text:
    10237.
    NEELY et al. v. WILLARD BAG & MANUFACTURING CO.
    Decided April 17, 1919.
    From the petition it appears that in June, 1914, the defendants entered into a written contract for the purchase of 15,000 fertilizer bags from the’ plaintiff at a stated price per thousand, “printing usual, delivery Jan./May next,” to be shipped “in approximately equal quantities during the months named;” that in the next December and January the plaintiff notified the defendants that it was ready to begin shipments and requested specifications as to the printing desired and ship.ping instructions, so that shipments might begin, but the defendants failed to give such specifications and instructions, and on January 29, 1915, the plaintiff telegraphed to them: “Your failure to give specifications and shipping instructions on your contract for bags forces us to dispose of the raw material covering same in New York open market for your account unless you direct immediate sale we will sell gradually on favorable market for your account;” to which on the same day the defendants replied by letter saying, “under your contract we expected to give you shipping instructions as we needed the bags as we have always done, but inasmuch as you are forcing this issue on us we will cancel the order. So you may sell the bags for your account and not ours;” that the plaintiff notified them that it would not do this, but would be compelled to sell for their account, and thereafter, on March 4, 1915, sold the bags for the account of the defendants, receiving a stated price, less than the contract price; and the suit is for the difference, less freight. It is alleged that in the contract the terms “printing usual” meant that the printing on the bags should be of the usual type and character, but the defendants were to notify the plaintiff of the words and figures they desired printed. Held:

    The petition states a cause of action, and is not subject to demurrer on the ground that the plaintiff breached the contract by-selling before the end of the period in which the bags were to be delivered, or on the ground that in no event could the plaintiff recover more than the difference between the contract price and the sale price for the delivery of 3,000 bags for each of the months of January and February. Under ■ the allegations of the petition it was incumbent on the defendants to give direction as to what they wished printed on the bags, and the failure to do this was a breach of the entire contract, and entitled the plaintiff, after due notice, to “sell the property, acting for this purpose . as agent for the vendee, and recover the difference between the contract price and the price on resale” (Civil Code of 1910, § 4131)-. The allegations as to notice of intention to sell were sufficient.

      Action on contract; from Richmond superior court—Judge H. C. Hammond. November 9, 1918.

      Callaway & Howard, for plaintiffs in error.

      Wright, Wright & Jackson, contra.
   Luke, J.

Willard Bag and Manufacturing Company sued Neely and Wilcox, doing business as South Atlantic Fertilizer Company, alleging that the defendants, on June 8, 1914, _entered into a written contract with the plaintiff for the purchase of 15,000 fertilizer bags of specified size' and weight, .at the price of $89 per thousand, “printing usual, delivery Jan./May next,” and that among other things the contract provided as follows: “It is understood and agreed that, unless otherwise specified, shipments will be made in approximately equal quantities during the months named.” It was alleged that under this provision, it not being otherwise specified in the contract, it was the right of the plant tiff to ship the bags in lots of 3,000 during each of the months of January, February, March, April, and May, 1915; and.that by. the ■terms “printing usual” it was meant that the printing upon the bags should be of the usual type and character, -but the defendants were to notify the plaintiff of the exact words and figures they desired to be printed upon the bags in the usual type and style. It was further alleged: In December, 1914, and January, 1915, the plaintiff duly notified.the defendants that it was ready to begin shipment of their order, and requested specifications as to the printing desired, and shipping instructions, so that the shipment of bags might begin. The defendants, however, failed and refused to give such specifications and shipping instructions, and the plaintiff thereupon, on January 29, 1915, telegraphed the defendants as follows: “Your failure to give specifications and shipping instructions on your contract for bags forces us to dispose of the raw material covering same in New York open market for' your account unless you direct immediate sale we will sell gradually. on favorable market for your account.” Thereupon the defendants notified the plaintiffs that they would cancel the order, and the plaintiff might sell- the bags for its own' account; such notification being contained in a letter to plaintiff from defendants, dated January 29,1915, which, after acknowledging receipt of the above telegram, concludes as follows: “In reply beg to say that under your contract we expected to give you shipping instructions as we needed the bags as wp have always done, but inasmuch as you are forcing this issue on us we will cancel the order. So you may sell the bags for your account and not ours.” The' plaintiff notified the defendants that it would not do this, but would be compelled to sell for the account of the defendants; which it thereafter did, on March 4, 1915, receiving for the bags the price of $70 per thousand, resulting in a net loss to it from the contract price, after deducting freight, of $258.74 as shown by statement submitted to the defendants. It was alleged that the defendants thereupon became indebted to the plaintiff in the sum of $258.74, etc.

The contract, a copy of which was attached to the petition, was as follows: “Wilmington, N. C., June 8, 1914. Sold by Willard Bag and Manufacturing Company, Wilmington, N. C., to South Atlantic Fertilizer Company, Augusta, Georgia, the following: Number of Bags 15000; size 40 x 54; weight of cloth 10y2 oz.; printing usual; delivery Jan./May next; freight paid; price $89.00 per m; terms net cash. Sellers not responsible for delays or losses occasioned by fires, strikes, wars, breakage of machinery, or any cause not sellers’ fault. Any disagreements arising under this contract to be settled by arbitration in Wilmington, N. C. It -is understood and agreed that, unless otherwise specified, shipments will be made in approximately equal quantities during the months named. Accepted: South Atlantic Fertilizer Co., by S. H. Wilcox. Accepted: Willard Bag and Manufacturing Co., by E. Payson Willard, Secretary and Treasurer.”

.The defendants demurreá upon the following grounds: (1) Because the petition does'not set forth clearly and distinctly a cause of action. (2) Because it appears from the petition that the plaintiff breached the contract by selling the bags on March 4, 1915, prior to the end of the period within which they were to be delivered. (3) . Because it appears from the petition and from the attached copy of the contract that even if' the bags were to be delivered at the rate of 3;000 per month, the months of delivery stated in the contract were January, February, March, April, and May, 1915, and the plaintiff sold all the bags on March 4, 1915, and up to that date only two months of the period of delivery had expired, and the plaintiff by its own act rendered itself unable to make deliveries in March, April, and May, and therefore in no event could the plaintiff recover, except for the difference between the contract price and the sale price, for the delivery of 3,000 bags for each of the .months of January and February. The court overruled the .demurrer to the petition and the defendants except to that ruling.

The plaintiff demurred to a part of paragraph 11 of the plea and answer, in which paragraph the defendants say: “For want of sufficient information, defendants are unable to admit or deny the allegations of paragraph 11 of plaintiff’s petition, but further answering said paragraph these defendants say that plaintiff had no right, under said contract, to sell said bags on the 4th of March, 1915, as stated in said paragraph, for the reason that the time of delivery had not expired, and the action of plaintiff in selling said bags at said time and three months before the period of delivery under the contract had expired was a breach of the entire contract on the part of plaintiff, and rendered plaintiff unable to fill the contract, and by said action on the part of plaintiff these defendants were fully released and relieved from all liability and from any damages which plaintiff may have suffered by reason of selling said bags or failing to deliver or tender the same. In addition thereto, these defendants say that plaintiff’s action in selling said bags three months before the full term of delivery had expired certainly relieved defendants from any damages for the portion of the bags which were to have been delivered according to plaintiff’s contention, during the months of March, April and May.” The demurrer was to “all that portion, following the first clause, which reads, ‘For want of sufficient information defendants are unable to admit or deny the allegations of paragraph 11 of plaintiff’s petition/ upon the ground that the allegations of said paragraph, following said quoted language, set forth no defense against plaintiff’s cause of action.” The court sustained this demurrer and struck this portion of the paragraph, and to this the defendants except.

The Civil Code (1910), § 4131, provides, among other remedies, where a purchaser refuses to take and pay for goods bought, that the seller “may sell the property, acting for this purpose as agent for the vendee, and recover the'difference between the contract price and the price on resale.” Did the defendants, in view of their contract with the plaintiff, so comport themselves as to render applicable this provision of the code and authorize the plaintiff, on notice to them, to sell the'bags without printing thereon, and recover the difference between the price the bags sold for and the price the defendants agreed to pay for the bags with the printing thereon? Were the defendants under a duty, by the terms of the contract, to give direction as to what they wished printed on the fertilizer bags? Did the defendants breach the contract? Was the contract entire or severable? If the contract was entire, the whole contract stands or falls together, and a failure to perform any of its terms is a breach of the whole. In Henderson Elevator Co. v. North Georgia Milling Co., 126 Ga. 279 (55 S. E. 50), it was held: “Whether a contract be entire or severable depends on the intention of the- contracting parties. A contract for the sale of 20,00.0 bushels No. 2 white corn, bulk, at .59% cts. per bushel, 10,000 bushels to be shipped in February and 10,000 bushels in March, is to be construed as an entire contract.” See also Central Ga. Brick Co. v. Carolina Portland Cement Co., 136 Ga. 693 (71 S. E. 1048), and cit.; Georgia Creosoting Co. v. McIntosh Land &c. Co., 23 Ga. App. 561 (99 S. E. 166). We think the present contract was an entire one. The defendants contend that to entitle the plaintiff to recover, the plaintiff should have each month ‘ tendered 3,000 bags to them without any printing thereon. In other words, the defendants contend that the plaintiff should have tried them out each month during the period of delivery, by tendering to them 3,000 bags with no printing, and see if they would take the bags tendered. We do not think so. The defendants further contend that the plaintiff should have waited until the last month of the period of delivery, despite their notice that so far as they were concerned the contract was cancelled, to see if the defendants would not give direction as to printing, or mayhaps accept the bags without printing. We cannot agree to this proposition. Under the allegations of the petition it cannot be said that the plaintiff could have put the printing on the bags without direction of the defendants. When was this direction to be given? A proper construction of the contract leads to but one answer. Certainly before the delivery, as provided by the contract, of the first shipment of the bags bought. The defendants can blame no one but themselves for a failure of the plaintiff to place the printing on the bags contemplated by the contract. They cannot gain anything by their conduct in this respect.

When the defendants failed and refused to give instructions as to printing, after being called upon in December, 1914, and January, 1915, so to do, what more notice under section 4131 of the Civil Code, supra, was required than it is alleged was given ? This section of the code, as construed by the Supreme Court, requires that notice of an intention to sell at the vendee’s risk shall be given by the vendor. As to such notice the allegations of the petition (which must be taken as true) are as follows: “In December, 1914, and January, 1915, plaintiff: duly notified the defendants that it was ready to begin shipment of their order, and requested specifications and shipping-instructions, and the plaintiff thereupon, on January 29, 1915, telegraphed the defendants as follows: 'Your failure to give specifications and shipping instructions on your contract for bags forces us to’ dispose of the raw material covering same in New York open market for your account unless you direct immediate sale we will sell gradually oh favorable market for your account.’ Thereupon the defendants notified the plaintiff that they would cancel the order, and that plaintiff might sell the bags for its own account; such notification being contained in a letter to plaintiff from defendants, dated January 29, 1915,'which, after acknowledging receipt of the above telegram, which it quotes in full, concludes as follows: 'In reply beg to say that under your contract we expected to give you shipping instructions as we needed the bags as we have always done, but inasmuch as you are forcing this issue on us, we will cancel the order. So you may sell the bags for your account and not ours.’ The plaintiff notified the defendants that it would not do this, but would be’compelled to sell for the account of defendants; which it thereafter did, oh March 4,1915, receiving for said bags the price of $70 per thousand, resulting in a net loss to it from the contract price with defendants, after deducting freight, of $258.74, as shown by statement submitted to defendants, as follows,” etc. We think the notice given met the requirements of the statute. See Davis Sulphur Ore Co. v. Atlanta Guano Co., 109 Ga. 607 (34 S. E. 1011)..

The defendants say that despite such notice and alleged breach, the plaintiff might have sued, on January 29, for damages, by making a case which entitled it to damages and setting up sufficient facts to show what damages it had sustained up to that timei To sustain this position, the defendants cite American Manufac turing Co. v. Champion Manufacturing Co., 13 Ga. App. 551 (79 S. E. 485); Southern Flour & Grain Co. v. St. Louis Grain Co., 11 Ga. App. ,401 (75 S. E. 439); Ford v. Lawson, 133 Ga. 238 (5) (65 S. E. 444); Smith v. Ga. Loan & Trust Co., 113 Ga. 975 (39 S. E. 410). Tbe plaintiff contends that the principle involved in the maxim that the law will allow no one to take advantage of his own wrong is more binding than the requirement that the completion of the contract be alleged. We agree with the defendants that it is generally essential to allege and to prove that the contract has been complied with and fully performed; but if it is alleged and proved*-that a failure to complete and fully perform the contract was due to the fault of the defendants, how useless it would be to require the plaintiff to hold the bags until the last day, awaiting the instruction from the defendants as to the .printing. The petition alleges, that “by the terms ‘printing usual/ contained in sáid contract, was meant that the printing upon said bags should be of the usual type and character, but the defendants were to notify the plaintiff the exact words and figures they desired to be printed upon said bags in such usual type and style.” We think that the refusal of the defendants, upon repeated requests so to do, to give printing directions was a breach of the entire contract. See 35 Cyc. 11. (c); Hinckley v. Pittsburg Bessemer Steel Co., 121 U. S. 264 (7 Sup. Ct. 875, 30 L. ed. 967); Byck v. Weller Co., 3 Ga. App. 387 (59 S. E. 1126), and cases there cited upon the question of performance of contract; Stimpson Scale Co. v. Taylor, 4 Ga. App. 567 (4) (61 S. E. 1131); DeLoach v. Smith, 83 Ga. 665 (10 S. E. 436); 3 Am. & Eng. Enc. of Law, 903, 904.

The trial judge did not err in overruling the general demurrer to the petition, nor in thereafter sustaining the demurrer to that' portion of paragraph 11 of the answer which was attacked by the demurrer.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    10283.
    Pynetree Paper Company v. Wood.
   Luke, J.

1. In an action for a personal injury, where the injury alleged Was not entirely to the peace, happiness, and feelings of the plaintiff, it was reversible error for the court to give in charge to the jury the provision of the code that “the worldly circumstances of the parties, the amount of bad faith in the .transaction, and all the attendant facts should be weighed” (Civil Code of 1910, § 4504). For this reason the judgment overruling the motion for a new trial must be reversed.

Decided April 17, 1919.

Rehearing Denied May 13, 1919.

Action for damages; from Irwin superior court—Judge Park presiding. December 11, 1918.

The action was-on account of the cutting off of fingers of the plaintiff in consequence of the slipping of a rope -which hé was splicing on a pulley in the defendant’s mill.

Bryan & Middlebrooks, George H. Carswell, for plaintiff in error.

Allen & Pottle, contra.

2. The other grounds of the motion for a new trial are not likely to arise on another trial of the case, and are not now considered.

Judgment reversed.

Wade, C. J., and Jenkins, J., concur.


author: Wade, C. J.

text:
    9917.
    SOCIAL CIRCLE COTTON MILL CO. v. RANSOM.
    Decided April 19, 1919.
    ■ Rehearing Denied May 13, 1919.
    1. Refusal to grant a new trial on account of newly discovered impeaching testimony was not an abuse of discretion.
    2. The charge of the court was not subject to the exception that the use of the words “agents or servants” extended the defendant’s liability to acts of others than authorized agents.
    3.. Failure to charge the jury that if the plaintiff was guilty of some negligence, but not of such negligence as would prevent a recovery, the defendant would be entitled to a diminution of damages was not error, there being no plea of contributory negligence, and no request so to charge.
    4. The instruction to the jury that as a part of mental suffering they might consider deformity, as the plaintiff would be entitled to recover damages for the consciousness he would carry through life of being a deformed person, was not subject to the exception that the pleadings did not authorize such an instruction.
    5. The rule that a ground of a motion for a new trial as to the admitting of evidence will not be considered by this court when it is so incomplete as to require reference to the brief of evidence in order- to understand it applies to the ground that the court erred in admitting testi-' mony that the witness “saw the little boy in the mill.”
    Action for damages; from Walton superior court—Judge Cobb. May 15, 1918.

      Orrin Roberts, for plaintiff in error.

      Sloan & Sloan, B. P. Gaillard, A. C. Stone, contra.
   Wade, C. J.

Applications for a new trial on the ground <~f newly discovered evidence are not favored by the courts (Burge v. State, 133 Ga. 431, 66 S. E. 243), and a new trial will not be granted on such a ground where it appears- that the alleged newly discovered evidence tends merely to impeach a witness for the plaintiff. Civil Code, § 6086; Bragg v. State, 15 Ga. App. 368 (83 S. E. 274); Williams v. State, 138 Ga. 825 (76 S. E. 347); Wimms v. State, 135 Ga. 659 (70 S. E. 254); Bowers v. State, 135 Ga. 310 (69 S. E. 536), and numerous other cases. The trial judge did not abuse his discretion in refusing to grant the motion for a new trial on account of the alleged newly discovered evidence.

Complaint is made that the court erred in charging the jury as follows: “It is the duty of the defendant to comply with this law, and to see that it is not violated by itself or its agents or servants, and the defendant through its agents and servants must exercise ordinary care in' carrying the law into effect; but if you believe, from the evidence, that the defendant- exercised ordinary care in its efforts, if it made any, to enforce the law, and, notwithstanding the exercise of ordinary care on its part, the plaintiff was in the mill and at the time of the alleged transaction was there without its knowledge or consent, or the knowledge or consent of its authorized agents [italics ours], then the defendant would not be liable.” Error is assigned on .the ground that the. use of the words “its agents or servants” was too broad and extended the defendant’s liability to acts of all persons engaged in and about its mill, and that no explanation was made as to what persons were included in the phrase “authorized agents.” Even if the words “its agents or servants” were too broad, the excerpt. complained of shows that the court in the same connection so qualified and limited the defendant’s liability to the acts of its “authorized agents” as to render the error (if error at all) harmless. If the defendant desired any fuller charge on this subject, it should have made written request therefor.

It is complained that the court erred in failing to charge the jury upon the question of diminution of damages. This exception is without merit, there being no plea setting up contributory negligence, and no timely written request so to charge. Southern Railway Co. v. Weatherly, 20 Ga. App. 399 (93 S. E. 31), and numerous cases there cited.

Error is assigned on the following instruction to the jury:

“As a part of mental suffering you may also consider deformity, as the plaintiff would be entitled to recover damages for the consciousness which he will carry through life of being a deformed person;” the objection to this instruction being that “the pleadings did not authorize the charge as stated, and [it] was error and harmful to movant.” The petition alleged that the plaintiff “is permanently injured, in that all of the fingers of his left hand have been severed, and he will be a cripple for life; that the suffering from his crippled, mangled, and lacerated hand has been the most excruciating; that he has suffered intensely, and that he will continue to suffer for’ and during his life; that he is rendered a cripple for life and must go through life with only one hand, all on. 'account of-the negligence and unlawful conduct of said defendant company.” There being evidence, to support these allegations, the • charge complained of was authorized. “Allegation as to pain authorizes proof of mental suffering, and (where the evidence authorizes) a submission of this element of damage to the jury. Nashville Railway Co. v. Miller, 120 Ga. 453 (6), 459 (47 S. E. 959, 67 L. R. A. 87).” Wrightsville & Tennille R. Co. v. Tompkins, 9 Ga. App. 154 (2), 160, 161 (70 S. E. 955). See Central R. Co. v. Lanier, 83 Ga. 587, 588 (10 S. E. 279).

It is complained that the court erred in admitting, over the objection of defendant’s counsel, the following testimony: “I saw the little boy in the mill.” Under repeated rulings of the Supreme Court and of this court, a special ground of a motion for a new trial must be complete in itself. If it is so incomplete as to require a reference to the brief of evidence to render it intelligible, it will not be considered by the reviewing court.

There was evidence to support the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Jenkins, J.

text:
    9924.
    Fortson v. Strickland el al.

   Jenkins, J.

1. The note sued on in this case contains a promise to pay on November 1, 1917, to the order of the payee “three thousand pounds lint-cotton, middling grade, merchantable bales, for value received, with interest from maturity at the rate of eight per cent, per annum,” and recites that “This is No. . . of a series of eleven notes, running from 1916 to 1926, 1 due each year,” and provides that, “on failure to pay any one or any part of any one of these notes when due; the entire series shall become due at once. If the payee [payor] should fail to pay this cotton when due, then this note may be discharged in money on the basis of cotton at ten cents per pound.” Thus, the maker of the note, under its plain and unambiguous terms, had' the right, on failure to deliver to the payee the amount of cotton called for by the note, to discharge the same by paying the equivalent of the cotton in money, calculated on the basis of ten cents per pound. The terms of the note being unambiguous, the court did not err in giving it this construction (Ludden & Bates Music House v. Dairy Supply Co., 17 Ga App. 581 (87 S. E. 823) ; and there being no allegation of either fraud, accident, or mistake, parol evidence was not admissible to vary the terms of the written contract. Civil Code (1910), §§ 4268,. 5788; Bush v. Roberts, 4 Ga. App. 531 (5) (62 S. E. 92.)

Decided April 19, 1919.

Complaint; from Madison superior court—Judge W. L. Hodges. May 8, 1918.

Compare Washington Exchange Bank v. Smith, ante, 356 (3), 357-8. .

C. E. Adams, for plaintiff.

W. T. Moseley, for defendants.

2. “A tender to prevent the running of interest must be continuing. Using the money after refusal by the creditor to receive it destroys this necessary attribute of a legal tender.” Gray v. Angier, 62 Ga. 596. (a) One of the defendants testified that on the day on which the note sued on became due, he tendered to the plaintiff $300 in cash, which the plaintiff refused to accept, and that he then turned the money over to his bookkeeper, who • might have _put it in the bank, or may have paid it to somebody for cotton; that he put his money in the bank, and handled his business through the bank, and that he had overdrawn at the bank several times since the date on which he tendered the money to the plaintiff. Under the ruling above quoted, the court' erred in directing a verdict in favor of the defendant’s plea of tender.

(5) While the defendant further testified that the tender was a continuing one; that he had with him in court $300 which he had that morning procured from the hank, and that, had the plaintiff decided to accept this amount, he was at all times ready, willing, and able to pay it, ' whether he had the mimey in the bank or not, because of the fact that he had arrangements whereby he could get it, still “The tender relied on to stop the interest should have been a continuing tender, that is to say, that the money tendered was, and always has been ready for the plaintiff, and not as in this case used by the defendant for Ms own benefit.” Gray v. Angier, supra. See also Cooley v. Bergstrom, 3 Ga. App. 496 (3) (60 S. E. 220) ; Bissell v. Heyward, 96 U. S. 580 (24 L. ed. 678) ; Parker v. Beasley, as reported in 33 L. R. A. 231 (116 N. C. 1, 21 S. E. 955).

Judgment reversed.

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


text:
    9930.
    Perlinski v. Maiden Lane Diamond Jewelry Company.
    Decided April 19, 1919.
    Rehearing Denied May 13, 1919.
    Certiorari; from Fulton, superior court—Judge Pendleton. May 24, 1918.

      R. B. Blackburn, for plaintiff in error, cited:

      Powell v. Subers, 67 Ga. 448.

      Napier, Wright & Wood, contra, cited:

      Southern Bell Tel. Co. v. Harris, 117 Ga. 1001 (2), 1003; Martin v. White, 115 Ga. 868; McCardle v. Kennedy, 92 Ga. 198; Nathans v. Arkwright, 66 Ga. 179; Powell v. Subers, supra (distinguished).
   Wade, C. J.

Suit was brought in the municipal court of Atlanta against Perlinski upon a promissory note signed by Bernstein and indorsed by the defendant. The defendant filed a plea in which' he admitted a prima facie case, but alleged that there was no consideration to him for his indorsement, inasmuch as, by agreement with the plaintiff, he was to be paid a consideration of ten per cent, on all merchandise sold to the maker of the note, and that he indorsed it because of this offered consideration, but the plaintiff refused and failed to pay him the ten per cent. The court struck the plea, on motion on the ground that no legal defense was set up. The defendant carried the case to the superior court by certiorari, the certiorari was overruled, and he excepted. Held: The mere fact that the ten per cent, which was to be the consideration to the defendant was never paid did not invalidate the contract and relieve him from liability thereon. Had he filed a proper plea he would have been entitled to a set-off against the plaintiff’s claim. The trial court propeidy struck the plea.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9934.
    Spratling, executrix, v. International Life Insurance Company.
   Jenkins, J.

1. Under the provisions of the “automatically non-forfeit-able” clause of the original policy of life insurance here involved, the accrued loan value, until consumed, would operate to continue the policy in force as fully and completely as though the premiums had been paid by the insured from funds derived from other sources. Perkins v. Empire Life-Insurance Co., 17 Ga. App. 658, 659 (87 S. E. 1094).

2. Liability under the terms of a policy of life insurance, when assumed by another company, must be takén and construed subject to such “exemptions, modifications, and limitations” as are imposed by the contract of reinsurance. 1 Joyce on Insurance, § 131-A; Fireman’s Fund Insurance Co. v. Aachen & Munich Fire Insurance Co., 2 Cal. App. 690 (84 Pac. 253).

3. Where the insurance commissioner of this State, acting under the authority of the superior court and in behalf of an insolvent insurer, its creditors, and its policyholders (Lester v. Wright, 147 Ga. 242, 93 S. E. 408), enters into a contract of reinsurance with another company, under which agreement such of the assets of'the original insurer as the court may determine belong to the policyholders, on account of the reserve liability under the policies, are to be taken over by the reinsurer after being first liquated by the insurance commissioner, and-where, in view of the existing uncertainty as to the extent of the original insurer’s insolvency, the reinsuring company, under the terms of the agreement, reserves unto itself a lien charged against the policies of insurance thus assumed by it, in an amount sufficient to equal the full reserve liability thereon, and where the contract of reinsurance specifically pi-ovides that “Cash loans and cash surrender values shall not be available to the policyholders of [the original insurer] for a period of one year from the date of this contract, nor thereafter exqept to the extent of the amounts turned over to [the reinsurer] for the credit of each policy, plus the net additions to reserve from premiums paid by the policyholder in cash, diminished by the surrender charge hereinafter designated, until, said liens shall be fully liquidated,” if the insured,■ within the period of one year from the date of the contract of reinsurance, allows his policy to lapse on account of non-payment, of premiums, the loan value which accrued under the original policy would not be available for -the purpose of automatically extending the insurance as a claim against the reinsuring company under the terms of the agreement thus entered into by it.

Decided April 19, 1919.

4. The rule would not be altered by the fact that under another provision of the contract the reinsurer agreed that the amount of such “liens,” representing the reserve liability under the policies, should be insured in its own company, arid had guaranteed that the premiums for such- additional insurance should be taken care of from the profits accruing in its management of such reinsured contracts. Without ' this provision, the effect of the reinsuring contract would have been the primary assumption by the new company of the- face of the original policies, less the amount of the reserve liabilities represented by the “liens” set up in its favor; but under the obligation thus made, the reinsuring company became at once liable, in accordance with the terms of its agreement, for the full face value of the original policy, without any diminution to the extent and in the amount of the reserve liability which had accrued under the old policies—tentatively assumed to be lost on account of the insolvency of the original company. Under the quoted terms of the reinsuring contract,' however, the amount of the reserve liability which accrued under the old policies and which might in any event actually be intact for future delivery to the new company for the benefit of such policyholders was not to be to any extent available to policyholders either as loan value or as cash surrender value for a period of one year, and could be available then only to the extent of the amount thus actually turned over to it by the insurance commissioner. The judge did not err in sustaining the demurrer to the petition.

Judgment affirmed.

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

Action on insurance policy; from Fulton superior court—Judge Pendleton. June 18, 1918.

The reinsurance contract referred to in the decision is as follows:

“This contract of reinsurance, this day made and entered into by and between the International Life Insurance Company, of St. Louis, Missouri, hereinafter called the International, and The Empire Life Insurance Company, of Atlanta, Georgia, hereinafter called'the Empire, witnesseth:

'“1. The International hereby assumes and reinsures all of the outstanding policies or contracts of life insurance of the Empire, and agrees, subject to the exemptions, modifications and limitations hereinafter stated, to carry out the terms and conditions thereof and to pay all liability arising thereon as fully and completely as the Empire would have been bound to do but,for this contract. The International assumes no liability whatever except on the outstanding policies or contracts of life insurance of the Empire as limited and modified herein.

“2. The reserve value of the policies shall be ascertained by an actuary or actuaries designated by the Insurance Commissioner of Georgia and the International. The basis of calculation to determine the amount of the reserve to be turned over by the Empire to the International and the net premiums upon which expense loading hereafter referred to shall be calculated shall be as follows:

“One year full preliminary term based on the American Experience Table of Mortality at 3y2% interest for all ordinary life, and twenty-payment life forms; modified preliminary term (ordinary life basis) on the American Experience Table of Mortality at 3!/2% interest for all policies other .than the ordinary life, twenty-payment life, paid-up and extended insurance and term policies; and the net level premium reserve on the American Experience Table of Mortality at 3y2% interest for paid-up, extended insurance, term policies and return premium provisions. It is the intent of the contracting parties to establish the foregoing described basis as a basis of reserve and net premiums on which policies of the Empire shall be valued in any audit or valuation contemplated under this contract, and to establish such reserve basis as the basis of surrender values of such policies of the said Empire reinsured hereunder by the International as provided by their terms for a surrender value in cash or valuable consideration greater than provided by the above basis of valuation, less the surrender charges hereinafter provided, and the foregoing basis is by the execution of this contract established and made conclusive upon policyholders of the Empire, except that in no instance shall the values originally provided be hereby increased. The reserve value on every policy shall be ascertained, which reserve, together with future net premiums, shall be sufficient to purchase-all the benefits guaranteed by such policies on the. basis described above. The reserve for ■ disability benefits, if any, shall be valued 'on McAdanfis Tables of Total Disability Benefits.

“3. The Empire does hereby sell, assign and transfer unto the International all of its insurance business, together with the' right to collect from the policyholders of the Empire all premiums which now are or may hereafter become due by virtue of any contract of insurance entered into by the Empire, and all policy contracts, applications, medical examination reports, all books of the company and all other documents and papers whatsoever affecting or appertaining to the policy contracts hereby assumed by the International, and all filing cases, safes, and containers in which the same are filed, systematically arranged, and agrees to co-operate with and aid the International in renewing and continuing to renew all business assumed by it and in reinstating all business standing lapsed on the books of the Empire, but without pecuniary liability therefor on the part of the Empire except as herein provided. The International, will, in good faith, undertake without delay the reinstatement of all policies of the Empire lapsed within • two years prior to date hereof, and to retain the insurance now on the books of said Empire. Insurance reinstated hereunder shall not be considered for a period of one year after date-'of reinstatement in ascertaining the profits accruing to the Empire as hereinafter provided. The International may issue its special reinstatement policy to applicants therefor whose policies have been lapsed for more than two years, and the Empire shall not participate in profits arising therefrom.’

“4. A lien shall be charged against the policies or contracts of insurance assumed by the International in an amount sufficient to equal the reserve liability. The amount of the liens to be charged against individual policies of the Empire shall be their respective shares of the total liabilities assumed by the International Life Insurance Company hereunder, and shall be determined on the basis of their respective means reserves as of the date of this contract. Such liens shall bear interest annually, at the rate of 5% per annum, and shall be insured in the International without medical examination or other evidence of the insurability of the policyholder, at attained age, at one-year term rates (American Experience 3/4%) plus a loading of Insurance shall not be carried on any liens other than those created by this contract; nor shall interest payments from profits payable to-the Empire, as provided herein, be made on any other liens than those created hereby; nor shall any liens, except as expressly created herein, be liquidated as herein provided. Premium notes, existing policy loans and liens, and net deferred premiums, shall be received on account of the reserve liability under the individual policies to the extent of their reserve value at the end of the current policy year.

“5. All of the assets and property of the Empire (excepting the insurance business and premiums which will become due therefor and premium notes, policy loans and deferred premiums) shall remain in the custody and under the control of the insurance department of the State of Georgia and shall be managed, controlled and administered by said insurance [department] in trust under the direction of the superior court of Eulton county, Georgia. That part of the income, as well as the corpus of said assets and property which said court may determine belongs to the policyholders of the Empire on account of the reversed liability on said policies, whose policies have been assumed by the International hereunder, shall, when reduced to money or to assets satisfactory to the International and acceptable under jthe statutes of Missouri as admitted assets, be delivered by the Insurance Commissioner of Georgia to the International. When so delivered, the International shall apply the same as hereinafter provided.

“6. The International shall keep accurate books of account showing the premiums received by it for renewal on business of the Empire assumed by it under this contract, including such lapsed business as may be reinstated for the account of the said Empire under the terms of this contract, showing the dates and amounts of said payments, and showing any and all conversions of said policy contracts and lapses and reinstatements thereof.. The Empire and the Insurance Commissioner of Georgia, his successors in office, or any duly accredited representative, shall have the right at all reasonable times to examine at the home office of the Inter- . national said books of account and all documents and papers relating thereto, but such examination shall be conducted in such manner as not to interfere with the proper conduct of business. It shall be the duty of the said Insurance Commissioner to make an audit on the first anniversary of this contract, and annually thereafter to determine the amount of liens then outstanding against the several policies of the Empire, and their ratio per cent, to the amount charged against individual policies. The ratio so determined shall be used as a standard for the ensuing period of one year in determining the rights of the policyholders of the Empire to surrender values. Expense of audit to be charged against amounts accruing to the Empire as profits hereunder.

“7. The International shall ascertain annually the mortality savings, gains from surrender policies, the amount of expense loading in excess of 9% of the gross premiums collected on the Empire policies, and the sum of such amounts shall constitute the profits accruing to the Empire hereunder. From this sum .shall be deducted, first, the interest on the liens herein provided; second, ■ the premium for the lien insurance, and, third, an amount equal to the tabular provision for mortality (on the basis of the American Experience Table at 3%%) for the period for which the International shall have been at risk on any policy that shall lapse before as much as one semi-annual premium thereon shall have been paid in cash to the International. If the amount otherwise payable to the Empire is not at least equal to the said interest on the liens, the premiums for the lien insurance, and during the first year equal to the additional amount of the tabular mortality on policies that lapse before as much as one semi-annual premium is paid, then the difference shall constitute a credit on the profits otherwise due the Empire at the end of subsequent years until fully liquidated.

“The profits accruing to the Empire, less the deductions authorized under this contract, shall be used as may hereafter be détermined by the Insurance Commissioner of the State of Georgia, or his successors in office, with the concurrence of the superior court of Fulton county, Georgia, which said court has jurisdiction over said Empire. The International, to the extent hereinafter mentioned, guarantees that the mortality savings, gains from surrender policies, and the amount of expense loading in excess of 9% of the gross premiums collected on the Empire policies as herein provided, before the deductions in this contract authorized have been made, shall be not less than twenty thousand dollars ($20,000.-00) per year for a period of seven years. Should the said profits in any one year amount to less than twenty thousand dollars ($20,-.000.00), the International will apply the amounts provided hereunder to be retained by it to cover the expense of and compensation for handling the'business. This account shall be taken at the end of each year of the contract. In the event the International is required at the end of any one year to make up a deficiency in order to bring the profits to the Empire up to the said sum of twenty thousand dollars ($20,000.00), and in the event there is an excess earning in any succeeding year, the amount which has been paid to the Empire may be taken out of excess earnings for succeeding year or years.

“It is not intended hereby to obligate the International to pay the said sum of twenty thousand dollars ($20,000.00) except out of the amounts accruing to it as herein provided as the expense of and compensation for handling the business, but all of said amounts may be absorbed if it be necessary to make the said payment of twenty thousand dollars ($20,000.00).

“8. The profits hereinbefore provided to be paid to the Empire shall be paid for a period of seven (7) years to the said Empire, or for its account as may be determined by the Insurance Commissioner of the State of Georgia, or his successors in office, and approved by the decree of the superior court of Eulton county, Georgia.

“9. If the lien herein established has not been entirely liquidated at the end of seven years from the date this' reinsurance contract becomes effective, the remainder thereof shall be carried as a lien on said Empire policies; provided that each holder of an Empire policy may have his insurance and premium reduced to the amount corresponding to the amount of the then validated reserve applicable thereto.

“10. Cash loans and cash surrender values shall not be available to the policyholders of the Empire for a period of one year from the date of this contract, nor thereafter except to the extent of the amounts turned over to the International for the credit of. each policy, plus the net additions to reserve from premiums paid by the policyholder in cash, diminished by the surrender charge hereinafter designated, until said liens shall be fully liquidated! So long as said liens or any part thereof remain unsatisfied, a surrender charge of two per cent, of the face of the policies shall be enforced against all policies. This provision is not intended to impose a surrender charge of two per cent, in addition to the surrender charge already provided for in said policies, but to make such a charge in the case of policies which provide no surrender charge, and to increase the charge in policies which provide for a less surrender charge, to a sufficient amount to make a surrender charge of two per cent. After said liens are fully liquidated, a surrender charge not exceeding one and one half per cent, of the full amount of each policy may, at the option of the International, be exacted from surrendering policyholders.

“11. No dividends or profits shall be apportioned or paid to the holders of participating policies of the Empire until the liens established by this contract are fully liquidated as contemplated herein, nor until the expiration of the seven-year period mentioned above. From and after the expiration of such period contemplated herein the International shall annually apportion to the policies of the Empire remaining in force the amounts accruing to their credit from said Empire policies, and shall pay such amounts in accordance with the terms of the several policy contracts of the Empire..

“12. The parties hereto agree that they will execute such other and further agreements, writings, or undertakings necessary to be executed in order to give full force and effect to this instrument and to another contemporaneous instrument, providing for certain financial arrangements.

“13. This contract is made subject to the terms of section 6936 of the Eevised Statutes of Missouri, 1909, and amendments thereto, authorizing and governing reinsurance contracts between insurance companies, and is to take effect as herein drawn, or with such modifications as may be made by the commission provided for [in] such statutes, at noon on the day upon which said contract as herein drawn, or as so modified 'by said commission, shall be approved by said commission; provided that the contract shall not be binding upon the parties hereto until authorized by the superior court of Fulton county, Georgia, which is now exercising jurisdiction over the said Empire under the statutes and laws of the State of Georgia in such cases made and provided.

“14. This contract, and another of even date providing for financial arrangements, are companion contracts, and it is not contemplated that the financial contract shall become binding upon the International unless this contract is executed, delivered, and put in force by the authorities hereinabove referred to.

“15. This contract having been approved by the superior court of Fulton county, Georgia, and by the board organized under the insurance laws of the State of Missouri as is contemplated in the foregoing provisions herein, same is now finally executed and delivered, to have full force and effect from the date and hour of delivery, which date and hour is endorsed hereon, said endorsement being signed on behalf of the insurance department and on behalf of the International Life Insurance Company.

“In witness whereof the International Life Insurance Company, in pursuance of proper corporate authority, has hereunto set its hand and affixed its seal, and the Empire Life Insurance Company acting through the insurance department of the State of Georgia, has hereunto set its hand and affixed its seal, all of which is done in duplicate, this the 17th day of March, 1916.

“International Life Insurance Company (Seal), “by Massey Wilson, President.

“The Empire Life Insurance Company (Seal), “by Wm. A. Wright,

“Insurance Commissioner of Georgia, and as such in charge of the assets of the Empire Life Insurance Company:

“Wm. A. Wright (Seal), “Insurance Commissioner of the State of Georgia.”

Jones & Chambers, for plaintiff.

Robert C. & Philip H. Alston, for defendant.


text:
    9937.
    WASH, guardian, v. KENNEDY, administratrix, et al.

    Decided April 19, 1919.
    Under the act of 1905 as to transfer of jurisdiction of suits pending in a county from -which a new county is laid off (Civil Code of 1910, §§ 829 et seq.), jurisdiction of administration pending in the court of ordinary of Irwin county passed from that court to the corresponding court of Ben Hill county when the part of Irwin county in which the decedent at the time of his death and the administrator resided was cut off into Ben Hill county by the creation of the latter county; and the court of ordinary of Irwin county was without jurisdiction of a subsequent motion to va'cate its judgment appointing the administrator. The superior court of Irwin county, on appeal, did not err in dismissing the ease.
    Appeal; from Irwin superior court—Judge Eve. April 19, 1918. W. C. Lankford, Eldridge Cults, H. E. Oxford, Quincey & Rice, for plaintiff, cited:
    Civil Code (1910), §§ 5962-3, 5968, 5664; Northern Contracting Co. v. Maddux, 144 Ga. 687 (4); Wash v. Dickson, 145 Ga. 405, 540 (2), 545.

      Otis H. Elkins, McDonald & Bennett, for defendant, cited:
    Park’s Code, §§ 829, 5962; A., B. & A. R. Co. v. Johnson, 127 Ga. 392 (1); Knight v. Knight, 27 Ga. 633.
   Jenkins, J.

On the first Monday in.September, 1903, L. Kennedy made application in the court of ordinary of Irwin county, for letters of administration upon the estate of William Wash, deceased, late a resident of that county. Citation was properly issued and notice thereunder given, and on the first Monday in October, 1903, the ordinary signed an order granting letters as prayed. Thereafter David Wash was appointed guardian for the minor children of the decedent, and on March 1, 1908, he filed a motion in the court of ordinary of Irwin county to vacate its judgment appointing L. Kennedy administrator; a rule was issued thereon and service made, and Kennedy, administrator, appeared and filed a demurrer and an answer. Hpon the hearing in the court of ordinary, at the May term, 1908, the demurrer was sustained and the petition dismissed. An_ appeal was taken to the superior court of Irwin county, and that court sustained the demurrer and dismissed .the petition. This judgment was reversed by the Supreme Court. See Wash v. Wash, 145 Ga. 405 (89 S. E. 364). When the case came on for a second hearing in the superior court of Irwin county the respondent amended his answer, and among other facts thus set forth were the following: that William Wash died intestate April 14, 1903,-while residing in a portion of Irwin, county afterwards embraced in the county of Ben Hill, which came into existence on January 7, 1907; that Kennedy at the time of his appointment as administrator was a resident of the city of Fitzgerald, then in Irwin county, which city also on the creation of Ben. Hill county became a part of the new county; that on January 19, 1907, James Whitley, as ordinary and clerk of the court of ordinary of Irwin county, certified and transmitted to the ordinary of Ben Hill county a transcript in the matter of L. Kennedy, administrator as aforesaid, embracing all proceedings pertaining to the administration, which transcript was filed in the office of the ordinary of Ben Hill county on February 4, 1907. The bill of exceptions shows that the amendment setting up these facts was “allowed subject to demurrer, in order that the legal points raised might be discussed pending the trial of said case, and the said amendments were therefore before the court, with" the right of counsel for plaintiff to demur generally and specifically to the same, but such demurrers were not presented nor adjudicated, for the reason that the court, after hearing the pleadings and evidence, and ascertaining certain undisputed facts with reference to the record in said case, was of the opinion that the court was entirely without jurisdiction, because of the opinion entertained by the court that on the creation of Ben Hill county by the constitutional amendment, the jurisdiction of the cause of action alleged in the original petition in the ordinary’s court and the amendment allowed thereto was not in the ordinary’s court of Irwin county, birt was in the ordinary’s court of the new county of Ben Hill, and that the proceedings should have been brought in the. ordinary’s court of Ben Hill county, and that therefore, upon appeal, the superior court of Irwin county had no jurisdiction whatever.” The bill of exceptions shows that the facts in the amended plea as set forth above were “either proven or admitted, or both proven and admitted,” as well as the fact that the administration of the estate of William Wash had not been completed, but was still pending in the ordinary’s court of Ben Hill county. After all the evidence for the plaintiff and the defendant had been introduced, the judge of the superior court, on motion of respondent’s counsel, passed an order dismissing the case. Error is assigned upon this order, on the ground that the court erred as a matter of law in ruling that the ordinary’s court of Irwin county had no jurisdiction of the original cause of action; and further because the respondent, under the facts stated above, had admitted the jurisdiction of the court.

1. Even were it to be conceded that the court had jurisdiction over the subject-matter of the proceeding, the jurisdictional facts as above set forth being fully made to appear from the bill of exceptions and by the record, this court cannot hold that the court below erred in entertaining the motion to dismiss. Civil Code (1910), § 5665; Northern Contracting Co. v. Maddux, 144 Ga. 686 (4 b) (87 S. E. 892).

2. Under the provisions of the general act concerning the organization of new counties, approved August 21, 1905 (Civil Code of 1910, §§ 829 et seq), "When a new county is organized, the jurisdiction of all suits pending in the county or counties from which the new county has been laid off, of which, under the constitution and laws, the new county shall have cognizance, is' transferred immediately to the corresponding courts in the new county.” Prior to the passage of this act the creation of a new county did not per se deprive the court of ordinary of the original county of jurisdiction of subsequent acts pertaining to a pending administration; since, prior to the passage of that act, the right to transfer such proceedings was merely one of privilege (Knight v. Knight, 27 Ga. 633, 636); but after the passage of the act the court of ordinary thus having sole jurisdiction of. the pending administration would be the proper and sole court to entertain a proceeding to vacate or set aside the judgment appointing an administrator over whom it thus exercised its authority. Under the facts and circumstances existing, the judgment appointing the administrator must be considered as the judgment of the court of ordinary of Ben Hill county, upon its taking and assuming jurisdiction of the subject-matter. See also, as bearing somewhat upon the proposition, Atlantic & Birmingham Ry. Co. v. Johnson, 127 Ga. 392 (56 S. E. 482, 11 L. R. A. (N. S.) 1119).

Judgment affirmed.

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


text:
    9971.
    SEABOARD AIR-LINE RAILWAY v. BREWTON.
    Decided April 19, 1919.
    Rehearing denied Mat 12, 1919.
    1. Error in the charge to the jury as to the measure of damages is immaterial when there is no specific complaint as to the amount of the verdict.
    2. Under the evidence in this case, from which it appears, without contradiction, that the plaintiff had bought a ticket entitling him to transportation on the defendant’s railroad, and was at the railroad station, going at the proper time towards the proper place to board the train for transportation to his destination, when he was struck by another train and received the injuries on account of which he was suing, instructions to the jury to the effect that the relation of passenger began when he bought the ticket, and continued as long as he was on the premises used by the railroad company for the purchasing of tickets and the boarding of trains by passengers, and that the railroad company was bound to use extraordinary care to keep the premises safe for this purpose, were not subject to exception because of placing on the railroad company the burden of extraordinary instead of ordinary care.
    (Certiorari granted by the Supreme Court.)
    Action for damages; from Bryan superior court—Judge Sheppard. June 15, 1918.

      Anderson, Cann, Cann & Walsh, for plaintiff in error.

      H. B. Strange, J. P. Dukes, contra.
   Luke, J.

Even if the court erred in instructing the jury as to the measure of damages, as alleged in the motion for a new trial, the error must be treated as immaterial, since there is no specific complaint that the verdict returned by the jury was too large. “Where there is no complaint of excessive damages, it is immaterial what measured them.” Gainesville & Northern R. Co. v. Galloway, 17 Ga. App. 703 (5), 703 (87 S. E. 1093); Gainesville Midland Ry. v. Jackson, 1 Ga. App. 633, 635 (57 S. E. 1007); Central Railroad v. Harris, 76 Ga. 501 (3).

Error is assigned on the following instruction to the jury: “Now in this case of Mr. Brewton (the plaintiff) the relation of passenger began when he purchased the ticket, and remained with him so long as he was on the premises used by the railroad company for the purpose of passengers buying tickets and boarding the trains and landing from the trains, and the railroad company is bound to use extraordinary care and diligence to keep the premises in such shape as to be safe for this purpose, or use extraordinary care and diligence in keeping the premises in such condition as to prevent the injury of a person seeking to board the train.” This excerpt from the charge is not subject to the criticism made, that it placed upon the defendant the burden of- extraordinary diligence in keeping its premises in such condition as to prevent injury to a person seeking to board its trains, whereas under the law ordinary diligence is the measure' of its duty. The petition alleged that the plaintiff, who had purchased a railroad-ticket, was, at the time he received the injuries sued for, -going forward at the proper place and time to board the defendant’s east-bound train, which had stopped at the station, when he was struck and knocked down by the defendant’s west-bound train. This allegation was sustained by uncontradicted evidence. Clearly, therefore, the passenger was, when injured, being “received” by the railway company, and not merely “awaiting” to be received; and consequently the case of Georgia, Carolina & Northern Ry. Co. v. Brown, 120 Ga. 380 (47 S. E. 942), is not in point, and the well-settled principle that carriers of passengers are bound to exercise extraordinary diligence for the preservation of the lives and persons of'their passengers, when receiving, keeping, carrying, and discharging passengers, is entirely applicable and controlling on this subject. See Atlanta Consolidated Street Ry. Co. v. Bates, 103 Ga. 333 (2), 347 (30 S. E. 41); Southern Ry. Co. v. Reeves, 116 Ga. 743 (42 S. E. 1015); Central Railroad v. Perry, 58 Ga. 461 (3); Central R. Co. v. Thompson, 76 Ga. 770 (2).

All of the other assignments of error, including the general grounds of the motion for a new trial, are expressly abandoned, except one, and that contains no substantial merit.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


text:
    9982, 9983.
    Patterson et al. v. Bank of Alapaha; and vice versa.

   Luke, J.

1. This suit being upon a written contract which was in part unconditional and in part conditional, the court did not err in sustaining a special demurrer to that portion of the defendant’s plea which was directed solely to the unconditional part of the contract, as the plea was not under oath. See Civil Code (1910), § 5660; Monk v. National Bank of Tifton, 12 Ga. App. 253 (76 S. E. 278) ; Turner v. Bank of Mayfield, 13 Ga. App. 547 (79 S. E. 180) ; O’Kelley v. Welch, 18 Ga. App. 157 (89 S. E. 76); Trippe v. Sheppard, 21 Ga. App. 279 (2) (94 S. E. 328).

Decided April 19, 1919.

Complaint; from city court of Thomasville—Judge W. H. Hammond. June 17, 1918.

Titus, Dekle & Hopkins, for Patterson et at.

Merrill & Grantham, contra.

2. As to the conditional portion of the contract, the court properly held that in so far as it denied the service of notice for the collection of attorney’s fees, verification was unnecessary; and on the trial of this issue the court (by written consent sitting as a trior of both law and fact) did not err in rendering judgment in favor of the plaintiff, for principal, interest, and attorney’s fees separately, there being ample proof submitted by the plaintiff to warrant such a judgment, and no evidénce being introduced by the defendants. Ford v. Wright, 9 Ga. App. 177 (70 S. E. 965) ; Monk v. National Bank of Tifton, supra.

3. The other questions presented for review are controlled by the following “ruling made in this case by the Supreme Court, to which court the ease was sent on the idea that it raised a constitutional question: “Upon inspection'of the record in this ease it appears that this constitutional question, which if properly presented would be within the jurisdiction of this court for determination, is raised for the first time in the bill of exceptions, and that it was not raised in and passed upon by the lower court. No valid assignment of error is therefore made so as to make this question the subject of review. No other question is made in the record which would bring the case within the jurisdiction of this court. It is therefore ordered' that the ease be transmitted to the Court of Appeals.” 148 Ga. 356 (96 S. E. 863).

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

Wade, C. J., and Jenkins, J., concur.


text:
    9993.
    LOVETT et al. v. GASKINS.
    1. Under the evidence in this case the court, in charging the jury as .to the contentions of the defendants,, did not err in failing to cover the contentions made in the amended plea of the defendant. Rowan.
    2. “A party may not impeach a witness voluntarily called by him, except where he can show to .the court that he has -been entrapped by the witness by a- previous contradictory statement: provided, that in the trial of all civil cases, either plaintiff or defendant shall be permitted to make the opposite party, or any one for whose immediate benefit such suit is prosecuted or defended, a witness, with the privilege of subjecting such witness to a thorough and shifting examination, and with the further privilege of impeachment, as though the witness had testified in his own behalf, and was being cross-examined.” Civil Code (1910), § 5879. The contention made in the first special ground of the motion for a new trial, to the effect that the plaintiff was bound by the testimony of the defendant Rowan, who was introduced by him as a witness, is therefore without merit.

      Decided April 19, 1919.
    3. There is nothing in the excerpt from the charge of the court as set out in the third special ground of the motion for a new trial which could in any way be taken or construed as an expression of opinion as to what had or had not been proved in regard to any material issue in controversy.
    4. Ground 4 is but an amplification of the general grounds of the motion for a new trial, and as the verdict was not without evidence to support it, the verdict can not be disturbed for the reason there assigned.
    . Complaint; from city court of Nashville—Judge Christian. July 13, 1918.
    This was a suit by Gaskins against Lovett, Gary, and Rowan on an unconditional joint and several promissory note of Lovett and Gary as principals, and Rowan as surety. There was a verdict and judgment in favor of the plaintiff.
    The three defendants joined in a plea under oath, setting up in substance that prior to. the date of the note sued on the plaintiff loaned to one Anderson a sum of money on the indorsement of Gary and Lovett as sureties, and that after the maturity of the original note and prior to the execution of the note sued on the plaintiff proposed to Lovett that if Lovett would procure an additional indorser or surety, he, Gaskins, would see Gary and through him obtain another surety in addition to Gary’s new indorsement, after which the original past-due Anderson note would be surrendered, and the new note as signed by the two old sureties together with such two new sureties, and with an extension of payment, would be then taken in lieu of the old one; that in accordance with this proposal Lovett procured the name of Rowan on the note sued on, and, after signing it himself, turned it over to the plaintiff for the purpose of getting it signed by Gary and the additional surety whom, under the proposal, the plaintiff was to obtain before it should be taken and beld in substitution of the original obligation. Rowan filed an additional defense by amendment under oath, to the effect that the note was signed by him at the request of Lovett, not for the purpose of being taken in substitution of the original note? but merely to be held by the plaintiff as a pledge or indemnity, in order that Lovett might obtain from Kim the original Anderson note for the purpose of collecting it out of certain property belonging to Anderson; that it was Ms understanding with Lovett that there was never to be any liability on the note signed by him, unless loss should result to the plaintiff by reason of such surrender of the original Anderson note to Lovett, and that this understanding was known to the. plaintiff when the note signed by Eowan was delivered. The evidence, however, fails to disclose that the plaintiff had knowledge of any such understanding by Eowan. While in the amended plea of Eowan it is alleged that the note was signed by him in blank, at the instance of Lovett, it is not contended, either in his plea or in his testimony, that the note was not filled out and completed in the precise manner and form contemplated. The allegations of the original plea were, under the evidence submitted, disputed issues of fact, the plaintiff testifying that he had agreed to accept and that he did accept the note sued on, just as executed by the three defendants, in lieu of the principal sum owing on the original note; and that while he still held and retained the original note, it.was only because the original sureties had failed in their agreement to pay the accrued interest on the old note when the new note was accepted, and that the old note was thus held solely as a claim for such unpaid interest not included in the new note.

      R. A. Hendricks, fox plaintiff in error.
    W. R. Smith, contra.
   Jenkins, J.

(After stating the foregoing facts.) The second special ground of the motion for a new trial is as follows: “The witness W. J. Eowan testified that he signed a blank note, there being no amount in the note and no payee. The purpose of this note was to act as a bond or security until the note signed by J. H. Anderson, J. D. Lovett, and J. H. Gary could be sued to judgment and made out of the property of J. E. Anderson. The court charged, ‘The defendants come into court and set up that they are not indebted to J. G. Gaskins on this note, and set out their reasons at length why they are not indebted. Briefly stated they are as follows: they contend that at the time they signed this note as sued upon, that there was an agreement between Mr. J. D. Lovett and Mr. J. G. Gaskins, the plaintiff, that they were not to give this note with the signature of W. J. Eowan as security and it was not to be delivered to Mr. Gaskins until he had secured the signature of Mr. J. H. Gary, and some other good and solvent security, to secure his part of the note. These are the issues, briefly stated, that you will be called upon to determine in the cased This charge of the court eliminated the contention of the defendant W. J. Eowan as set forth in paragraphs 3 and 3 of his answer, as follows: ‘2. Sometime prior to the date alleged in the note sued upon, J. D.' Lovett asked defendant to sign a blank note, there being no amount in the note, no date, no payee, and no time of payment, which note was to be used for this, specific purpose: Said Lovett represented to defendant that the plaintiff held a note signed by J. E. Anderson as principal, J. H. Gary and J.. D. Lovett, security; that said Gaskins had declined to permit said Lovett the use of the note for collecting the same out of J. H. Anderson, who at that time, and as represented by said Lovett, had lands and other property out of which the note could be made. Said Lovett represented that it would be necessary for him to place a note as a receipt, or to indemnify Gaskins against the failure of the said Lovett to return the above-described note. This defendant signed the note for this specific purpose only, the note not being given with the intention- of the same to be used or made as a negotiable instrument, but was only executed with the distinct understanding that it would be held by J. G. Gaskins in trust, as a receipt or showing for the original note, until said Lovett could take legal proceedings on the original note, collect the same, and save himself from loss by reason of his suretyship on the said Anderson note. 3. The note sued upon was never intended to be given in payment or settlement or renewal of the J. E. Anderson note. The same was never so delivered. All of the above facts were known to the plaintiff at the time the said note was filled out and signed by J. D. Lovett and J. H. Gary and delivered, all of which transaction took place out of the presence and without knowledge, consent or approval of this defendant. That this defendant did not sign said note as an instrument payable to the said J. G. Gaskins with the said J. D. Lovett and J. H. Gary, neither would he. have done so/ The charge did not state in full the contention of all the defendants, it restricted the jury in their deliberation to only a part of the defense, and to that part set up by J. D. Lovett and J. H. Gary, and prevented the jury from considering the defense of W. J. Eowan.”

As has already been stated, while the defendant Eowan sets forth in his amended plea and shows by his testimony that the note Avas signed by him in blank, still it is in nowise disputed that prior to its delivery by Lovett to the plaintiff the note was filled out and completed in the precise form intended by Eowan. His contention is that the charge of the court, in excluding his special and independent defense as set up under his amended plea, brings the case within the rule recently announced by this court in Rheney v. Anderson, 22 Ga,. App. 417 (96 S. E. 217); and he further contends that the principle of law-embodied in section 4537 of the Civil Code (1910), that “when one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury must bear the. loss,” does not have present application, for the reason that the plaintiff admits, that he still has actual possession of the-original note, although for the particular purpose indicated by him. The reasoning of the Rheney case, as subsequently set forth in Lynchlurg Shoe Co. v. Daniel, 23 Ga. App. 186 (98 S. E. 107), is to the effect that “As between the original parties, the consideration of a contract is ordinarily open to inquiry for the purpose of showing either that the consideration was originally illegal, and for this reason the promise so predicated was void, -or that the consideration has subsequently failed in whole or in -part, so as no longer to support the promise as made. If such be the real purport and intent of the plea, there results no infringement of the rule which forbids the variance by parol of the expressed terms of a written instrument. It is only when a defendant, under the guise of seeking to inquire into the consideration, is in fact using such privilege merely as a pretext, for the purpose of varying the written tdrms of the promise itself, that the inhibition of the parol evidence rule becomes applicable.” In the special concurrence in the Rheney case it was said: “In the present case, if the plea sought to be established did not show that the note sued on was, as betwe'en the parties, without any consideration, and if, in order to escape liability, it was necessary to go further and attack thé terms of the promise -itself, then, under the plain authority of these precedents, she [the defendant] would be precluded. If the consideration is good, the promise must be enforced as it is expressed; while, on the other-hand, if the contract be without consideration, it matters hot how absolute the admitted promise may be;' as a nudum pactum it cannot avail. The defense which is claimed in this case is not dependent upon an unauthorized attack upon the terms of an absolute and unambiguous promise; but the purport of the plea is that, while admitting the promise, it is nevertheless void, since, as between the parties, it is without the support of any valid consideration.”

In the instant case the jury by its verdict has found against the defense made by each of the three defendants under; the original plea. The jury has found in favor of the plaintiff’s contention that the new note as executed by the three defendants was accepted by him in good faith and in accordance with his agreement in lieu of the principal sum claimed by him under the original note. The evidence adduced by the defendant Rowan in support of his amended ¡olea does not in any way deny that the plaintiff on his part in good faith accepted the new note according to its actual tenor and effect, and in lieu of the old note as testified to by him. There is no sort of effort on Rowan’s jpart to show that the alleged understanding had by him with Lovett at the time he signed the note, and which was contrary to the unconditional terms of the instrument, .ever became known to the plaintiff. The special amended plea of Rowan merely seeks to alter by parol the written terms of his unconditional promise to pay, and to set up an agreement, contrary to the writing as made, with a person other than the payee, and of which contrary agreement the payee is not shown to have had knowledge. Since he does not undertake to deny that under the instrument sued on a good and valid consideration in good faith flowed from the plaintiff, the promise itself must stand as it is written. It is not the actual consideration parted with in good faith by the payee which the defendant Rowan by his evidence seeks to attack—this is not denied; but under the guise of setting up a different consideration from the one actually flowing from the payee, he seeks to alter the terms of the instrument by rendering conditional his written and unconditional promise. If for any reason this defendant was led by another person, not the opposite party, into signing an agreement with the understanding that the consideration was a different one from that which actually obtained, and such a one as might render inoperative and thus alter the unconditional terms of the written agreement, he would at least have to show that the payee of the obligation was a party to such understanding, in order to avail himself of such a defense.

Nor do we think that the principle of law referred to as embodied in section 4537 of the Civil Code (1910) is irrelevant to this case. When the plaintiff, in accordance with the agreement, actually received and accepted the new note in lieu of the principal sum claimed under the .original note, thereby releasing Anderson and extending the time of payment, the mere fact that he may have retained possession of the old note solely because the sureties then failed to pay up the interest due thereon, as it is admitted they were to do, would not affect the plaintiff’s title to the new note, or operate to retain him the title to the principal sum called for under the old note. When, under the agreement, the substitution was effected, he surrendered his demand against Anderson and accepted in lien thereof the liability of Eowan under the new extended promise. It might well be that in the interval covered by the extension his power to collect from Anderson could have been lost, even were it possible on his part to reassume his claim against a debtor who had been thus released.

We are therefore of the opinion that the evidence submitted in support of the amended plea completely' failed to substantiate any ground of valid defense, and the judge did not err in failing to cover by his charge the contention set up by the amended plea. See also City of Moultrie v. Schofield's Sons Co., 6 Ga. App. 464 (65 S. E. 315); Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138, 140 (33 S. E. 945).

Judgment affirmed.

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


text:
    10026.
    Bald Mountain Portland Cement Co. v. McGuirk.
   Luke, J.

1. Where a promissory note recited that its consideration was “fifty shares of the capital stock of the Bald Mountain Portland Cement Company,” it was reversible error, on the trial of a suit upon the note, for the court, over timely objection, to permit the defendant to prove by her witness Lester that “she (the defendant) asked me the question, if those subscriptions, if this money, had to be raised before they could build the plant, and I told her that Mr. Bass and this board of directors said they were going to order the machinery and,finance the proposition, and then these subscriptions would come in to take care of those obligations;” and it was also error to permit the defendant, over timely objection, to testify: “Mr. William E. •Lester came to me about taking stock in this Bald Mountain Portland Cement Company; he explained it all very fully to me, he talked a great deal about it, why he wanted me to take stock, I felt very anxious because they had promised to build the plant in twelve months.” This testimony, referring to representations made before the purchase of the stock and not integrated in the contract of indebtedness, varied and added to the terms of the note. See Dinkler v. Baer, 92 Ga. 432 (17 S. 953); C., R. & C. Ry. Co. v. Warthen, 98 Ga. 599 (25 S. E. 988) ; Smith v. Southern Building & Loan Co., 111 Ga. 811 (35 S. E. 707).

Decided April 19, 1919.

Complaint; from Fulton superior court—Judge Ellis. July 1, 1918.

Joseph P. Jones, Walter McElreath, for plaintiff in error.

Charles J. Lester, contra.

2. There is no error of law other than that dealt with above. Eor the reason herein set out, the court erred in overruling the motion for a new trial.

Judgment reversed.

Wade, C. J., and Jenkins, J., concur.


text:
    10047.
    DUCKETT v. MARTIN.
    1. A surety upon a note in which there is a waiver of homestead is discharged from liability thereon when it is shown that at the time he signed it there existed a secret agreement between the payee and the principal whereby the latter was to receive and did receive a usurious rate of interest; since the execution of such a secret verbal understanding and agreement operates to render void the waiver of homestead contained in the note, thereby increasing the liability of the surety. Lewis v. Brown 89 Ga. 115 (14 S. E. 881); Vaughan v. Farmers & Merchants Bank, 146 Ga. 51 (90 S. E. 478) ; Whilden v. Milledgeville Banking Co., 3 Ga. App. 69 (59 S. E. 336) ; Bank of Omega v. Ford, 20 Ga. App. 496 (93 S. E. 106). It is likewise true that if the payee, under a valid agreement with the principal an.d without the consent of the surety, extends the time of maturity as fixed by the obligation, a release of the surety will result; but in order to discharge a surety ■ by an extension of time granted to the principal, not only must there be an agreement for the extension, but the indulgence must be for a definite perio^ fixed by a valid agreement. Woolfolk v. Plant, 46 Ga. 422 (2); Bunn v. Commercial Bank, 98 Ga. 647 (26 S. E. 63) ; Ver Nooy v. Pitner, 17 Ga. App. 229 (2) (86 S. E. 456).
    2. If two persons sign a note apparently as joint principals, and there is nothing in it to show that one is surety for the other, the presumption of law is that both are liable as joint principals; but this presumption is not conclusive and may be rebutted by parol evidence or by circumstances (Civil Code of 1910, § 3556; Trammell v. Swift Fertilizer Works, 101 Ga. 778, 49 S. E. 739) ; Hardy v. Boyer, 7 Ga. App. 472, 67 S. E. 205), the burden being upon the one thus claiming suretyship to establish the fact; and where he claims a discharge by reason of some act increasing his risk as surety, he must go further and show that the payee knew he.was surety at the time of the act in question. Williams v. Peoples Bank, 9 Ga. App. 714 (72 S. E. 177).
    3. Whether the relationship of a promisor to his payee is that of joint principal or that of surety is a question to be determined by the facts, and is not to be governed by the opinion that either of the parties to the contract might have entertained. Williams v. Peoples Bank, supra.
    Decided April 19, 1919.
    4. No valid assignment of error can be based on the court’s act in admitting evidence, where in response to an objection the court states that if is not admitted generally, but is admitted for a special purpose, and the objecting party, after ascertaining the purpose for which it is to be admitted, makes no further objection to it. Bowers v. Southern Railway Co., 10 Ga. App. 367 (6) (73 S. E. 677). Grounds 1 and 2 of the amendment to the motion for a new trial are therefore without merit.
    5. When the excerpt from the charge of the court complained of in ground • 4 is considered in connection with the defense actually raised by the plea, it is not subject to the criticism made.
    Complaint;, from Clarke superior court—Judge Cobb. July 20, 1918. . v

      J. C. Edwards & Sons, Stephen C. Upson, for plaintiff in error.

      R. L. J. & S. J. Smith, John J. & Boy M. Strickland, contra.
   Jenkins, J.

J. D. Martin brought suit against W. H. Shelton and E. L. Duckett upon two promissory notes payable to the plaintiff and signed by the defendants apparently as joint principals, dated December 24, 1912, and due twelve 'months- after date, with interest from date at -the rate of eight per cent, per annum, each of which contained a waiver of homestead. One of the notes was given in renewal, and was for $2,100, and the other was for a new consideration of $2,000, and certain credits were entered on each. Shelton filed no defense. Duckett filed a plea that while the notes appeared to be signed by him as joint principal, he was really a surety only, and that this was known to the plaintiff at the time the notes were signed and accepted; and that he was released from liability as surety, for the reason that a secret agreement was entered into between the payee and the principal, Shelton, at the time the notes were signed, whereby Shelton was to pay and subsequently did pay to the plaintiff a usurious amount of interest, thereby rendering void the homestead waiver in the notes and thus increasing the risk of the surety. The defendant Duckett pleaded as a further ground of release a novation of the contract, by reason of the fact that the time for payment had been secretly extended by the plaintiff for a period of one year; but the evidence fails to substantiate any valid agreement to that effect, under the rule stated in the first headnote. Dpon the trial of the case the jury returned a verdict for the plaintiff, for the full amount sued for. The defendant made a motion for a new trial; which was overruled, and to this ruling the defendant excepts.

The evidence unmistakably sustains the allegations made by the plea relative to the payment of the agreed usury. The evidence of the plaintiff in nowise controverts this contention, since he admits that the notes were executed under the same agreement as was made in a previous loan, under which there was an understanding as to the payment of usury; and there is no dispute that usury was actually paid and received on the notes sued on, and it is also undisputed that Duckett was without any knowledge of such facts. On the question of suretyship, while the plaintiff testified that as to both of the notes sued on he considered Duckett a" joint maker with Shelton, and not merely a surety, Ducket testified postively that he received no consideration Avhatever from either of the notes. As to the note for $3,100, the evidence of the plaintiff himself shows that this note was given in renewal of the balance due on a loan of $3,000 previously made to the defendant Shelton alone on December 34, 1909; that Shelton at that time turned over to him as security certain bank stock and a collateral note for $1,000 signed by one Smith; that shortly before the time the $3,100. note now sued on was executed, Shelton stated that the Smith note Avas due, and that he wanted to collect it, and inquired of the plaintiff, “If Mr. Duckett and I will make a note, will you'release this Smith note ?” The plaintiff further testified: “Based on that, this $3,100 note was made. That was the balance due in that original transaction. On the same date is a $3,000 note. He got both of those on the same date, reneAval of one and got $3,000. . . When I first lent him [Shelton] I thought he was good. When I lent him that $3,000 [the previous loan] I had known Mr. Duckett for years, but' Mr. Duckett wasn’t heard of in the first $3,000 note. I lent that to W. H. Shelton. . . In one sense I thought Shelton was good at that time, but I took collateral for my money. . . I had the Smith note up as collateral. . . I took old man Duckett’s name in the place of the Smith note.” Thus, even though the plaintiff might in fact have considered that Duckett signed the $3,100 note as joint principal, this would not make him such, since the legal relationship of each party to the note must be determined by the facts, and is not to be governed by the mere opinion entertained by the parties to the contract. Applying to the facts as above stated the rules of law set out in the first three headnotes, we are of the opinion that it is conclusively shown, as a matter of law, that the relation which Duckett sustained to .the note for $2,100 was that of suretyship, and that the plaintiff must, under his own evidence, have had notice of this fact. This being true, Duckett was, by reason of the usury being secretly charged and received, and the consequent avoidance of the homestead waiver contained in that note, discharged from liability thereon. As to the note for $2,000 which was not taken in renewal, we think the questions as to whether Duckett was in fact a joint principal or merely a surety, and if a surety, whether the plaintiff had knowledge of the fact, were questions of fact for the jury to determine from the evidence submitted; and upon these questions the jury found in favor of the plaintiff. It is therefore ordered that the judgment overruling the motion for a new trial be reversed as to the defendant Duckett in so far as it relates to the note for $2,100, and affirmed so far as it relates to the note for $2,000; and that the judgment be remolded accordingly.

Judgment affirmed in part and reversed in part, with direction.

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


text:
    10056.
    Bixler v. Poulas.
    Decided April 19, 1919.
    Complaint; from city court of Greensboro—Judge Brown. August 12, 1918.

      Noel P. Park, for plaintiff.

      J. G. Faust, for defendant.
   Luke, J.

1. Where a contract 'of purchase and sale of goods was executory on both sides, notice by the purchaser to the seller to cancel the purchaser’s order for the goods was a breach of the contract, and thereafter the seller could not by an attempt to deliver the goods treat the contract as performed on his part, and sue the purchaser for the full purchase price. See Linder v. Cole Brothers Lightning Rod Co., 10 Ga. App. 102 (72 S. E. 719), and cases there cited.

2. The undisputed evidence shows that the order was cancelled by the purchaser several days before the seller undertook to deliver the goods ordered. Upon the evidence the court did not err in directing a verdict for the defendant.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


text:
    10058.
    Virginia-Carolina Chemical Co. v. Hollis.
   Jenkins, J.

1. The motion to dismiss the bill of exceptions upon the ground that the assignments of error made do not plainly specify the errors alleged is without merit. Wyly v. Burnett, 43 Ga. 438 (2) ; Holst v. Burrus, 79 Ga. 111 (4 S. E. 108); Phillips v. Southern Railway Co., 112 Ga. 197 (37 S. E. 418) ; Meeks v. Meeks, 5 Ga. App. 394 (63 S. E. 270); Savannah Trust Co. v. Rational Bank, 16 Ga. App. 706, 717 (86 8. E. 49).

2. A written notice to produce certain papers having been given by the plaintiff, but no oath having been made by him as to their materiality; or that they were in the claimant’s possession, and counsel not having stated in their place anything upon these points, the court did not err in refusing' to compel the production of the papers. Civil Code (1910), § 5842; Parish v. Weed Sewing Machine Co., 79 Ga. 682, 685 (3) ; (17 S. E. 138) ; Garlton v. Western & Atlantia R. Co., 81 Ga. 531 (2) (7 S. E. 632) ; Georgia Iron Co. v. Etowah Iron Co., 104 Ga. 395 (4) (30 S. E. 878; Carrington v. Brooks, 121 Ga. 250 (48 S. E. 970). Moreover, the court is inclined to hold that the notice as given was too general and indefinite in its nature. Branan v. Nashville &c. Ry. Co., 119 Ga. 738 (46 S. E. 882.)

3. If a defendant sells his property in order to prevent his creditors from making their claims out of it, the sale will be void as to him; and if at the time of the sale the purchaser has reasonable ground to suspect that such is his object, the sale will be void also as to the purchaser. Civil Code (1910), § 3224 (2) ; Smith v. Wellborn, 75 Ga. 799.

4. The fact that suits were pending against the vendor at the time of the sale is a circumstance which the jury may have a right to consider on the trial of the issue as to ■ whether the sale was fraudulent as against his creditors (Barber v. Terrell, 54 Ga. 146), as is also the fact of insolvency of the vendor at the time of the sale (Tillman v. Fontaine, 98 Ga. 672, 677, 27 S. E. 149) ; and where a question as to solvency or insolvency of a person is involved, a fi. fa. against him, with, an entry of nulla bona thereon, is admissible in evidence. Lawson v. Wright, 21 Ga. 242; Buttram v. Jackson, 32 Ga. 409; Jennings v. Rational Bank of Athens, 74 Ga. 782. The court therefore erred in excluding the fi. fa. offered in evidence by the plaintiff.

5. “The possession of property, real or personal, remaining with the ven-" dor after an absolute deed of conveyance, is an evidence of fraud.” Peck v. Land, 2 Ga. 1 (46 Am D. 368); Smith v. McDonald, 25 Ga. 377; Willingham v. Smith, 48 Ga. 580;

6. The plaintiff in fi. fa. having introduced evidence tending to show that at the time of the alleged sale of the property levied on to the claimant by the defendant in fi. fa. the debt on which the judgment was based existed and the suit in 1011011 the judgment was rendered was pending, that the defendant continued in possession of the property for a considerable period of time after the alleged sale, that he was then insolvent, and that there were numerous judgments of record against him at the time of the sale, that the claimant was an employee of the local bank of which the defendant was president, and that in their alleged close business relationship they occupied the same office, it became a question for determination by the jury whether the sale was bona fide and for a valuable consideration, or whether the vendor’s purpose and intent in making it was to defraud his creditors, and, if such fraudulent purpose did exist, whether the claimant had reasonable cause to suspect the same. Nicol v. Crittenden, 55 Ga. 497 (3) ; Planters & Miners Bank v. Willeo Cotton Mills, 60 Ga. 168. The judgment dismissing the levy, without submitting to the jury the questions at issue, was therefore erroneous;

Decided April 19, 1919.

Levy and claim; from city court of Sparta—Judge Moore. August 8, 1918.

1. There was a motion to dismiss ihe writ of error, “for the reason that the bill of exceptions fails to specify plainly the decision complained of, and the alleged errors committed by the court.” The assignments of error relate to (1) a ruling that the response to a notice to produce certain checks was sufficient; (2) a ruling that a certain fi. fa., offered in evidence for the purpose of showing insolvency of the defendant in fi. fa. at the time of the transfer of the property claimed in this case, was not admissible; and (3) the action of the court in dismissing the levy of the execution to which the claim, was interposed. Each ruling is followed by the statement that the plaintiff in error excepted to it, and now excepts and assigns the same as error, “upon the ground that said ruling was contrary to law.” Cited in support of the motion to dismiss: Civil Code (1910), § 6139; 60 Ga. 407 (5), 410; 74 Ga. 409; 133 Ga. 608 (2), 615.

2. The notice to produce called for documentary evidence described as follows: “Your pass-book at the First National Bank of Sparta, and such other pass-books as you may have at any and all other banks, since you have resided in Sparta, Georgia; also all cancelled checks drawn against deposits made by you on all banks since you have resided in Sparta; also all stock-certificates held by you issued by the Farmers’ Warehouse Company of Sparta, Ga., on or about October 11th, 1917.” Cited as to the notice: 68 Gd. 54 (1); 85 Ga. 431; 119 Ga. 738 (1).

H. W. Dent, Wiley & Lewis, Joseph W. Lewis, for plaintiff.

Burwell & Fleming, contra.

Judgment reversed.

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


text:
    10059.
    BOWDEN, sheriff, v. SCOTT.
    Decided April 19, 1919.
    A recovery on the forthcoming bond of a claimant of property seized under an attachment was not authorized where no execution had’ been issued on the judgment rendered on the attachment. Without such an execution the levying officer was not authorized to sell the property and could not make a legal demand for it under the bond; and it would make no difference that the property had been dissipated while in the possession of the party who had given the bond.
    Certiorari; from Bibb superior court—Judge Mathews. July 19, 1918.

      Charles H. Garrett, for plaintiff.

      Hardeman, Jones, Park & Johnston, Harry S. Strozier, for defendant.
   Luke, J.

This is a suit on a forthcoming bond given by a claimant in attachment; and to entitle the plaintiff to recover there must have been a breach of the bond. There was no such breach, since there never was a fi. fa. in the attachment ease. Nor was there a judgment or fi. fa. in the claim case. A judgment in attachment can be enforced only by execution. Civil Code (1910), § 5122. See also Rogers v. McDill, 9 Ga. 506. The plaintiff seeks to avoid this result by saying that there was a breach because the property was not produced on demand and was dissipated. This contention is, however, unsound, since he could not make a legal demand or complain of the dissipation of the property, until’legally in position to sell it, and he could not be 'legally in position to sell until he had a fi. fa. See Hatton v. Brown, 1 Ga. App. 747 (2) (57 S. E. 1044); Lassiter v. Byrd, 55 Ga. 606.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.