text:
    7326.
    MIMS et al. v. GILLIS.
    The option contract on which this suit was based failed to identify the property which was the subject-matter of the contract; and the court did not err in dismissing the action on demurrer.
    Decided December 8, 1916.
    Action on contract; from Worth superior court—Judge Cox. January 27, 1916.

      T. R. Perry, Glaude Payton, for plaintiffs.

      Pope & Bennet, J. B. Williamson, L. D. Passmore, J. H. Tipton, for defendant.
   Wade, C. J.

J. J. Mims, G. M, Pinson, and N. G. Houston brought suit against Mrs. Elizabeth Gillis, the same being an action for damages growing out of an option on land. The plaintiffs alleged in their petition that on the 11th day of August, 1910, Mrs. Gillis, for value received, executed and delivered to the J. J. Mims Company (a partnership composed of J. J. Mims and O. L. Deariso) a thirty-day option on all of her real and personal property in the city of Sylvester, Georgia, which contract was as follows :

“Georgia, Worth County. For and in consideration of one dollar, in hand paid, the receipt of which is hereby acknowledged, as well as in consideration of the sum of twenty-six thousand and five hundred and twenty-five dollars ($26,525.00) to be paid upon delivery of the deed, I hereby contract, agree and bind myself to sell and make to the J. J. Mims Company, or their assigns, good and sufficient warranty title in fee simple upon receipt of the aforesaid sum of purchase-money, at any time within thirty days from the date of this option, the following described land, situated, lying, and being in Worth county, Georgia: All of my entire property according to my tax returns of 1909 and 1910, also the Central Hotel. This is meant to cover all of my real and personal property both of every description in the city of Sylvester, whether improved or unimproved. Now, if the aforesaid sum of money is not paid within said time, then this option to become null and void, otherwise in full force, and for the faithful performance of the covenants herein contained I bind myself by these presents. Witness my hand and seal, this 11th day of August, 1910.

“Witness: M. Dees. . Mrs. E. Gillis (L. S.)”

It is further alleged in plaintiffs’ petition, that the defendant declined and refused to accept a tender of the sum necessary to pay her according to the terms of the option, and that she failed to comply with any part of her obligation and broke and repudiated her contract entirely, to the damage of petitioners; that on two separate and distinct occasions, and some time prior to the expiration of the option, the defendant informed the plaintiffs that they need not tender her the sum called for in the option, for the reason that she would not accept the same, and would not be able to abide by the terms of the option.

By way of amendment the plaintiffs set out the following list of property appearing on the tax-books of Worth as that belonging to the defendant: “The Central Hotel with two stores on the corner of Main and Bailroad streets of the value of fifteen thousand ($15,000.00) dollars; three two-story buildings with stores of the value of nine thousand ($9,000.00) dollars; two vacant lots with brick thereon, etc., of the valué of four thousand ($4,000.00) dollars; two-story boarding house on Kelley street of the value of thirty-five hundred ($3,500.00) dollars; thirteen residence buildings in the city of Sylvester owned by Mrs. E. Gillis at the time of giving her taxes in the year of 1909 of the value of thirteen thousand five hundred ($13,500.00) dollars; also two thousand ($2,000.00) dollars worth of furniture, and two thousand (2,000.00) in notes and • accounts, making an aggregate sum of forty-nine thousand ($49,000.00) dollars.”

The defendant demurred both generally and specially to the petition, and by way of general demurrer insisted that the alleged option was not sufficiently definite and certain, in its terms and in its description of the property, to set out a. cause of action for damages for the breach of the option contract. The trial court sustained the demurrer and dismissed the case, to which ruling the plaintiffs excepted.

This case turns upon the sole question whether or not the option was void for the want of sufficient description of the property claimed to be embraced therein. The statute of frauds requires all contracts for the sale of land or any interest therein to be in writing, signed by the party to be charged therewith, or some person by him lawfully authorized; and also that any contract for the sale of goods, wares, and merchandise in existence, or not in esse, to the amount of fifty dollars or more, shall be in writing, signed by the party to be charged therewith or some person by him lawfully authorized. Civil Code, § 3222 (4-7). The option under review purported to cover land and over fifty dollars worth of personal property, and therefore the statute of frauds applies. The entire contract should have been expressed in writing, since no material part thereof could be supplied by parol evidence. Every essential element of the sale should have been included in the option. One of these essentials is that the property intended to be conveyed should be described so as to b.e capable of identification. We do not mean to say that the property should be described with such precision that its location and identity would be apparent from the description alone. However, the description should be sufficiently clear to indicate with reasonable certainty the property intended to -be conveyed. “Parol evidence can not be invoked in aid of a vague and uncertain description, but it is available, under the maxim id certum est quod eertum reddi potest, to show the application of a description which itself furnishes a means of identification.” Tippins v. Phillips, 123 Ga. 415, 417 (51 S. E. 410). On the other hand, if the property intended to be conveyed in the option is so imperfectly and indefinitely described that no particular property, either real or personal, is designated, parol evidence would not be admissible to supply- a description. Douglass v. Bunn, 110 Ga. 159 (35 S. E. 339).

The property described in this option under consideration is: “All of my entire property according to my tax returns of 190.9 and 1910, also the Central Hotel. This is meant to cover all of my real and personal property both of every description in the city of Sylvester, whether improved or unimproved.” As we view the option, it fails altogether to describe the property intended to be conveyed, and the only key to its location would be the tax-books of Worth county, and this, we think, is wholly insufficient. This conclusion is borne out by the amendment to the petition, which sets out the following list of property appearing on the tax-hooks as that of the said Mrs. E. Gillis, the defendant: The Central Hotel with two stores on the corner of Main and Eailroad streets, of the value of $15,000; three two-story buildings with stores of value of $9,000; two vacant lots with brick thereon, qte., of the value of $4,000; two-story boarding house on Kelley street of the value of $3,500; thirteen residence buildings in the city of Sylvester owned by Mrs. E. Gillis at the time of giving her taxes in the year of 1909, of the value of $13,500; also two thousand dollars worth of furniture, and two thousand-- dollars in notes and accounts, making an aggregate sum of $49,000. It may be that some of the above items of property are so sufficiently and definitely described as to be capable of identification, but as to the majority of these items we do not hesitate to say that nothing could be more indefinite and vague. The contract was an entire contract, and consequently “the whole contract stands or falls together.” Civil Code, § 4228. See also Fletcher v. McMillan, 132 Ga. 477 (64 S. E. 268); Robson v. Harwell, 6 Ga. 589 (6), 620. It was held in the case last cited that “A contract made for the sale of real and' personal property, which is entire and founded upon one and the same consideration, if void in part is void in toto.”

By way of example, let us consider the following item appearing in the plaintiff s’ amendment: “thirteen residence buildings in the city nf Sylvester owned by Mrs. E. Gillis at the time of giving her taxes in the year of 1909 of the value of $13,500.” There is no attempt to name specifically each residence. No boundaries or monuments, either natural or artificial, are mentioned, to enable a court or jury to locate or identify them. Manifestly, therefore, this item does not satisfy the requirements of the statute. It is not an ambiguous description, but simply no description. Again, consider this item: “Two vacant lots with brick thereoh, etc.” Merely to read this item is to note how wholly indefinite, vague, and lacking in all necessary elements.of any description it is. As in the item above referred to, there is no attempt to locate the lots by name or by boundaries. It is apparent that these items, as well as the majority of the items set out in the amendment, contain no description sufficient to identify and point out any particular property.

In Douglass v. Bunn, supra, where the land was described in the writing as “424 acres in Tattnall county,” the Supreme Court said that “Nothing could be more indefinite than this description; not the slightest key is furnished to locate the land.” In Gatins v. Angier, 104 Ga. 386 (30 S. E. 876), the land was described as “a certain piece of land described as follows: Commencing about one hundred (100) feet from the land-lot line on Mayson & Turner’s road and extending along said road four hundred and twenty (420) feet and running back a uniform width to the Sims land,” and the court held that this description was so indefinite and vague as to render it impossible to identify any particular land. In Borum v. Swift, 125 Ga. 198 (53 S. E. 608), it was held: “Where on the trial of an action for the breach of a written agreement for the sale and delivery of a given number of pounds of ‘ribs’ of the value, at the agreed price, of more than fifty dollars, the evidence showed that the term ‘ribs’ is ambiguous.even to dealers in the general class of goods to which the alleged contract referred—there being several distinct kinds of ‘ribs’ known to the trade,—and that the plaintiff understood, from a parol agreement with the defendant, that the ‘ribs’ referred to in the writing were of a particular kind and of a given average weight, the writing did not sufficiently identify its subject-matter, nor contain the entire agreement, as required by the statute of frauds; and therefore the plaintiff could not recover.” In North v. Mendel, 73 Ga. 400 (54 Am. E. 879), where the following memorandum was under consideration, “Mendel five bellies, eight. Ehrlich offers seven-eights ten bellies lighter than last. . . Sold account C. H. North & Co., Mendel, 5 bellies 8,” it was held that “this was not a sufficient memorandum in writing to comply with the requirements of the statute of frauds, so as to bind Mendel & Brother as purchasers. It fails to set out the purchasers or the quantity and price of the article sold, and parol evidence was not admissible to supply these defects.” See also Nettles v. Charles P. Glover Realty Co., 141 Ga. 126 (80 S. E. 630).

It is needless to multiply authorities on this point. Before there can be a valid sale and purchase, there must be a subject-matter as well as a price, and in order to-satisfy the statute this subject-matter must be described in the writing.

We hold that the option which was the basis of this suit was void for the lack of sufficient description of the property intended to be conveyed; since the only keyéo the location of some of said property contained in the writing is “according to my tax returns of 1909 and 1910,” and it is apparent from the plaintiffs amendment (which sets out a list of the property appearing on the tax-books as that belonging to the defendant) that the words “according to my tax returns,” etc., fail to identify all, if any, of the property intended to be conveyed. The trial court, therefore, properly sustained the demurrer and dismissed the suit.

Judgment affirmed.

Hodges, J., absent.


source: Caselaw Access Project

author: Broyles, J.

license: Public Domain

text:
    7361.
    Supreme Lodge of the Masons' Annuity v. Gardner.
   Broyles, J.

1. The only assignment of error in the bill of exceptions is upon the overruling of the motion for a new trial. The ground of the motion which complains of the overruling of a motion to strike certain paragraphs of the plaintiff’s petition can not be considered by this court. This was matter for direct exception, and could not properly be made a ground of a motion for a new trial.

2. There was no error in the admission of the evidence complained of in the 2d special ground of the motion for a new trial.

3. No material error appears in any of the instructions excepted to, when they are considered in connection with the other instructions to the jury.

4. The plaintiff testified that his written contract with the defendant, dated July 7, 1913, as to his doing preliminary work in the State of Georgia, expired by limitation on November 1st following, and that on the last-named date a new contract between him and the defendant, as to work in-the State, of Oklahoma, went into effect; that this latter contract 'was at first by parol, but was afterwards confirmed in writing by both parties (and these writings were introduced in evidence upon the trial). The plaintiff further testified that under the new contract he was to be sent as an “organizer” for the defendant to the State of Oklahoma, at a certain compensation, and that if the defendant found that it could not “open up” that State for-its business, it would make an attempt to “open up” either the State of Arkansas or Tennessee. The undisputed evidence was that the defendant did attempt to enter Oklahoma with its business, but that it failed to do so. There was evidence, however, from the plaintiff that thereafter the defendant made no attempt (although specifically called upon to do so by the plaintiff) to “open up” either of the other two named States in compliance with the terms of their contract. This evidence authorized a finding that the contract had been wrongfully breached by the defendant. The question as to whether any or all of the above parol testimony was inadmissible, for the reason that it varied the terms of the plain, unambiguous written contract between the parties, was not raised upon the trial of the case, and consequently can not be considered here. There was some evidence which authorized the amount of the verdict returned, and, it having been approved by the trial judge, this court has no authority to interfere.

Decided December 8, 1916.

Action on contract; from city court of Atlanta—Judge Eeid. February 14, 1916.

Napier, Wright & Wood, for plaintiff in error.

T. B. Felder, Owens Johnson, L. J. Grossman, contra.

Judgment affirmed.

Hodges, J., absent.


text:
    7437.
    King v. Pattillo.
    Decided December 8, 1916.
    Certiorari; from Fulton superior court—Judge Bell. March 28, 1916.

      Gober & Jackson, for plaintiff in error.

      Guy W. Parker, Bryan, Jordan & Middlebrooks, contra.
   Broyles, J.

1. Under the liberal rules of pleading and practice in the municipal court of Atlanta, the process, with the account sued on attached thereto, was not subject to the general or special demurrers interposed, and the trial judge did nor err in overruling them.

2. Contracts creating the relation of landlord and tenant for any time not exceeding one year may be by parol. Civil Code, § 3693. The evidence authorized a finding that, after the expiration of' the original written lease between the parties, a new parol contract was entered into by them for the rent of the property for another year, and that this contract was breached by the defendant, the lessee, without sufficient cause, after he had occupied the premises for nine months under the new verbal contract; and that accordingly he was liable for rent for the three remaining months of the unexpired term, but as the plaintiff, for some reason not disclosed in the record, sued for two months rent only, the trial judge, exercising the functions of both judge and jury, properly gave judgment for that amount only.

3. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Hodges, J., absent.


text:
    7447.
    Teat v. Westmoreland.
    Decided December 8, 1916.
    Certiorari; from Franklin superior court—Judge Worley. March 28, 1916.

      Adams & Johnson, for plaintiff in error.

      Dorough & Adams, contra.
   Broyles, J.

1. A running open account, the items of which have all matured at the time of the suit, can not be divided into separate parts for the purpose of bringing each part within the jurisdiction of a justice’s court, without the consent of the-defendant; but where such an account is divided into three parts, or rather where, at the request of the defendant and for his convenience (he wanting separate accounts kept of what . his son and two hands got), three separate accounts against him are kept on the books, and these accounts, amounting in the aggregate to more than one hundred dollars, are sued on in three separate actions brought simultaneously in the same court and duly served, and the defendant makes no express objection, by pleading or otherwise, to the severance of the account, until after one of the suits has proceeded to a judgment, but, on the contrary, files on the same day at the appearance term a plea of the general issue in each of the three suits (no other plea whatever being filed in any of the suits until after the rendition of the judgment in the first suit), he is estopped thereafter on the trial of the remaining two suits from filing a plea to the jurisdiction of the court, or a plea of former adjudication. This is true although the aggregate amount sued upon in the two remaining suits is more than one hundred dollars. Parris v. Hightower, 76 Ga. 631; McDonald v. Tison, 94 Ga. 549 (20 S. E. 427).

2. Under the facts of the case, after one of the three suits had proceeded to a judgment, it was too late, on the trial of the two remaining suits, to question the jurisdiction of the court or to plead former adjudication, and the justice of the peace erred in sustaining such pleas. The judge of the superior court did not err in sustaining the certiorari and in remanding the eases to the justice’s court for trial upon their merits, with instructions to strike the amended pleas to the jurisdiction of the court. Judgment affirmed.

Hodges, J., absent.


author: Hill, J.

text:
    7476.
    Walker v. Mayor and Council of the City of Macon.
    Decided December 8, 1916.
    Judge Hill, of the Atlanta Circuit, was DESIGNATED TO SIT INSTEAD OF JUDGE HODGES, WHO WAS DISQUALIFIED.
    Decided December 8, 1916.
   Hill, J.

The allegations of the petition showed that if any right of action existed, it was in another than the plaintiff; and therefore the court did not err in sustaining the demurrer and dismissing the petition.

Judgment affirmed.

Action for damages; from the city court of Macon—Judge Hodges. April 8,1916.

This action was for damages on account of incorrect measurement, laying off, and marking of land of the plaintiff at a street corner by the city engineer. From the petition it appeared that the plaintiff sold the land before the suit was brought.

B. L. Berner, for plaintiff. W. D. McNeil, for defendant.


text:
    7495.
    BOSTWICK-GOODDELL CO. v. WOLFF et al., executors.
    Where the promissory note of a merchant was sent through a bank for collection, and he wrote to the original payee, enclosing a new note for the amount due and requesting the payee to “help him along and let him keep going,” and to send him a check in time to pay the first note, and a check was accordingly sent to him with the statement that it was sent to “take care” of that note, and he deposited the check in bank to his credit, the amount so received constituted a trust fund or special bailment for the purpose specified; and the deposit was not subject to garnishment by other creditors, it not being disputed that the sum standing to the depositor’s credit in the bank was money arising from the deposit of the check.
    Decided December 8, 1916.
    Judge Hill, of the Atlanta Circuit, was DESIGNATED TO SIT INSTEAD OF JUDGE HODGES, WHO WAS DISQUALIFIED.
    Garnishment; from city court of Macon—Judge Hodges. April 28, 1916.

      W. B. Martin Jr., for plaintiff.

      Hardeman, Jones, Parle & Johnston, Harry S. Btrozier, contra.
   Hill, J.

Artope, doing business as the Southern Material Supply Company, executed to the Bostwick-Gooddell Company a promissory note for $232.85. This note was sent by the Franklin National Bank of Philadelphia to the American National Bank of Macon for collection, and the latter bank duly notified Artope of the date of its maturity. After receipt of this notice Artope wrote to the Bostwick-Gooddell Company that he would be unable to pay the note, and asked the company to “help him along and let him keep going/5 and he enclosed in the letter a new note for the amount of the first note with interest, and requested the company to send to him its check for $232.85 in time to pay the first note. The Bostwick-Gooddell Company complied with this request, a check payable to the Southern Material Supply Company being sent with a letter saying: “Agreeable to yours of the 27th, we enclose check for $232.85 for you to take care of your note due February 5th.” This letter did not reach Artope until after the first note became due, and the note was protested by the bank in Macon and returned to the Franklin National Bank in Philadelphia. The check was deposited by him in the American National Bank to the general checking account of the Southern Material Supply Companjr, and on the day of the deposit he sent to the Bostwick-Gooddell Company a check of the Southern Material Supply Company for $234.85, to cover the amount of the first-mentioned note, protest fees, and exchange. The holders of a judgment against Artope obtained garnishment thereon against the' American National Bank, and the bank answered that it was indebted to the Southern Material Supply Company in the sum of $197.49. This was the balance of the deposit made by Artope, represented by the check of the Bostwick-Gooddell Company; in other words, he had checked against this deposit, reducing it to $197.49. The Bostwick-Gooddell Company claimed this fund, traversing the answer of the bank. On the trial of the issue thus formed, the court found against the traverse and the claim made by the Bostwick-Gooddell Company, and entered judgment in favor of the plaintiffs for the amount held by the bank, and the Bostwick-Gooddell Company excepted.

We think the trial judge erred in the judgment so rendered. The sending of the check by the Bostwick-Gooddell Company to Artope was for the special purpose of taking up the note which he had made to that company in 'the name of the Southern Material Supply Company, and it constituted a special bailment for this purpose. While Artope deposited this check in his trade name, yet it is perfectly manifest from the allegations in the pleading, which were not denied, that he had no claim against this fund and had no right to deposit it in his own checking account. Artope having no right to any part of this fund, it could not be, either legally or equitably, appropriated, by the process of garnishment, to the payment of his debts. The note having been returned protested for nonpayment, it was his duty to return to the Bostwick-Gooddell Company the cheek which that company had sent to him for the purpose of paying the note. He had no legal right to keep the cheek, and certainly no right to appropriate it to his own use. The money represented by the check was in no sense a loan, but strictly a trust fund for the purpose of permitting him to pay his note to the maker of the check, in compliance with his request, in order that the business conducted by him under'the name of the Southern Material Supply Company might be kept going. He was simply a trustee to hold it for the benefit of the Bostwick-Gooddell Company. Garnishment is substantially an equitable attachment, and no change in-the form of the trust property will prevent the beneficiary from reaching it, if it has not been so commingled with other money or property that it can not be identified as a distinct fund, or specifically separated. In the present case it is not disputed that the money in the hands of the bank was the money arising from the deposit of the check which Artope had received as a special bailee. For this reason we think the learned trial judge committed error in holding in effect that the garnishing creditors of Artope were entitled to this fund. Judgment-reversed.


text:
    7540.
    Webb Cotton Company v. Gordon.
   Broyles, J.

1. “Reasonable definiteness and certainty in pleading is all that should be required; and factitious demands by special demurrer should not be encouraged.” Busby v. Marshall, 3 Ga. App. 764 (60 S. E. 376).

2. The only assignment of error referred to in the brief of counsel for the plaintiff in error is based upon the overruling of the special demurrer which attacked the 6th paragraph of the petition as amended, on the ground that the statement of the account attached thereto as exhibit “A” did -not sufficiently itemize and specify the marks, the numbers, the weights, or the prices of the bales of cotton therein referred to. The record shows that the information called for by this demurrer was with reference not to the debit items in the plaintiff’s account, but to items credited to the defendant. The bill of particulars, as shown by the amendment to the petition, clearly disclosed to the defendant that it was credited with the proceeds of 86 hales of cotton; and the aggregate amount of the proceeds was given. It was unnecessary for the petition to set forth all the minute details as to mark, number, weight, and price of each of the 86 bales of cotton, especially since this identical cotton had been shipped to the plaintiff by the defendant itself. Under such circumstances it does not appear that the absence of these details from the petition in any way prevented or hindered the defendant from setting up its defense. There was no error in overruling the demurrer,

Decided December 8, 1916.

Complaint; from city court of Yaldosta—Judge Cranford. April 14, 1916.

O. M. Smith, for plaintiff in error.

George E. Simpson, E. E. Wilcox, contra.

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

Judgment affirmed.

Hodges, J., absent.


author: Brotles, J.

text:
    7626.
    Southern Railway Co. v. Waxelbaum Produce Co.
   Brotles, J.

1. The amendment objected to did not set forth a new cause of action; nor did it attempt to set up in the same action the common-law liability of the carrier and the statutory liability of the last connecting carrier. The petition as amended showed that the action was based solely on the common-law liability of the carrier. It is essential, in a suit brought under the provisions of section 2752 of the Civil Code of 1910, to allege that the last carrier received the goods “in good order;” and when no such allegation is made, the action will be construed as being based upon the carrier’s common-law liability, and not upon the statute. Central of Georgia Ry. Co. v. Jones, 7 Ga. App. 165 (66 S. E. 492) ; Hartwell Ry. Co. v. Kidd, 10 Ga. App. 771 (74 S. E. 310) ; Western & Atlantic Railroad Co. v. Exposition Cotton Mills, 81 Ga. 522 (2), 527 (7 S. E. 916, 2 L. R. A. 102). In this case the petition contained no such allegation. The original petition did not show that the shipment was an interstate one over the lines of several carriers, and that the defendant was the last carrier. By the amendment objected to the plaintiff alleged that the shipment was an interstate one “over several connecting carriers,” and that it was delivered to the defendant as the last of these carriers. This amendment did not set out a new cause of action. Central of Georgia Ry. Co. v. Jones, supra.

2. The petition as amended was not duplicitous, it declaring upon the common-law liability of the defendant, and showing that the suit was based, not upon a tort, but upon an implied contract.

3. There was no error in overruling the ground of the demurrer which set up that under the Federal statute as to interstate shipments the initial carrier alone could be sued. Ga., Fla. & Ala. Ry. Co. v. Blish Milling Co., 241 U. S. 190 (36 Sup. Ct. 541, 60 L. ed. 948); Central of Georgia Ry. Co. v. Waxelbaum Produce Co., 18 Ga. App. 489 (89 S. E. 635).

4. There was no error in overruling all the demurrers interposed to the petition as amended

5. Under numerous rulings of this court, the exception to the refusal to grant a nonsuit will not be considered, since thereafter the case proceeded to a verdict in favor of the plaintiff, and one of the grounds of the motion for a new trial, to the overruling of which exceptions were taken, was that the verdict was c'ontrary to the evidence and without evidence to support it.

6. The verdict was not contrary to law because the bill of lading introduced in evidence by the plaintiff was issued by the Mobile & Ohio Railway .Company, the initial carrier of the shipment, while the implied contract declared upon was with the Southern Railway Company, the defendant. This bill of lading evidenced a' contract between the Mobile & Ohio Railway Company and the Fruit Dispatch Company, and not between that railway Company and the plaintiff. The bill of lading further shows that the contract was not a “through” one (i. e. to deliver at the destination beyond the line of the carrier), but was merely for delivery to the next connecting carrier, and therefore was a “limited” contract. Accordingly, there was an express contract by the initial carrier, and an implied contract on the part of each subsequent connecting carrier when it received the shipment; and hence the plaintiff had the right to bring a suit, either ex contractu or ex delicto,, against the carrier responsible for the damage to the shipment (Georgia, Florida & Alabama Ry. Co. v. Elliott, 3 Ga. App. 773 (60 S. E. 363), and cases cited), and he elected to bring it éx contractu. The bill of lading was admissible, not as basis of the suit, but to show that the defendant was the last carrier, so that the plaintiff couM obtain the benefit of the presumption, arising in such suits, of the common-law liability of the carrier, that it received the shipment in good order; and further, to show that the defendant, and not the Central of Georgia Railway Company, was the last carrier of the shipment.

8. The provisions of the “Carmack amendment” of June 29, 1906 (34 Stat. 393, e. 3591, § 7, pars. 11, 12), to the act of February 4, 1887 (24 Stat. 379, c. 104, § 20, pars. 11, 12, Comp. Stat. 1913, § 8592), making the initial carrier liable for damage occurring anywhere en route, with a remedy over against the carrier at fault, do not relieve a terminal carrier from liability for damaging an interstate shipment. Georgia, Florida & Alabama Ry. Co. v. Blish Milling Co., supra. See also Western & Atlantic Railroad Co. v. White Provision Co., 142 Ga. 246 (82 S. E. 644), and Central of Georgia Ry. Co. v. Waxelbaum Produce Co., supra. Under this ruling the last carrier of an interstate shipment may be sued on its common-law liability. All three of the cases just cited were suits upon the common-law liability of the terminal carrier.-

7. There was no material error in any of the rulings excepted to as to the admissibility of evidence.

9. Under all the other facts of the case, the fact that after the arrival of the shipment in Macon over the line of the Southern Railway Company it was delivered to the consignee by the Central of Georgia Railway Company did not make the latter company the last carrier of the shipment. Western & Atlantic Railroad Co. v. Exposition Cotton Mills, and Central of Georgia Ry. Co. v. Jones, supra.

10. There was sufficient evidence to authorize the trial judge, exercising the functions of both judge and jury, to find that an unusual and unnecessary delay in the transportation and delivery of the shipment occurred on the line of the defendant, and, in connection with the unrebutted presumption that the final carrier received the shipment in good order, to find that the damage to the shipment was caused by this delay. The evidence also authorized a finding that the Central of Georgia Railway Company, in delivering the' shipment, was merely the agent of the defendant, the final carrier named in the bill of lading, and that, even if the delay occurred entirely on the line of the Central of Georgia Railway Company, the defendant was liable therefor.

Decided December 8, 1916.

Action for damages; from municipal court of Macon—Judge Chambers. June 17, 1916.

Harris, Harris & Witman, for plaintiff in error.

Hardeman, Jones, Parle & Johnston, Harry 8. Strozier, contra.

11. The verdict was warranted by the evidence.

Judgment affirmed.

Bodges, J., absent.


author: Wade, C. J.

text:
    6906.
    Hawkins v. The State.
    Decided December 11, 1916.
    Indictment for misdemeanor; from Terrell superior court— Judge Worrill. May 26, 1915.

      Yeomans & Wilkinson, for plaintiff in error. B. T. Oastlellow, solicitor-general, B. B. Arnold, L. O. Hoyl, W. H. Gurr, contra.
   Wade, C. J.

1. Section 3 of the act of 1913 entitled “An Act to better regulate and control the organization and operation of corporations (foreign and domestic) doing an industrial, health, life, or accident insurance business in the State of Georgia, and to provide penalties, and for other purposes” (Acts 1913, p. 98), is unconstitutional and void because it contains matter different from what is expressed in the title of the act. This section “has reference to outsiders who make or aid in making fraudulent claims against insurance companies in the manner pointed out, while the title only covers the subject of regulation and control of the organization and-operation of certain corporations. The one can not be included in the other, and each refers to separate subject-matters.” Hawkins v. State, 146 Ga. 134 (90 S. E. 968).

2. Under the foregoing ruling of the Supreme Court, the trial judge erred in striking the special plea bringing into question the constitutionality of section 3 of the said act, under which the accused was indicted; and since the plea was good, and, under the said ruling of the Supreme Court, the indictment charged no offense against the laws of Georgia, the conviction of the accused was not authorized; and what occurred after the striking of the plea need not be considered. The judgment overruling and striking the said special plea is

Reversed.

Bodges, J., absent.


text:
    6925.
    Jones v. The State.
    Decided December 11, 1916.
    Accusation of misdemeanor; from city court of Floyd county— Judge Eeece. September 14, 1915.

      L. E. Covington, for plaintiff in error.

      C. E. Porter, solicitor, contra.
   Wade, C. J.

1. Under the answer of the Supreme Court to the questions certified in this case, there is no merit in the ground of the motion in arrest of judgment on a conviction of larceny from the house, upon an accusation drawn under section 175 of the Penal Code (1910), in which the judgment is attacked for the reason that the said section fails to prescribe any penalty for its violation. “Larceny from the house, as defined in the Penal Code (1910), § 175, is punishable as prescribed in the Penal Code, §§ 177, 178, and 179.” Jones v. State, 146 Ga. 187 (91 S. E. 67).

2. The decisions of the Supreme Court are binding upon the Court of Appeals as precedents, and while this court may not, with less than a full bench, set aside its previous ruling, the ruling stated in the second headnote in the case of Jenkins v. State, 13 Ga. App. 695 (79 S. E. 861), will not be followed, since the holding of the Supreme Court on the precise point covered thereby is in direct conflict therewith.

3. The second ground of the motion in arrest of judgment will not be considered, as it seeks only to raise a question as to the sufficiency of the allegations of the indictment, which should have been presented by demurrer. Judgment affirmed.

Hodges, J., absent.


text:
    7039.
    Parker v. The State.
   Wade, C. J.

1. In answer to a question certified by this court in this case, the Supreme Court holds: “Where a judge presiding in the trial of a criminal case is related to the defendant within the fourth degree of consanguinity, and neither the defendant nor his counsel has knowledge of the existence of such relationship until after the trial, the mere fact that such relationship existed will not require the grant of a new trial.” Parker v. State, 146 Ga. 131 (90 S. E. 859).

2. ‘ Only a full bench can set aside a previous ruling of this court, but, under the above ruling of the Supreme Court on the precise question involved, the holding in Olliff v. State, 1 Ga. App. 553 (57 S. E. 941). to the contrary effect, will not be followed, since the decisions of the Supreme Court are binding upon the Court of Appeals as precedents.

3. Where a new trial is sought on the ground that one of the jurors .who rendered the verdict expressed an opinion before the trial, as to the guilt of the accused, the trial judge occupies the place of a trior; and this court will not reverse a finding that the juror was impartial, unless under all the facts- it appears that the discretion of the trial judge was abused.

Decided December 11, 1916.

Accusation of sale of liquor; from city court of Sylvania—Judge T. J. Evans. October 1, 1915.

J. IF. Overstreet, M. B. Lufburrow, for plaintiff in error. ,

A. B. Lovett, solicitor, contra.

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

Judgment affirmed.

Hodges, J., absent.


text:
    7316.
    Evans v. The State.
    Decided December 11, 1916.
   Wade, C. J.

1. There is no substantial merit in the ground of the motion • for a new trial which complains that the court instructed the jury that the indictment charged the defendant with breaking, entering, and carrying away a certain sum of money, whereas the allegations in the indictment were that the defendant did break and enter, etc., “with intent to commit a larceny, the said intent being then and there to take and carry away, with intent to steal the same, five hundred dollars in .money of the value of-five hundred dollars of the personal goods,” etc. Since the acts charged in the indictment were punishable under section 146 of the Penal Code, this slight inaccuracy in the charge was not harmful to the accused.

2. This court certified to the Supreme Court, in this case, the following question: “Would testimony showing that one was detected after breaking into the office of a gin-house (not used as a dwelling-house), with his head and ' a part of his body in the window, and with one hand inserted in the cash drawer and clutching a bag containing money, but was then interrupted and thereby prevented from carrying into effect an apparent intention to steal, tend to support a charge of burglary, under section 146 of the Penal Code of 1910, or would such proof be sufficient to show only a violation of section 179 of the Penal Code? See White v. State, 7 Ga. App. 596 [67 S. E. 705].” In answer the Supreme Court said that “testimony showing a breaking and entering by an offender into the office of a gin-house of another, not used as a dwelling, with one hand of the offender inserted in the cash drawer and clutching a bag containing money, but that the offending person was then interrupted and thereby prevented from carrying into effect an apparent intention to steal, would support a charge of burglary under section 146, but would not support a charge of misdemeanor under section 179.” Evans v. State, 146 Ga. 98, 101 (90 S. E. 743). It is therefore apparent that there is no merit in the 2d special ground of the motion for a new trial.

3. The evidence supports the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

Hodges, J., absent.

Indictment for burglary; from Floyd superior court—Judge . Wright. February 16, 1916.

William 0. Henson, for plaintiff in error.

W. H. Ennis, solicitor-general, contra.


author: Beoyles, J.

text:
    7457.
    Bacon et al. v. Hanesley.
   Beoyles, J.

1. An instrument in which title to personal property is retained in the vendor until payment of the purchase-price, and which contains also a stipulation that it is a mortgage upon the property, should be construed as a retention-of-title contract only. The provision as to its being a mortgage is invalid. The vendor and the vendee can not by agreement make the paper one both retaining title and not retaining title to the same property. Smith v. DeVaughn, 82 Ga. 574 (9 S. E. 425); Pitts v. Maier, 115 Ga. 281 (41 S. E. 570); Winn v. Tyner, 139 Ga. 765 (78 S. E. 185). Any contrary holding in Kennedy v. Manry, 6 Ga. App. 816 (66 S. E. 29), Mitchell v. Castlen, 5 Ga. App. 134 (62 S. E. 731), and Puett v. Edwards, 17 Ga. App. 645 (88 S. E. 36), will not be followed, as this court is bound by the ruling in Smith v. DeVaughn, supra, it being the oldest adjudication on the subject, and having never been overruled or modified, but on the contrary expressly approved by the Supreme Court in several subsequent decisions.

(a) Where the same instrument retains title to the property and also stipulates that it is a mortgage upon the property, and the vendor subsequently forecloses the “mortgage” and has the property sold, the entire foreclosure proceedings are a mere nullity, the instrument not being in fact or in law a mortgage. Berry v. Robinson, 122 Ga. 575 (50 S. E. 378) ; Puett v. Edwards, supra. The foreclosure proceedings, being a nullity and absolutely void, did not amount to a rescission of the contract of sale on the part of the vendor, and did not prevent or estop him from thereafter bringing suit upon the retention-of-title note to recover the purchase-price of the property.

2. Only as against third parties must a retention-of-title contract be probated and recorded. As between the parties themselves and persons who have notice, the reservation of title is good whether recorded or not. American Book Co. v. Brunswick Co., 12 Ga. App. 259 (77 S. E. 104); Tremere v. Barfield, 12 Ga. App. 774, 777, 778 (78 S. E. 729). The phrase “third parties,” as used in section 3318 of the Civil Code, means siich creditors as have secured a lien upon the property. John Deere Plow Co. v. Anderson, 174 Fed. 815 (98 C. C. A. 523, 23 Am. B. R. 480); Central Trust Co. v. Marietta & North Georgia Ry. Co., 48 Fed. 868 (1 C. C. A. 133). In this ease the defendants’ pleas alleged that the title-retention note given for the purchase-price of personal property was executed several months after the sale of the property. This note was signed by the purchaser of the property, B. W. Bacon, as principal, and by J. E. Bacon as surety. It was not exeeuted in the presence of the vendor or of any witness, and was afterwards delivered in this condition to the vendor by the makers. The note, not having been properly probated, was not entitled to record; and the makers of the note, having delivered to the vendor (the payee) a note so improperly executed by them that it could not be recorded, are estopped in good conscience and in law from thereafter pleading that it was the duty of the payee to have the note recorded. The makers of the note, including the surety thereon, under such circumstances, can not derive any advantage from such sC plea. If the risk of the surety was in any way increased by the failure to record the paper, it was due to his own act and the act of his principal in executing and delivering to the vendor such an imperfect note that it could not be recorded. Under these particular facts this ruling is not in conflict with rulings in Toomer v. Dickerson, 37 Ga. 428, Nance v. Winship Machine Co., 94 Ga. 649 (21 S. E. 901), Cloud v. Scarborough, 3 Ga. App. 7 (59 S. E. 202), and Cordele Grocery Co. v. Thigpen, 4 Ga. App. 643 (62 S. E. 97).

Decided December 11, 1916.

Complaintfrom city court of Amerieus—Judge Harper. April 17, 1916.

Wallis & Fort, for plaintiffs in error.

James A. & John A. Fort, B. L. Maynard, contra.

3. Where notice as to intention to sue in a city court for attorney’s fees has been given as required by section 4252 of the Qivil Code, such fees may be recovered in an action in that court, although at the time of the giving of the notice a suit was pending in the superior court of the county on the same note, the latter suit being dismissed after the giving of the notice that the action would be brought in the city court.

4. Under the' foregoing rulings, the court did not err in sustaining the demurrers to the defendants’ answers and pleas, and in striking the pleas.

5. There was no error in directing a verdict for -the plaintiff for the full amount sued for. Judgment affirmed.

Hodges, J., absent.


text:
    7471.
    Wheeless v. Rowan.
    Decided December 11, 1916.
   Broyles, J.

1. The pleadings were sufficient to authorize the recovery of attorney’s fees.

2. The verdict was authorized by the evidence.

3. An error of computation in the amount of the judgment rendered is plainly apparent, and, exercising the right vested in this court to give such order and direction in a cause as is consistent with the law and justice appertaining thereto, we affirm the judgment upon condition that the plaintiff write off from the judgment $29.65 as to the interest and $8.76 as to attorney’s fees.

■Judgment affirmed on condition.

Hodges, J., absent.

Complaint; from city court of Nashville—Judge Christian. April 10, 1916.

William Story, for plaintiff in error.


text:
    7474, 7498.
    Campbell v. Southern Fertilizer and Chemical Company; and vice versa.

    Decided December 11, 1916.
   Broyles, J.

1. Upon tlie previous appearance of this ease before this court (Campbell v. Southern Fertilizer & Chemical Co., 17 Ga. App. 759, 88 S. E. 412), the following ruling was made: “The only assignment of error being as to a judgment sustaining a general demurrer to the defendant’s answer, and it not appearing that there was any final judgment in the case, under repeated rulings of this court and of the Supreme Court, the bill of exceptions embraces matter of an interlocutory character only, and is prematurely brought to this court.” The writ of error .was thereupon dismissed. In due course the judgment of this court was made the judgment of the court below, and a verdict was directed for the plaintiff and judgment rendered in its favor. Subsequently the trial judge, on motion of the defendant, allowed a copy of the dismissed bill of exceptions to be filed in the instant proceedings as exceptions pendente lite, although no such permission or direction had been given by this court. While it is within the discretion of the reviewing courts, in exceptional cases, upon a meritorious showing, to grant leave for a copy of a premature bill of exceptions to be filed as exceptions pendente lite in the court below, the judge of the lower court has no such right or discretion, and can not vary the plain and unambiguous provisions of the Civil Code, § 6154, as to the time of the filing and certification of exceptions pendente lite. It was therefore error for the trial judge to allow a copy of the bill of exceptions to be so filed, over the timely objections of the plaintiff in the court below.

2: Under the foregoing ruling, there were no valid exceptions pendente lite to the judgment sustaining the demurrer to the defendant’s answer; and, accordingly, that judgment is not brought under review.

3. After the demurrer to the defendant’s answer had been sustained and the answer stricken, there was no error in directing a verdict for the plaintiff and in entering judgment thereon.

4. This court sees no merit in the main bill of exceptions, and would grant the prayer of the defendant in error for damages were it not for the thought that possibly the action of the trial judge in allowing a copy of the dismissed bill of exceptions to be filed as exceptions pendente lite, was sufficient cause for the plaintiff in error to think that there might be some merit in his bill of exceptions.

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

Sodges, J., absent.

Complaint; from city court of Ilazlehurst—Judge Grant. April 17, 1916.

S. D. Dell, for plaintiff in error. Gordon Knox, contra.


author: Bboyuss, J.

text:
    7483.
    Patterson v. Burroughs.
    Decided December 11, 1916.
    Appeal; from Chatham superior court—Judge Charlton. April 20, 1916.

      W. B. Stubbs, G. N. Alford, for plaintiff in error.

      John Z, Ryan, William M. Farr, contra.
   Bboyuss, J.

1. Under the particular facts of this case the court erred in overruling the motion of. the plaintiff in error to amend the brief of evidence by referring to and attaching thereto a certain receipt and a certain policy of insurance, both of these documents having been introduced as evidence upon the trial, and used by counsel for both parties during the argument of the motion for a new trial; although the motion to amend was made after the brief of evidence had been agreed upon by counsel, approved by the court; and ordered filed as part of the record, and after the motion for a new trial had been denied.

2. The receipt and the insurance policy mentioned above being attached as exhibits “A” and “B” respectively to the motion to amend the brief of evidence, and that motion having been transmitted-to this court as a part of the record in the ease, this court will grant the prayer of the plaintiff in error and amend the brief of evidence by attaching thereto the receipt and the policy of insurance. A consideration of these documents is necessary for a clear understanding of the errors complained of.

3. The charges complained of in the 4th, 5th, 6th, and 7th grounds of the amendment to the motion for a new trial are erroneous, for the reason that they are not supported by any evidence in the case. The excerpt from the charge excepted to in the 6th ground is erroneous for the additional reason that it submitted to the jury the question whether, under the circumstances, the defendant was protected as to his insurance for a year. This was a question of law and should not have been submitted to the jury.

4. There was acute conflict between the testimony of the parties in the ease, and, while the jury had the exclusive right to settle this matter for themselves, they might have decided otherwise had it not been for the errors in the charge of the court. As a new trial must be granted on account of these errors, it is unnecessary to pass on the other questions in the case. Judgment reversed..

Bodges, J., absent.


text:
    7486.
    Strickland v. Brown.
    Decided December 11, 1916.
    Motion to stay execution; from city court of Statesboro—Judge T. L. Hill presiding. April 12, 1916.

      Anderson & Jones, for plaintiff.

      Strange & Metis, for defendant.
   Broyles, J.

1. A bankrupt discharged after judgment against him in a State court in an action brought while the bankruptcy proceedings were pending is entitled to a perpetual stay of the execution on the judgment, although he did not before the rendition of the judgment ask for a stay of the proceedings in the State court. If the discharge of the bankrupt had been granted before the judgment was rendered, the ruling would be otherwise. Boynton v. Ball, 121 U. S. 457 (7 Sup. Ct. 981, 30 L. ed. 985, 3 R. C. L. 318, 319); Cavanaugh v. Fenley, 94 Minn. 505 (103 N. W. 711, 110 Am. St. R. 382); Gregory v. Cale, 115 Minn. 508 (133 N. W. 75, 37 L. R. A. (N. S.) 156) ; Collier on Bankruptcy (10th ed.), 405 b, 405 c.

2. Under the foregoing ruling the court did not err in overruling the demurrers to the petition for a stay of the execution, and in passing an order pei'petually staying the same.

Judgment affirmed.

Bodges, J., absent.


text:
    7490.
    Tindol v. Breedlove, administrator.
   Broyles, J.

1. While a married woman can not bind her separate estate by any contract of suretyship (Civil Code, § 3007), yet she may extinguish the debts of her son, or cause them to be extinguished, on her own credit, as an original undertaking, with a mortgage upon her property as security for the performance of her own contract. Freeman v. Coleman, 86 Ga. 590 (12 S. E. 1064) ; Finch v. Barclay, 87 Ga. 393 (13 S. E. 566). A mortgage given by a married woman to a creditor of her son, in extinguishment of a debt of the son, is valid. Villa Rica Limber Co. v. Paratain, 92 Ga. 370 (17 S. E. 340).

2. There was sharp conflict in the evidence as to whether the married woman in this case was merely a surety for her son’s debt, or whether the mortgage note sued upon was executed by her as an original undertaking on her part to pay off her son’s indebtedness. The jury, under the charge of the court, found that she was merely a surety. In this connection the plaintiff excepted to the following charge of the court: “Where a married woman signs a note or pledge, or mortgages her property for a consideration that moves to a third person, she or her estate receiving no benefit, she will be regarded as a surety; and if she is so regarded, and the jury believes that she was a surety, she would not be bound upon the contract, and it would be the duty of the jury to find in favor of the defendant in this case.” This instruction

Decided December 11, 1916.

Complaint; from city court of Dublin—Judge Hicks. April 10, 1916.

T. E. Hightower, for plaintiff. J. 8. Adams, for defendant.

was incorrect, and, under the facts of the case, was practically a direction to find for the defendant. On account of this error a new trial must be granted. Judgment reversed.

Hodges, J., absent.


text:
    7497.
    Central Trust Company v. Morris.
    Decided December 11, 1916.
    Complaint; from city court of Beidsville—Judge Collins. September 25, 1916.

      H. C. Beasley, Miller & J ones, for plaintiff.

      B. H. Burroughs, P. M. Anderson, A. L. Basher Jr., for defendant.
   Broyles, J.

1. Under all the evidence submitted, the jury were authorized to find that the plaintiff was not a bona fide purchaser of the note sued upon, for value and before maturity.

2. The jury having determined (as is shown by their verdict) that the plaintiff was not such a bona fide purchaser of the note sued upon, they were authorized to find, from the evidence adduced, that the defendant had a good defense to the suit. Accordingly, the verdict in favor of the defendant was not contrary to law or to the evidence.

3. The various excerpts from the charge of the court excepted to, when considered in the light of the entire charge and the facts of the case, do not contain any reversible error.

Judgment affirmed.

Hodges, J., absent.


text:
    7508.
    GATEWOOD et al. v. FURLOW, adm’r, et al.

    Where an administrator of an estate deposits funds of the estate in a bank of good standing which subsequently fails, and the funds are thereby lost, he is prima facie liable for tlio same, unless the funds were deposited in the name of the administrator of the particular estate to which the funds belonged; as “John Jones, administrator on the estate of John Doe, deceased,” or words of similar import. Where the fund is deposited in the name of “John Jones, administrator,” the administrator is prima facie individually liable for the loss of the money; and a petition by the heirs at law of the estate, setting up such facts, where the administrator is sued for a recovery of the money lost, is not subject to general demurrer.
    Decided December 11, 1916.

      Complaint; from city court of Americus—Judge Harper. April 14, 1916.

      James A. & John A. Fort, for plaintiffs.

      B. L. Maynard-, E. A. Eawhins, for defendants.
   Broyles, J.

E. D. Gatewood and others brought suit against T. M. Eurlow as administrator on the estate of Mrs. Julia Gate-wood, deceased, and the surety of his bond as such administrator, alleging that Eurlow and the surety Avere liable to them, as heirs at law of Mrs. Julia Gatewood, in the sum of $1,400, by reason of the fact that Eurlow, as such administrator, deposited the funds of the estate, Avhich came into his hands, in the Americus National Bank; that subsequently the bank failed, and that at the time of the failure there was deposited in the bank $1,400 belonging to the estate, in the name of “T. M. Furlow, adm’r,” without indicating that this fund belonged to the estate of Mrs. Julia Gate-wood. The defendant demurred to the petition, upon the ground that it did not set forth a cause of action. The court sustained the demurrer, and the plaintiffs excepted. The plaintiff in error contends that the deposit of the funds of the estate in the bank in the name of “T. M. Eurlow, adm’r,” was in law nothing more than a deposit in the name of Eurlow individually; that the letters “adm’r,” added to the name of Eurlow, were merely descriptio personce, and did not indicate that the funds so deposited in the bank were the funds of the particular estate of Mrs. Gatewood, and that on account of such deposit arid the loss' of the same, occasioned by the failure of the bank, the administrator and the surety on his bond were liable to the heirs at law of Mrs. Gatewood for, that amount.

Section 3570 of the Civil Code is as follows: “An instrument signed by one as agent, trustee, administrator, executor, or the like, without more, is the individual undertaking of the maker, such Avords being generally words of description.” This section of the code, however, deals with the relation of principal and agent, and the liability of a person who executes an instrument and adds to his name the word “agent,” “trustee,” “administrator,” etc. In our opinion this section of the code is not applicable to the question presented in the instant ease; for here there was no instrument executed by Eurlow. It is upon the theory of conversion that an administrator is held liable for depositing funds of the estate in his individual name (Summers v. Reynolds, 95 N. C. 404); and in Munnerlyn v. Augusta Bank, 88 Ga. 333 (14 S. E. 554, 30 Am. St. R. 159), it was held that a deposit in a bank by a trustee of trust funds in his own name, as agent, was not a conversion. A distinction should be drawn as to the rule where an instrument is signed-by one as “agent,” “administrator,” or the like, and where the same words are used to indicate the nature of a bank deposit.It is clear that under section 3570, supra, if Eurlow had signed an instrument as “T. M. Furlow, adm’r,” it would have been his individual undertaking. In Dozier v. McWhorter, 117 Ga. 786 (45 S. E. 61), it was held, that “Prima facie a judgment in favor of E. J. D., executor of M. G., is his individual property, but this presumption may be removed by.slight evidence tending to show that he holds the same in trust for the estate;” and “evidence that the note on which the judgment issued was the property of the estate shifts the burden; and unless the same is met by a counter-showing, the jury may find that the beneficial ownership of the fi. fa. issued on such judgment is in the estate.” In the same case Mr. Justice Lamar further said: -“Where the maker of a note signs his name ‘executor,’ ‘administrator,’ or ‘trustee,’ he can not relieve himself of his individual liability and impose .the debt on the estate. The converse is only literally true, and the courts will readily lay hold of any fact to show that a paper payable to ‘A; executor, administrator, or trustee,’ is not his individual property. Prima facie it is; but where third persons attempt to trace funds, or to show that the holder of a paper thus payable had notice of its trust character, these words, instead of being ignored and treated as mere surplusage of descriptive merely of the person, are given full force and effect as imparting notice. And so, too, when the beneficiaries proceed against the payee so described) in an equitable proceeding like this, where the proceeds as well as the fi. fa. itself are involved (Saffold v. Banks, 69 Ga. 294; Fla. C. R. Co. v. Usina, 111 Ga. 698, 699 [36 S. E. 928]), these words go far to establish the fact that the- paper is held in his representative capacity.” It is the duty of a trustee or administrator to deposit money belonging to an estate in the name of that particular estate, or by so distinguishing it on the books of the bank as to indicate in some way that it is the money of that identical cestui que trust or estate. Chancellor v. Chancellor, 177 Ala. 44 (58 So. 423); Williams v. Williams, 55 Wis. 300 (12 N. W. 465, 42 Am. Rep. 708). When'the trustee or administrator fails to do this, the legal effect of such a deposit is to vest the title thereof in the bank and to establish the relationship of debtor and creditor between the bank and the administrator, prima facie, in his individual capacity. 2 Machie on Banks and Banking, 887, § 119 (2 b) et seq. As was said by Justice Cassoday of the Supreme Court of Wisconsin, in the much quoted case of Williams v. Williams, supra: “The test is not so much the keeping of a separate account at the bank as it is the parting with, and hence the losing of the identity of, the trust fund, and having in lieu thereof no obligation, contract, or account upon which is impressed the equitable ownership of the trust. Had this administrator retained these moneys in his own possession, and mingled them with his own funds so as to lose their identity, and the whole had been lost without his fault, yet we apprehend he would have been liable (Shoemaker v. Hinze, 53 Wis. 116 [10 N. W. 86]. . . To hold the administrator liable in this ease is undoubtedly a great hardship; but to exonerate him from liability is to encourage the mismanagement of trust funds and to open the door to frauds innumerable against those whose age and weakness entitle them to the most rigid protection of the law.” From what has been said it follows that the court erred in sustaining the general demurrer to the petition and in dismissing the petition. The question as to whether the administrator would have a good defense to this suit if he could show upon the trial of the case that at the time he deposited the estate’s fund in the bank, and up to the date of the bank’s failure, he had no other deposit in that bank, or if lie could otherwise clearly establish that the funds therein deposited were in fact and in truth the funds of the particular estate in question, is not in this case, and therefore is not passed upon. Judgment reversed.

Hodges, J., absent.


author: Beoxles, J.

text:
    7512.
    Empire Life Insurance Company v. Perkins.
   Beoxles, J.

The rulings made by this court in this ease when it was previously before us for review (Perkins v. Empire Life Ins. Co., 17 Ga. App. 658, 87 S. E. 1094), whether right or wrong, have become the law of the ease, and we are bound by them. Southern Bell Tel. Co. v. Glawson, 140 Ga. 507 (79 S. E. 136). Under the rulings there made, the trial judge did not err in excluding the testimony of the secretary of the defendant insurance company as set forth in the bill of exceptions, or in thereafter directing a verdict for the plaintiff. It appearing, however, that there was an error of computation as to the specific amount of the verdict directed, to the extent of $306.29 in excess of what should have been directed, it is ordered that this sum be written off from the verdict and judgment.

Decided December 11, 1916.

Action on insurance policy; irom city court of Savannah-Judge Davis Freeman. March 30, 1916.

Anderson, Gann, Gann & Walsh, Robert G. & Philip PL. Alston, for plaintiff in error. ' Osborne, Lawrence & Abrahams, contra.

Judgment affirmed, with direction.

Eodges, J., absent.


text:
    7524.
    White County Bank v. Ellison et al.

   Broyles, J.

1. There is no merit in the motion to dismiss the bill of. exceptions, on the ground that the plaintiff in error attempts thereby to bring' up two separate and distinct cases. It brings up merely two separate motions in the same case.

2. The record discloses the following undisputed facts: The White County Bank brought suit to the March term, 1916, of the city court of Jefferson, against J. M. Ellison and J. N. Brown as makers, and T. G-. and L. E. Underwood as indorsers, on a certain promissory note. The court convened in regular quarterly session on the second Monday in March, 1916, the 13th day of the month. On March 6, 1916, one week before the convening of the court, two of the defendants, viz., J. M. Ellison and J. N. Brown, the makers of the note, filed an answer to the suit, but this answer was not sworn to, as required by law in such a case. Prior to the convening of the court the trial judge made and published, under order of the court, a calendar of cases set for that term, in which order it was stated that the appearance docket would be called on Tuesday morning, March 14. Upon the call of the case on that date the court, on motion of counsel for plaintiff, struck the defendants’ answer, for the reason that it was not verified, and thereupon the court ordered that the ease proceed as in default. The plaintiff then submitted its case to a jury, and, after the introduction of evidence, the court directed a verdict for the plaintiff for the full amount sued for, and entered judgment for the same. A fi. fa. was issued by the clerk and placed on the general execution docket of the county. Subsequently, on the same day, counsel for the defendants appeared in court with one of his clients, attached a verifying affidavit to the answer, and filed a motion to vacate and set aside the verdict and judgment, and also made a motion for a new trial of the ease. The court granted both of these motions. This was the first grant of a new trial in the case. At the time when the appearance docket was called and the above-mentioned proceedings took place, counsel for the defendants was under leave of absence, granted by the court, on account of sickness. This leave of absence applied to all cases to which counsel’s name was marked on the docket, and his name- was so marked in this case, and his clients, the defendants, had been notified of such leave of absence. Reid: Under these facts it is not made to appear that the court erred in vacating and setting aside the verdict and judgment in the case and in granting a new trial, for the reason that the defendants’ unverified plea could have been amended when the case was reached on the call pf the appearance docket, and the plea should not have been stricken and the case tried while counsel for the defendants was under leave of absence granted by the court.

Decided December 11, 1916.

Complaint; from city court of Jefferson—Judge Mahaffey. April 3, 1916.

0. N. Davie, Ed. Quillian, for plaintiff.

W. W. Starlc, for defendants.

Judgment affirmed.

Rodges, J., absent.


text:
    7527.
    Jennings v. Lanham.
    Decided December 11, 1916.
   Broyles, J.

1. The fact that a cropper has a laborer’s lien on the crops raised by him and. is entitled to foreclose it does not prevent him from suing his landlord for the amount of the indebtedness due under his contract. The remedy given by sections 3334, 3366, and 3366 of the Civil Code of 1910 is not exclusive, and does not deprive a laborer of his common-law right to sue upon a contract, but is merely cumulative of that right. Doe v. Georgia R. Co., 1 Ga. 524.

2. When the relation of landlord and cropper exists, the landlord has the title to and control of the crops until all advances are paid (Civil Code, § 3705), but when a sufficiency of the crop has been turned over by the cropper to the landlord to pay all advances made by the landlord and leave a balance of the cropper’s portion in the hands of the landlord, the cropper is entitled to demand the balance due him from the landlord. Garrick v. Jones, 2 Ga. App. 382 (2) (58 S. E. 543), McElmurray v. Turner, 86 Ga. 215 (12 S. E. 359) ; Baker v. Purvis, 14 Ga. App. 718 (82 S. E. 251). The decision in Goodson v. Watson, 125 Ga. 413 (54 S. E. 84), under its particular facts, is not in conflict with this ruling.

3. It was not necessary for the cropper to allege in his petition that the landlord was insolvent. This was not an equitable proceeding, and where a full and complete remedy for the settlement of accounts can be had at law, equity is ousted of its jurisdiction. Osborn v. Ordinary, 17 Ga. 123 (63 Am. D. 230).

4. The petition set out a cause of action, and the court did not err in overruling the general demurrer interposed.

Judgment affirmed.

Rodges, J., absent.

Complaint; from city court of Blakely—Judge Sheffield. May 16, 1916.

Glessner & Collins, for plaintiff in error. L. M. Rambo, contra.


text:
    7643.
    BRYANT v. DICKERSON & ADAIR.
    The motion for a new-trial was based on the general grounds only, and since there was testimony to support the verdict, this court will not interfere with it.
    Decided December 11, 1916.
    Levy and claim; from Henry superior court—Judge Searcy. May 27, 1916.

      C. L. Redman, for plaintiff in error. E. M. Smith, contra.
   Wade, C. J.

Two mules were levied upon as the property of W. E. Mason, under an execution based upon a judgment against him in favor of Dickerson, obtained in April, 1915, and a claim to the property was interposed by Mrs. Bryant. The claim affidavit was made by the defendant, Mason, as "agent” for Mrs. Bryant, and her name was signed to the claim bond as principal “by W. E. Mason, agent.” On the trial the defendant in fi. fa. testified, that on November 7, 1914, he sold the mules levied upon to the claimant, the consideration being money which the claimant advanced to him to complete the payment of the purchase-price of the mules, and money previously borrowed by him from the claimant to make his crop during the year 1914; that on the same day the claimant sold the mules back to him, with a two-horse wagon and harness, taking therefor a retention-of-title note for $600, due October 1, 1915, as he had rented lands from the claimant, who was a sister of his wife, and expected to use the mules on her lands, where he lived during the year 1915, with the understanding that he was to keep and work them and make the money to pay the claimant what he owed her. The retention-of-title note was duly recorded November 14, 1914. So far as the record discloses, the claimant herself did not testify on the trial of the claim case, and there is nothing to indicate that she was even present at the trial, but seemingly the defendant in fi. fa. was the sole person interested for the claimant in the outcome of the trial, except the attorney who nominally at least represented her. It will be observed that while the defendant in fi. fa. testified that he "borrowed money from the claimant to pay for the mules, and that he also owed her money he borrowed from her to make his crop during the year 1914,” and further "that he had never paid claimant the money borrowed” (italics ours), and that the title to the mules was in the claimant "until he paid her the sum represented by the note as described,” he- did not testify how much money he borrowed from her to pay on the purchase-price of the mules; nor did he ever say how much money he had borrowed from her to make his crop during the year 1914, or what amount in fact hé was due the claimant when, according to his testimony, he sold her the two mules, and when she resold them to him; and while he asserted that he had never paid the claimant the money borrowed from her, and the title to the property was in her until payment of the $600 represented by the note, it does not appear from his evidence that he in fact then owed or ever owed her as much as $600, or whether the amount borrowed was one cent, $50, $100, or any other sum. Every word of testimony from him might be accepted as the literal truth, and yet the fact might be that the amount borrowed from' his sister-in-law was no more than five cents, or some other insignificant amount, which, added to ether funds, paid the balance of the purchase-price on the mules; and that only a like insignificant sum was borrowed from her to make his crop during the year 1914. If this was true, notwithstanding title was reserved by contract in her in the property re-conveyed to him, his testimony that the mules were her property “until he paid her the sum represented by the note as described,” would express merely a conclusion on his part, and a conclusion that would be erroneous; for, if the amount advanced by her to pay the balance due on the purchase-price of the property was, for instance, $1, and the further amount advanced to him by her to aid in making the crop was only $1, and thus the total amount that he owed her was only $2, the title to the property described in the retention-of-title note would, on payment of this amount, pass to him and be subject to executions against him, notwithstanding the note indicated an apparent indebtedness of $600 or other large sum. In other words, the statement that the title to the mules was vested in the claimant until payment of the amount apparently due by the terms of the note is inaccurate, as such title would only remain in her until payment of the amount that the debtor actually owed her.

As already pointed out, there is not one word of testimony from the defendant in fi. fa., or elsewhere in the record, that shows or tends to show what amount he actually owed the claimant, either at the time the retention-of-title note, upon which the claimant rested her right to recover, was executed, or at the day of the trial.

A claim case is in the nature of an equitable proceeding, and, where transactions between relatives are under review, slight circumstances are often sufficient to induce belief on the part of a jury that there was fraud or collusion between the parties, and authorize them to find against the claimant and in favor of the plaintiff in fi. fa. A claimant must, generally speaking, come into court with hands unstained by any suggestion' of collusion with the defendant in fi. fa. to defeat or defraud the creditors of the latter; and a claimant who fails to make a clear showing of both legal and moral right to the property in dispute must generally suffer the loss thereof at the hands of a jury, if there be any circumstances in proof, even though slight, which may be sufficient to authorize the inference of fraud or collusion. The fact that the claim affidavit and bond in this ease were not made by the elaimapt herself, nor by her attorney of record, but were signed by the defendant in fi. fa. as her professed “agent” (notwithstanding that a defendant in fi. fa. is presumed to be interested in the payment of his debts, and therefore to be upon the side of the plaintiff in fi. fa. rather-than upon that of the claimant), and the further fact that the claimant did not appear as a witness in the case, and was not sufficiently interested in the result to attend the trial thereof (so far as is disclosed by the record), are significant. In addition to this, the lack of definiteness and certainty in the testimony of the defendant in fi. fa., who appeared as the sole witness for the claimant, as to the amount he procured from his sister-in-law, and as to what in fact he actually owed her at the time he sold to her the mules in November, 1914, was a circumstance tending to support the finding of the jury that the transaction between the defendant in fi. fa. and the claimant was not bona fide, but that its purpose was to aid her to escape the payment of the debt due Dickerson, which, though not then in judgment, was for goods sold to the defendant in fi. fa. during the years 1912 and 1913, and was then probably long past due, and perhaps to the eye of the defendant-in fi. fa. an impending evil about to overwhelm him, to»be avoided at all risk and in any manner available. There are other minor circumstances in the record, which coupled with the points specially referred to above, might have been sufficient to authorize the verdict finding the property subject; and since the record as a whole discloses enough to support the verdict, this court will not set it aside.

Judgment affirmed.

Hodges, J., absent.


author: Bbotles, J.

text:
      7723.

    Wilcox v. The State.
   Bbotles, J.

1. While a juror who has served in the trial of a criminal ease, and, from the testimony given ait the trial, has formed and expressed an opinion as to the guilt or innocence of the accused, is disqualified to sit as a juror on a subsequent trial of the same person for the same offense, yet if he does so sit, a new trial will not be granted solely for that reason, unless it is affirmatively made to appear that the accused and his counsel exercised due diligence to discover who constituted the first jury. Jones v. State, 95 Ga. 497 (20 S. E. 211) ; Britt v. State, 112 Ga. 583 (37 S. E. 886); Sapp v. State, 116 Ga. 182 (42 S. E. 410) ; Massey v. State, 124 Ga. 24 (52 S. E. 78). In this case the undisputed record shows that one of the counsel for the accused on the second trial was his leading counsel on the first trial, and that this counsel was in court at both trials when the jury was selected, and that he was personally well acquainted with the .juror' in question. It appears also, and is not disputed, that the defendant himself was personally acquainted with this juror. Erom these facts it seems to this court that the exercise of the slightest diligence on the part of the accused and his counsel would have enabled them to discover easily before the jury was impanelled that this juror had been a member of tlie jury upon the first trial of the case.

2. As to the alleged newly discovered evidence of the relationship of one of the jurors to the prosecutrix: the evidence tending to show this relationship, which was submitted by the defendant in the form of affidavits, was met by a counter-showing on the part of the State (also in the form of affidavits), which tended to show that there was no such relationship. Upon this question the trial judge was the trior, and an abuse of his discretion is not shown by his overruling the ground of the motion for a new trial which was based upon this alleged newly discovered evidence.

3. There was no material error in allowing the prosecutrix to give the following testimony: “I loved Gus Wilcox ['the defendant] and he loved me.”

4. Prejudicial remarks by the court in the hearing of the jury furnish no good ground for a motion for a new trial. In such a ease a motion to declare a mistrial should be made, and upon the judge’s refusal to grant this motion his ruling would be subject to review. Counsel having failed to make such a motion, and having proceeded with the trial without objection, can' not in a motion for a new trial raise the question as to the prejudicial nature of the remarks complained of. Stapleton v. State, ante, 36 (90 S. E. 1029), and cases cited therein. In the instant case, during the cross-examination of the prosecutrix, the court remarked: “Gentlemen, you must stop laughing. I am not going to have this little lady humiliated by this conduct. This is no place for levity, and I am not going to allow her to be sneered at.” Under the above ruling, these remarks of the court, even if prejudicial, are not a ground for the grant of a new trial.

Decided December 11, 1916.

Indictment for bastardy; from Grady superior court—Judge Cox. July 3, 1916.

L. W. Rigsby, for plaintiff in error.

R. G. Bell, solicitor-general, F. A. Hooper, J. 0. Smith, contra.

5. The evidence in this case showed that the prosecutrix had been separated from her husband for several years when the reputed bastard child was born. Under such circumstances there was no error in the failure of the court to charge that a child conceived during wedlock is presumed to be legitimate, and that this presumption remains until removed by competent testimony; especially since no timely written request for such a charge was presented.

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

Judgment affirmed.

Hodges, J., absent.


text:
    7820.
    BAKER v. THE STATE.
    An indictment charging a violation of section 18 of the act of 1911 (Acts of 1911, p. 144; Park’s Penal Code, § 594 (h)), in that in a certain county the accused unlawfully hunted without a license, on lands not his own, outside of a specified militia district therein, in which he resided, but which failed to allege in what militia district he hunted, is fatally defective.
    Decided December 11, 1916.
    Indictment for illegal hunting; from Camden superior court— Judge Highsmith. August 8, 1916.

      S. G. Townsend, for plaintiff in error.

      J. H. Thomas,■ solicitor-general, contra.
   Wade, C. J.

The indictment charged that the accused. “did hunt unlawfully on lands not his own, outside of the 31st district, Georgia militia, of said county of Camden, he residing in said 31st district,'and did hunt for opossums and raccoons outside of said district, without a license so to do.” Section 18 of the act of 1911 (Acts of 1911, p. 144; 6 Park’s Code, § 594 (h)), declares that “any person who shall hunt, without first obtaining a license, except upon his own land, or in his own militia district . . . shall be guilty of a misdemeanor.” While this act does not expressly prohibit the hunting of opossums and raccoons, it was held in Blassingame y. State, 11 Ga. App. 809, 810 (76 S. E. 392), that under the provisions of the act, “no kind or character of game, whether designated by the act or not, can be hunted without complying with the requirements as to license,” except in' instances there noted which do not affect the case under consideration. See also Smith v. State, 15 Ga. App. 536 (83 S. E. 886).

The indictment was specially demurred to for the.reason (among others) that it failed to allege in what militia district the alleged hunting was done. While, by express statute (Penal Code, § 954), every indictment or accusation shall be deemed sufficiently technical and correct which states the offense in the terms and language of the code, “or so plainly that the nature of' the offense may be easily understood by the jury,” it has been held that “this section was not intended to dispense with the substance of good pleading, nor to deny to one accused of crime the right to know enough of the particular facts constituting the alleged offense to be able to prepare for trial, nor to deprive him of the right to have an indictment perfect as to the essential elements of the crime charged.” O'Brien v. State, 109 Ga. 51, 53 (35 S. E. 112), and cases there cited; Brown v. State, 116 Ga. 559, 562 (42 S. E. 795). .This court has held that “an accusation of trespass, in which the defendant is charged with passing over the lands of another after being forbidden by the owner, in violation of the Penal Code, § 220 [Penal Code of 1910, § 217], is insufficient to withstand a timely definite special demurrer, where the only description of the lands trespassed upon is ‘a certain field the cultivated land of [the prosecutor] at the time being held under a contract of purchase,’ though previous statements in the accusation locate the land as being in the county -of the prosecution. In such an accusation the description of the land should be definite.” Heard v. State, 4 Ga. App. 572 (61 S. E. 1055), and cases there cited. See also Morrow v. State, 17 Ga. App. 116 (86 S. E. 280). Since an indictment must contain such definite allegations as not “to deny to one accused of crime the right to know enough of the particular facts constituting the alleged offense to be able to prepare for trial” (O'Brien v. State, supra), the indictment in this case was subject to thé exception urged in the demurrer, inasmuch as it failed to designate in what particular militia district of the county the defendant had unlawfully hunted. The mere allega- • tion that the hunting was done in the county of Camden elsewhere than in the 31st Georgia militia district of that county, where the defendant resided, was not sufficient to put the accused on such notice that he could properly defend or be able to prepare for trial. For example, in a case of mistaken identity, under such an indictment the accused might be unable to procure witnesses in advance of trial who would be able to establish for him a defense of alibi, though in point of fact there were witnesses who knew of their own knowledge that on the day fixed by the testimony for the State he was not actually in the particular militia district where, according to the State’s testimony, the crime charged in the indictment was committed, because, of their knowledge of his presence in another district, in a different part of the county, far remote from the scene of the crime; though it would be otherwise if he had been put on proper notice by the indictment itself as to the particular militia district in which the alleged crime was by some one committed.

We hold, therefore, that the court erred in overruling the demurrer directed to this specific defect in the indictment. What occurred thereafter was consequently nugatory, and the questions raised by the motion for a new trial need not be specifically considered. Judgment reversed.

Hodges, J., absent.


text:
    7337.
    LOVE v. PERRY.
    1. All the terms of the agreement between the parties appeal", by the terms ' of the written contract, to have been integrated therein; and since by its express terms it warranted nothing "except the title to the property sold, parol contemporaneous representations at variance therewith could not be set up by way of defense.
    2. A note payable generally “after date,” and not otherwise expressing any time for payment, is payable on demand, and therefore due immediately, and bears interest from date.

      3. Ordinarily, there can not he a recovery on a promissory note in which a blank for the amount is left in the body of the instrument, though an amount appears in figures in the margin of the paper.
    (a) However, where a note of this kind which is otherwise an unconditional promise to pay is made the basis of a suit for a specified amount, and the defendant by his plea under oath admits the execution of the instrument, and that the obligation thereof was to pay the exact sum sued for, a judge of the superior court, in the absence of an issuable defense under oath, would be authorized to render judgment as upon an • unconditional contract in writing.
    Decided December 12, 1916.
    Complaint; from Irwin superior court—Judge Graham presiding. January 26, 1916.

      Quincey & Rice, for plaintiff in error.

      McDonald & Bennett, contra.
   Wade, C. J.

The note sued on was for the purchase-price of a horse, and expressly excluded any warranty by the vendor as to the age, health, life, or soundness of the property therein described, and further provided that, except the warranty of title, “no other warranty shall be implied as against the vendor." The court, therefore, did not err in striking the plea which attempted to set up the defense that the horse which was the consideration of the note did not measure up to the parol representations made by the seller at the time of the sale. All' such representations were necessarily merged into the written contract, which expressly negatived by its terms the existence of any warranties whatever as to the age or soundness of the animal sold and as to its suitability for the purposes intended by the defendant.

The note sued upon hears date April 14, 1914, and stipulates that “-after date, I, we, or either of us, whether maker, security or endorser, jointly and severally, promise to pay to J. L. Perry or order-dollars, value received, with interest from date at eight per cent, per annum until paid. This note is given for the purchase-price of the following property, this day purchased from J. L. Perry," describing the property. In the upper left-hand margin of the instrument the figures “$90” appear, and nowhere else in the instrument is there any reference to the amount contracted to be paid. The general rule appears to be that figures on the margin of a promissory note will not authorize a recovery thereon, if the amount is left blank in the body of the instrument. “The fact that an amount is stated in the margin of a'note, both in words and figures, does not dispense with the necessity of expressing clearly in the instrument the amount for which it is made, and though the figures are in the margin of the paper, so long as the amount is left blank in the body of the instrument, there can be no recovery thereon.” 1 Daniel on Negotiable Instruments (6th ed.), 132. While marginal figures may be referred to for the purpose of removing the ambiguity, where the amount contracted to be paid is defectively stated in the body of an instrument,-"the weight of authority . . seems to be in favor of the view that the sum named in the margin is generally the limit of the amount with which a bona fide holder may fill up the blank; and that until so filled the instrument is incomplete, and no recovery can be had upon it. The reason for this rule is that one of the essential requisites of a bill or note is that the amount for which it is made must clearly be expressed in the instrument, and, as the marginal figures are not generally regarded as a part of it, but are intended as a convenient index, and as an aid to remove ambiguity or doubt in the instrument itself, they 'can not supply the omission to insert the amount in the body of the instrument, where a blank has been left for that purpose. The blank in such an instrument is presumably intended to be filled with something, and, until that something has been added, the instrument is not complete. It is not invalid simply because it is incomplete. It creates certain rights and obligations, and, when properly filled up by a bona fide holder, may be enforced at law, or, if left blanlc by mistake, in equity.” 3 E. C. L. 893, 894, § 80. See also Hollen v. Davis, 59 Iowa, 444 (13 N. W. 413, 44 Am. R. 688, and note); Chestnut v. Chestnut, 104 Va. 539 (52 S. E. 348, 7 Ann. Cas. 802, 2 L. R. A. (N. S.) 879; 1 Ann. Cas. 612, ■ note). However, the view that a note is complete on its face where the amount is named in figures in the margin, although a blank for the amount is left in the body of, the instrument, is supported by the decision in the case of Witty v. Michigan Mut. L. Ins. Co. 123 Ind. 411 (8 L. R. A. 365, 18 Am. St. Rep. 327, 24 N. E. 141).

■ An application of the more general rule, recognized above, would require a reversal of the judgment of the lower court, if the record did not disclose a state of facts which, under the rules of pleading in this State, operates, in our opinion, to cure the defect in the note sued upon. The petition filed by the plaintiff alleged that “on April 14, 1914, J. R. Love executed and delivered to your petitioner his certain promissory note, wherein he promised on October 15, 1914, to pay your petitioner the sum of $90, with interest from the date thereof at the rate of eight per cent, per annum. A copy of said note is hereto attached, marked ‘Exhibit A,’ and made a part hereof.” The petition contained other necessary allegations,'and attached to it was the copy of a note, dated as alleged in the paragraph here quoted, but with blanks for the amount and the time after date when the note would mature, and with the figures $90 in the margin, and stating that it was given for the purchase-price of a certain horse about 7 years old and 15 hands high, weighing about 900 pounds, named Dan. The law of this State requires that all suits in the superior courts for legal or equitable relief, and likewise all suits at law in the city courts, shall be by petition, and that all such petitions shall set forth the cause of action-in orderly distinct paragraphs, numbered consecutively, “and any averment distinctly and plainly made therein, which is not denied by the defendant’s answer,, shall be taken as prima facie true, unless the defendant states in his answer that he can neither admit nor deny such averment because of the want of sufficient information.” Civil Code, § 5539. The defendant in his answer did not deny the averment in the first paragraph of the petition, that on April 14, 1914, he executed and delivered to the plaintiff his promissory note, whereby he undertook to pay to said plaintiff the sum of $90 on October 15, 1914, with interest from date at the rate of eight per cent, per annum, as the purchase-money for the horse described in the note attached to the petition; nor did he deny the statement in the same paragraph that the copy-note attached to the petition was a copy of - the note actually executed by him. To the contrary, he expressly “admits the allegations contained in paragraph one of plaintiff’s petition.” Therefore, in the state of the pleadings, it is apparent that recourse to the figures in the margin of the note was not necessary to authorize the rendition of a judgment in favor of the plaintiff for the full amount of the note sued upon, together with interest.

The note contained an unconditional promise to pay some amount “after date.” It was held in Hotel Lanier Co. v. Johnson, 103 Ga. 604 (30 S. E. 558), that "A promissory note payable generally 'after date’ and not otherwise expressing any time for payment is payable on demand; and therefore, under section 3700 of the Civil Code [Code of 1910, § 4292], due immediately.” See also Exchange Bank of Oakfield v. Odum, 19 Ga. App. 52 (90 S. E. 977). Interest therefore was apparently due from the date of this note, and the defendant, by the express statement in his plea, admitted that interest did in fact run at eight per cent, from that date. The note was upon its face unconditional, and when the defendant came into court and by his solemn plea admitted the allegation made by the plaintiff, that the note was given for the sum of $90, this admission supplied the only element which upon its face appeared to be lacking from the written evidence of the contract. To express the matter otherwise, the -defendant gave an unconditional promise to pay some amount, and when this promise was sued upon and the plaintiff alleged in the suit that the amount was $90, the defendant filed his plea under oath, in which he expressly admitted the making of the contract, and that the amount recoverable thereunder was $90, with interest thereon from date at eight per cent, per annum. Clearly the court rendered judgment on an unconditional contract, the amount of which was supplied by the allegations in the petition and the admissions of the defendant. As was said in the quotation from Euling Case Law, supra, "the blank in such an instrument is presumably intended to be filled with something, and, until that something has been added, the instrument is not complete. It is not invalid simply because it is incomplete. It creates certain rights and obligations, and, when properly filled up by a bona fide holder, may be enforced at law, or, if left blank by mistake, in equity.” Here no demurrer was interposed because of the apparent insufficiency of the note or its incompleteness, no plea of non est factum was filed, but the defendant came into court and openly acknowledged under oath that he had made and executed the note, and that the amount he had contracted thereby to pay was the amount sued for by the plaintiff. It appears to us that the omission to fill in the amount of the note was thus supplied, or the blank left by mistake was thus filled, and that upon the pleadings the court was authorized to hold that the contract was an unconditional contract for the sum sued for, and to render judgment therefor, and that no other proceeding was necessary to make the contract complete or to 'correct the mistake made in its execution. The court, in our opinion, did not err in striking the answer of the defendant, as it set up no issuable defense under oath, and did not err in thereafter rendering the judgment complained of.

Judgment affirmed.

Hodges, J., absent.