for two counts of theft by receiving, three counts of violating the Motor Vehicle Chop Shop and Stolen and Altered Property Act (“Chop Shop Act”), two counts of criminal use of articles with altered identification, possession of methamphetamine, and possession of marijuana with intent to distribute.

After protracted deliberations, the jury deadlocked on three charges: theft by receiving a stolen Camaro, a Chop Shop Act violation involving the Camaro, and a count involving an altered VIN on a dual axle trailer. The jury acquitted Reece on four counts. Reece was convicted only on the count for possessing marijuana with intent to distribute.

1. Reece contends that the trial court erred in denying his motion to suppress evidence that had been obtained as a result of a search warrant that was issued illegally and executed improperly.

(a) When reviewing a ruling on a motion to suppress, this Court must construe the evidence most favorably toward upholding the trial court’s findings and judgment, unless they are clearly erroneous. The trial court’s findings, even when based on conflicting evidence, should not be disturbed if supported by any evidence. “The duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” The specific question here is whether, taking a common sense approach, the information presented to the issuing magistrate showed a reasonable probability that contraband would be found in the place to be searched.

When so considered, the affidavit presented to the magistrate is replete with detailed information indicating that contraband would likely be found on the premises sought to be searched. According to that affidavit, within the last five days Murphy, an experienced auto theft investigator, had interviewed a confidential informant (“Cl”) who “did personally observe various stolen motor vehicles, their parts and components, and a stolen enclosed trailer being kept and stored at the above described premises.” Murphy testified that the Cl “had seen vehicle identification plates that were not on vehicles, as well as matching titles and tag receipts, for those plates.” The Cl told Murphy that “the premises [are] used for removing FVINs] on stolen vehicles and replacing them with [VINs] from wrecked or salvaged vehicles and that this is an ongoing activity.” Murphy vouched for the informant’s veracity and reliability, testifying:

[The Cl] has in the past provided affiant with information which has led to the recovery of three stolen vehicles, two stolen trailers, and three sets of altered serial numbers.
[The Cl] has also provided affiant with information in the past which has led to the arrest of at least one person for a felony theft violation. [The Cl] has in the past provided [another] Law Enforcement Officer with the Georgia Bureau of Investigation [(“GBI”)] with information which has led to the recovery of other stolen motor vehicles, their parts and components as well as with information which has led to the arrest of at least one person for felony theft violations.

Murphy testified that it was his belief that the premises at issue were being used to operate a “chop shop” and “to store both altered identification plates and identification plates from wrecked or salvaged vehicles and trailers.”

None of the facts or information about which Murphy testified was shown to have been false or unreliable. Therefore, we hold that the magistrate had a substantial basis for finding the existence of probable cause. Since the warrant was valid, the trial court did not err in denying the motion to suppress.

(b) Reece also faults the execution of the search warrant. He argues that officers exceeded the permissible scope of the warrant by including the use of drug dogs and by expanding the scope of the search to look for drugs. Reece argues that the marijuana evidence used against him would not have been discovered without an alert by the K-9 unit.

At the suppression hearing, Murphy testified that he and Sergeant David Spillers coordinated a search team composed of 12 to 14 law enforcement officers including GBI agents. According to Murphy, Spillers made arrangements for a K-9 drug detection unit from the Department of Corrections to provide assistance. When asked why the services of the K-9 unit were obtained, Murphy conceded that the K-9 unit was present to detect drugs even though drugs were not listed in the search warrant. Murphy explained that because their prior information about the presence of drugs on the premises was “stale,” he did not pursue authorization in the warrant to search for drugs. According to Murphy, two drug dogs and their handlers came “somewhat after we arrived.”

At the motion hearing, Investigator Greg Bennett, who assisted only in the search of the living room and part of the basement, testified that while in the basement he watched Detective Shane Dalton remove several bags of suspected drugs from a drop ceiling. Bennett saw Dalton pull out “bags of clear plastic sandwich baggies containing [a] green leafy substance.” When asked whether drug dogs had been used, Bennett responded, “I believe a dog was called in later. I don’t remember seeing a dog until after I had been at the residence for some time.” Bennett testified that he did not see a drug dog until after he himself had found other drugs, the suspected methamphetamine, upstairs.

Defense counsel argued that the search drastically exceeded its permissible scope “by looking in nooks and crannies for things ... or with ulterior motives.” The trial court, however, disagreed, noting that “vehicle titles and tag receipts . . . can be put in very small places.” At the conclusion of the hearing, the trial court denied the motion to suppress but reserved ruling on three issues: the seizure of drugs, the seizure of a key to a safety deposit box, and the seizure of certain so-called “private papers.” As to the drug evidence the court explained:

With regard to drugs, I am inclined to think that any drugs that may have been found were found in areas that were permissible to search pursuant to the warrant that was issued so that if in looking for things that were permissible under the warrant you find contraband, law enforcement could certainly seize the contraband. The only thing that raises any concern for me on this at all, and this is what I want you to address, is the presence of drug dogs and what impact that might have on the legality of the location of the drugs.

Ultimately, the trial court denied the motion to suppress in its entirety. At the outset of trial, defense counsel again argued the motion to suppress, but the court refused to alter its earlier ruling.

Plainly, the trial court thoroughly considered the question of whether the drug dogs had performed an impermissible role during the execution of the warrant. By allowing the evidence, the trial court implicitly found that the drug dogs had not done so. The evidence, although conflicting, supports this determination. The contraband was found in the ceiling of a closet in the basement by Officer Eddie Reeves with the help of Dalton. Reeves testified that as he was searching the water heater closet, he noticed loose marijuana down on the floor. According to Reeves, “it was already spread about in the area of the hot water heater . . .” when he saw it and pulled it out. After discovering the loose marijuana at the closet’s entrance, Reeves then asked Dalton to go up into the ceiling crawl space to search. Dalton was able to extract the main stash from inside the rafters in a drop ceiling above the closet. Dalton described it as “the most marijuana I had ever seen.” Reeves testified that “[w]e surmised that rats had gotten into it and strewed [sic] it about.” One of the double bags of marijuana admitted in evidence was, in fact, tom and spilling marijuana. When asked about the role of the K-9 unit, Reeves testified that the drug dogs narrowed the search area “down to the northern corner of that closet.” Since the officers had a lawful right to search the closet area and since no evidence shows that Reeves did not make the initial discovery of the loose marijuana leaves on the closet floor independently of the K-9 unit, we cannot say that the trial court clearly erred in finding the evidence admissible.

2. Reece contends that the trial court erred by admitting his custodial statement because the prosecution failed to provide a copy of it to him before trial in violation of OCGA § 17-16-4. The remarks at issue arose when the prosecution asked its witness, “what was that green leafy substance,” and Detective Dalton responded, “it was marijuana and Mr. Reece confirmed that when I was speaking to him.” After moving to strike the remark, the defense sought a mistrial based on the State’s purported noncompliance with statutory discovery rules. Outside the presence of the jury, Dalton testified that while the search continued, he had remained in the living room with Reece and Judy Martin Smith, his co-indictee on the drug charges. Smith grew increasingly impatient with waiting for the search to be completed because she did not want to be late for an appointment. When Reece asked Dalton why Smith could not go to her appointment, Dalton informed him that because some marijuana had been found in the basement, no one could leave. Reece then told Dalton the marijuana belonged to him and he smoked marijuana. Dalton denied asking any questions and testified that Reece just volunteered that information. The trial court decided that Reece’s remarks had been freely and voluntarily made and were not the result of a custodial interrogation.

Even though the remarks were otherwise admissible, the State did not provide the requisite notice to the defense about them. When the State fails to comply with OCGA § 17-16-4 (a), the trial court may prohibit the State from introducing evidence improperly withheld from the defense. This sanction, however, applies only when there has been a showing of prejudice to the defense and bad faith by the State. Here, bad faith has not been shown. No mention of Reece’s statement appeared in any investigative report. The prosecutor denied knowing about it, claiming that only after the trial was underway did Dalton tell him that Reece said he smoked marijuana. The prosecutor stated, “I had no intent of using that particular statement” because it “would probably bring his character into evidence” and because “that statement I never heard before was not provided in discovery. . . Accepting the prosecutor’s explanation, the trial court refused to grant a mistrial, finding “the failure to provide the incriminating statement via discovery was not based on bad faith.” After the trial court decided that the comments were admissible as substantive evidence, Smith’s counsel probed Dalton for Reece’s opinion of Smith’s continued detention. On redirect the prosecutor pointedly asked, “what was [sic] the exact words that Mr. Reece made to you,” and Dalton responded, “He advised that the marijuana was his marijuana.” In these circumstances, the trial court did not abuse its discretion in permitting the remarks to come into evidence.

Decided June 7, 2001.

Turner & Willis, Christopher W. Willis, for appellant.

Lydia J. Sartain, District Attorney, Jason J. Deal, E. Paul Stanley, Assistant District Attorneys, for appellee.

3. Reece contends that the denial of his motion for new trial was error because his counsel rendered ineffective assistance to him by waiving the objections to the admission of the drug evidence at trial. During the trial, counsel repeatedly stated, “[n]o objection,” when the subject evidence was tendered. Reece claims that he was harmed by this failure.

At trial, when a defendant affirmatively declares he has no objection to the introduction of evidence, he thereby waives any objection that might otherwise have been asserted, including those contained in a motion to suppress. Consequently, the issue of the admissibility of the drug evidence was waived here. Nevertheless, to prevail on an ineffectiveness claim, Reece had to establish not only that his trial counsel’s performance was deficient, but also that the deficient performance prejudiced his defense. Failure to satisfy either requirement is fatal to an ineffectiveness claim. Although Reece correctly argues that his trial counsel waived the objections, Reece cannot establish the requisite prejudice since the evidence obtained pursuant to the warrant was, in fact, properly admitted.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       The State nolle prossed Count 7 accusing Reece of altering the identification number on a generator.

        Karim v. State, 244 Ga. App. 282, 283-284 (2) (535 SE2d 296) (2000).

        Small v. State, 243 Ga. App. 678 (1) (534 SE2d 139) (2000).

       (Citations omitted.) Keller v. State, 169 Ga. App. 596 (314 SE2d 255) (1984).

        Perkins v. State, 220 Ga. App. 524 (1) (469 SE2d 796) (1996).

       See State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984).

       See Karim, supra, 244 Ga. App. at 284 (2).

        Guild v. State, 236 Ga. App. 444, 446 (4) (512 SE2d 343) (1999).

        Aleman v. State, 224 Ga. App. 391, 393 (2) (480 SE2d 393) (1997).

       See id.

        Dyer v. State, 233 Ga. App. 770, 771 (505 SE2d 71) (1998).

        Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844) (1997).

        Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997).

        Dyer, supra, 233 Ga. App. at 771.