text:
    8717.
    ATLANTIC COAST LINE RAILROAD COMPANY v. WILLIAMS.
    1. Upon a first application for a new trial based in part on discretionary grounds, the trial judge must exercise his discretion in passing on the evidence. Thus, where the order overruling the motion for a new trial is not susceptible of the interpretation that the verdict which it is sought to set aside was approved by the trial judge in the exercise of a sound legal discretion, but where, on the contrary, the order clearly indicates that although the trial judge did not himself approve the finding, it was nevertheless reluctantly allowed to stand because of the fact that the issues had been passed upon by the jury after having been fairly submitted, the order overruling the motion must be reversed, unless the evidence was such as to demand the verdict as rendered. Central Railway Co. v. Harden, 113 Ga. 453 (38 S. E. 949) ; Melntyre V. Molntyre, 120 Ga. 67 (47 S. E. 501, 102 Am. St. R. 71, 1 Ann. Cas. 606) ; Thompson v. Warren, 118- Ga. 644 ( 45 S. E. 912) ; Seaboard Air-Line Railway v. Randolph, 129 Ga. 796 (59 S. E. 1110) ; Savannah Electric Co. v. Laclcens, 12 Ga. App. 765, 767 (79 S. E. 53) ; Martin V. Bank of Leesburg, 137 Ga. 285 (8) (73 S. E. 387).
    2. A report by operating agents of a railway company to its superintendent of transportation, made for the purpose of being submitted to the company’s counsel in order that counsel might advise it as to whether or not there was liability on its part for anything connected with the transaction reported, and to enable such counsel to prepare for the defense of the defendant if litigation should arise out of .tlie occurrence, which report was duly transmitted into the hands of such counsel as its proper custodian, constitutes a privileged communication, and its production can not be enforced by the adverse party in a suit for damages growing out of the occurrence so reported; and this is true although the report might have been made at a time so nearly contemporaneous with the transaction itself as might ordinarily permit its being received as a part of the res gestae thereof.
    Decided December 14, 1917.
    Action for damages; from Mitchell superior court — Judge Cox. December 26, 1916.
    This was a suit by a passenger claiming damages for an alleged illegal assault by the operating officials of the railroad company, and an unwarranted ejectment from the train, followed by an unjustified arrest and detention of the plaintiff, alleged to have been instigated by the defendant’s officials. The order of the trial judge overruling the motion for a new trial was in terms as follows: “The motion for a new trial in the above-stated cause regularly coming on for hearing before me at this time and place, and after hearing argument of counsel, the court wishes” to make the observation that he was not iihpressed with the plaintiff in this case, nor with his testimony or his case. The evidence tended to show that he boarded defendant’s train in an intoxicated or semi-intoxicated condition, and that he was probably at fault in the alleged first difficulty upon defendant’s train, and brought upon himself, the assault complained of; but this does not so strongly appear to be the ease as to the alleged second assault or trouble. The court, however, is impressed with the idea that the issues in the ease were fairly submitted, and the jury having passed upon the same, a new trial is reluctantly refused movant.”
    The record shows, that, on the day of the occurrence on which the plaintiff bases his claim for recovery, the conductor of the train made out and signed a report on a regular printed form, covering the events involved in the controversy, and forwarded it to the superintendent of transportation of the defendant company; that notice to produce this report at the trial, in order that it might be used as evidence by the plaintiff, was served on the defendant and its counsel; and that at the trial counsel for the defendant objected to its production, on the grounds that “they were in custody of said report in their capacity as counsel and attorneys for said defendant; that they, as division counsel of the defendant, were the official custodians of these reports; that said report was made out by the agent of the defendant for the purpose of being submitted to defendant’s'counsel for the purpose of having defendant’s counsel advise defendant as to whether or not there was any liability on the part of the defendant for anything connected with the transaction reported, and to enable said counsel to prepare for the defense of the defendant, if litigation ensued; and that said report was therefore a confidential communication between client and attorneys, and was a paper of clients held by the attorneys.” The record shows that this statement was accepted as evidence, and was not disputed.

      Pope & Bennet, Peacock & Gardner, for plaintiff in error.

      E. M. Davis, contra.
   Jenkins, J.

(After stating the foregoing facts.)

The rule given in the first headnote^is sufficiently supported by the authorities there cited.

Under the rule governing in this State, the sayings of an agent are admissible against the principal only upon the theory that they are a part of the res gestas. Civil Code (Í910), § 3606; Evans v. Atlanta &c. R. Co., 56 Ga. 498; Georgia Ry. &c. Co. v. Harris, 1 Ga. App. 714 (2), 718 (57 S. E. 1076). But see also Charleston &c. Ry. Co. v. Brown, 13 Ga. App. 744, 750 (79 S. E. 932). In order that the declarations of persons competent to make them may constitute a part of the res gestse, it is not required that they be precisely concurrent in point of time with the principle transaction; but if, springing from it and tending to explain it, they are spontaneously made at a time so near as to preclude the idea of afterthought or of a design to misrepresent, they will ordinarily be regarded as so nearly contemporaneous as to be admissible. It will be observed, however, that the objection made to the production and introduction of the conductor’s report is not based to any extent upon the theory that it could’not be considered as a part of the res geste of the transaction, but rests entirely upon the ground of the confidential character of the report; and thus, pretermitting any consideration of the question as to whether or not the communication was in fact such as might ordinarily constitute a part of the res geste, the only question we .are called upon to determine is whether or not, even though such was the case, the report was of such a confidential and privileged nature as would preclude its production on behalf of the adverse party. In Carlton v. Western & Atlantic R. Co., 81 Ga. 531 (7 S. E. 623), in which it was held that the court did not err in refusing to require the production of the report of a railroad conductor as to the circumstances and character of injuries caused by operation of its trains, Blandford, J., said: “Had the requirements of the statute been complied with, we see no reason why the.paper should not have been produced. We do not understand such a report to be a privileged communication.” However, it was said by the Supreme Court, speaking through Chief Justice Bleckley in the ease of Carroll v. East Tennessee &c. Ry. Co., 82 Ga. 452, 473 (10 S. E. 163, 6 L. R. A. 214), that the opinion in the Carlton case, supra, was not a decision upon the- admissibility of such reports, and that the question as to whether or not such a communication was privileged was not there involved so as to render a decision of it necessary. The fourth headnote of the decision in the Carroll case, supra, is as follows: “Reports to the general manager of the company touching the facts, circumstances, and results of a railway accident, and who was to blame therefor, made several days after the event, by the superintendent and the conductor, supported by the affidavit of the latter and of several other employees, are not admissible in evidence to affect the company, whether such reports were exacted and made under standing rules requiring the same, or under special orders for the particular occasion, no question of notice to the company being involved in the controversy.” In discussing this case, however. Chief Justice Bleckley said: “Having had their origin many days after the happening of the events to which they related) they were no part of the res gestse of the cause of action on trial, but were mere narrative touching past occurrences.” 'Since it was thus specifically held that the communication in the Carroll case could not be taken as a part of the res gestas, the ruling there made is not directly and completely controlling upon the question now before us. It will be noted that nowhere does it appear in the Carlton case, supra, that the report was made for the purpose of being submitted to counsel with the view of receiving his professional advice as to liability growing out of the transaction reported, and of enabling counsel to prepare the defense for the company in the event litigation should ensue. The purport of the ruling in the Carroll case was that such a report, though made by its own servants and officials, can not be taken aS an admission against the company to which it was made; at least where it does not appear that the communication, constituted a part of the res gestse of the transaction involved. In the Carroll case, as in the Carlton case, there is nothing to indicate that the report was made for the purpose of being submitted to the company’s attorney for his guidance in anticipated litigation. The question which presents itself now is, whether such a report, even though it might ordinarily he considered a part of the res gestse, is nevertheless exempt from the notice to produce served by the opposite party, on the ground of its privileged character, because of the fact that it came into existence as a result of communications between attorney and client with a view to future litigation.

It has been stated, as a general rule, that communications between principal and agent, or master and servant, or other communications made in the ordinary course of business, are not in any way privileged, but may be given in evidence. 23 Am. & Eng. Ene. of Law (2d ed.), 100 (1). But this rule must be construed in the light of the principle already stated, that the declarations of an agent can be admitted against hiá principal only when they constitute a part of the res gestas of the transaction. Confidential communications between a principal and his agent are not relevant merely as admissions. Be Devala Provident Gold Min. Co., L. B. 22 Ch. Div. 593. Thus, the effect of the ruling in the Carroll ease, supra, was to hold that if the report there involved was admissible at all, it was not because of its relevancy merely as the admission of an agent of the defendant or because of its reception by the company, but only on the theory that it constituted a part of the res gestse; but whether or not it would even then be admissible was not in fact decided, and that too in a case where the relationship of attorney and client was not involved. But, assuming that the communication involved in the case now under consideration could be taken as being what would, ordinarily constitute a part of the res gestae, does the fact that it was made in the' manner and for the privileged purpose set out by the defendant, prevent its production and use by the adverse party? The rule laid down in 23 Am.& Eng. Enc. of Law (2d ed.), 100, is as follows: “A statement submitted by an agent to his principal at the request of the latter, for the purpose of being laid before an attorney for his advice or opinion, for guidance in litigation, is privileged.” This rule has-been followed in numerous adjudications by courts of this country. See Davenport Co. v. Pennsylvania Railroad, 166 Pa. St. 480 (31 Atl. 245); Cully v. Northern P. R. Co., 35 Wash. 241 (77 Pac. 202); Re Schoepf, 74 Ohio St. 1 (77 N. E. 276, 6 L. R. A. (N. S.), 325). In the latter case the court held: “Where, pursuant to a standing rule of the company, a report was made to the company’s claim agent, by the conductor and motorman of an electric car, of an accident in which a passenger was injured, and.detailing the circumstances of the accident, which report was made for the information of the claim agent for the purpose of settlement, or for use of counsel in case of suit against the company; and such report remained in the custody of the claim agent until suit was commenced against the company for injury received in such accident, when it was turned over to, and has ever since remained in the possession of, the company’s counsel, — such report is a privileged communication, and its production can not be enforced in the taking of depositions in such suit before the trial.” The rule here indicated has not been uniformly followed, especially by the English cases, as is stated by the editor’s note to the latter case as reported in L. R. A. There it is stated that the English courts lay down the following rules: (1) “When an accident happens, and the agents of the corporation, in the oourse of their ordinary duty, make a report'to the company, whether before or after action brought, that report is not privileged, and is subject to inspection.” (2) “But where a claim has been made, and the company seeks to inform itself by a medical examination as to the condition of the person making the claim, that report is privileged, and inspection is not granted.” (3) “And reports are privileged which are‘procured by, or at the instance of, the corporation’s' solicitor, after action brought against the corporation, for the purpose of enabling him to conduct the legal proceedings.” The English precedents as to the first proposition are, however, certainly not in harmony with the rule adopted by our Supreme Court, as laid down by Chief Justice Bleckley in Carroll v. East Tennessee &c. Ry. Co., supra; and in our opinion the reasoning of that ease is in entire harmony with the doctrine set forth, by the American cases above cited.

The rule as quoted from the decision of the Supreme Court of Ohio appears to be founded upon principles of reason, justice, and fairness, and comports with the ruling made in Southern Railway Co. v. White, 108 Ga. 201 (2) (33 S. E. 952), where it was held: “Statements made 'in letters written by a client to his attorney, concerning matters connected with litigation which the attorney has been employed by the client to conduct, are confidential communications, and are inadmissible in evidence against the client.” It is also within the spirit and reason of the language used by Chief Justice Bleckley in the Carroll case, where he said: “It surely can not be sound law to hold that by collecting information, whether under general rules or special orders, and whether from its own officers, agents and employees, or others, a corporation acquires and takes such information at the peril of having it treated as its own admissions, should litigation subsequently arise touching the subject-matter.” It does not seem that this just right and privilege should be denied merely because it happens that, in taking such information for the benefit of its counsel, such a report, though made entirely subsequent to the actual occurrence and in no way entering into and affecting the transaction itself, yet was so closely proximate thereto as would ordinarily permit its being taken as a part of. the res gestae. In other words, we do not think that a report made for this purpose, and entirely disconnected with the transaction itself, could properly be 'treated as a part of the res geste, even though made at a time so nearly contemporaneous with the transaction as would ordinarily permit its being so considered. The time when statements may be made can not in all eases be taken to absolutely govern the- determination of the question as to whether or not they constitute a part of the res.geste, but each case turns on its own circumstances, and the inquiry is into events rather than into the precise time which has elapsed. Hall v. State, 48 Ga. 607.

Able counsel for the defendant in error, in his brief and argument, which is exceptionally strong and clear, in our opinion very properly states that if the mere placing of such a report in the hands of an attorney would of itself work a bar to its production for the purpose of being used in testimony, it would then be impossible to compel any defendant or any plaintiff to produce, any kind of paper, deed, book, or record, to be used in the trial of a case; because, if this were the rule, a'party to a suit holding any instrument which he might not wish to produce and disclose would simply need to place it in the hands of his attorney, and then claim that it was exempt from production because of such custody. As we understand the rule, certainly as applying to papers and documents not pre-existent, an attorney may be compelled to produce in evidence any paper, or record in his possession belonging to his client which the client himself could be compelled to produce, the test being as to whether the document would, independently of a . professional privilege, have been exempt from production in the hands of the client himself. But where the existence itself of the document grows out of and is owing to the relationship Subsisting between attorney and client, and as a result of communications thus had, it is for that reason privileged in the hands of the attorney. Pearson v. Yoder, 39 Okla. 105 (48 L. R. A. (N. S.) 334, 134 Pac. 421, Ann. Cas. 1916A, 62). It is further contended ,by counsel for the defendant in. error that the report of the conductor was relevant for the reason that by it the defendant company became charged with notice of the occurrence, after which notice, as was alleged in the petition, it continued to keep the officials in its employment, ’thereby rendering itself liable to additional or aggravated damages by reason of such implied, ratification. Gasway v. Atlanta &c. R. Co., 58 Ga. 217 (4); Western & Atlantic Railroad Co. v. Turner, 72 Ga. 292, 296 (53 Am. R. 842). If, however, the report was confidential and privileged, we do not think its contents should be forcibly disclosed for such a purpose, although the fact that such report" had been made and furnished might well be admissible and entirely relevant. Rylee v. Bank of Statham, 7 Ga. App. 489 (67 S. E. 383).

Judgment Reversed.

Wade, O. J., and Luke, J., concur.


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
      8722.

    Kennedy, sheriff, v. Bank of Collins, for use, etc.
    Decided December 14, 1917.
    Money rule; from Tattnall superior court — Judge Sheppard. January 9, 1917.

      H. H. Elders, Collins & Stanfield, for plaintiff in error.

      G. W. Lankford, J. V. Kelley, contra.
   Jenkins, J.

Where money is in the hands of a levying officer, he may pay it over to the plaintiff by whose process it was raised, unless other claimants deposit their liens with him. Civil Code (1910), § 5348. But where property is sold by virtue of certain common-law fi. fas., the liens of which are inferior in dignity to an older recorded mortgage which has been duly foreclosed and the mortgage fi. fa. placed in the hands of the levying officer prior to the sale, such officer would be subject to rule by the owner of the superior mortgage fi. fa., upon the money so raised being paid out to satisfy the liens of the inferior judgment fi. fas., notwithstanding the fact that the officer may have held up the fund for a period of about six months subsequent to the sale, and paid it out to the owners of the inferior liens prior to the bringing of any rule or other proceeding claiming the fund by virtue of the older lien.

Judgment affirmed.

Wade, G. J., and Luke, J., coneur.


author: Wade, C. J.

text:
    8901.
    WESTERN & ATLANTIC RAILROAD CO. v. DAVIS.
   Wade, C. J.

1. The plaintiff sued by her next friend, alleging that she was a minor about 9 years of age and was the only child of her deceased father, who left no wife or other children surviving him. She alleged in her petition, that her father was an employee of the defendant company, and was killed while using a well-established pathway along the tracks and right of way of the defendant between its depot and certain shanties and section-houses belonging to it, where he. lived, which pathway had been in such use by its employees and by the public constantly for more than 20 years; that such use had become' the fixed custom of which all “of the agents, servants, and employees of said defendant company had knowledge;” and that “the use and custom was so common that it was known to all [italics ours] of the engineers, firemen, and- other employees operating the trains of said defendant railroad.” The defendant» was alleged to have been negligent, in not keeping a proper lookout at this place so constantly and continuously used by pedestrians; in running and operating its engine and cars at a high and rapid speed of 60 miles per hour; in not looking ahead for the appearance of pedestrians at this locality; in failing to warn the plaintiff’s father of the approach of the train, ears, and locomotive; in failing to have the train at this point under sufficient control, so as to avoid killing the deceased; in failing to exercise ordinary care in applying the brakes, blowing the whistle, sounding the bell, or slackening the speed of the train; and in failing to exercise ordinary care after the presence of the plaintiff’s father became known to those operating the train, or by the exercise, of ordinary care could have been known; by not applying the brakes, blowing the whistle, sounding the bell, or checking the speed of the train; and in failing to use any diligence whatever to prevent the killing of the deceased. By amendment it was alleged, that the decedent was killed as set forth in the original petition, during the night of May 29, 1913; that he left the town of Tunnell Hill (the depot) after dark on that night, and was found dead by the tracks of the defendant, at a point not far beyond the north corporate limits of said town on the morning of May 30, 1913; that he was killed by a train of the» defendant company; that the petitioner was unable to state the hour of the night or what particular ’ train killed him, but that the running of the train which did kill him and the time of the killing were well known to the defendant company, its agents,' servants, and employees. The petition was further amended by striking the allegation that the agents and employees of the defendant were negligent after the presence of the deceased “became known to said agents,” thus leaving the allegation that they were negligent after his presence “could have been known” by the exercise of ordinary care. By further amendment another count was added to the petition, alleging the same negligence on the part of those operating the train which killed the decedent, and alleging further that the engineer and the fireman in fact saw the deceased upon the track, and thereafter failed to exercise the required degree of care, and were negligent not only as alleged in the original petition, but also in failing to use proper care and diligence after such discovery.

(а) Under the circumstances set forth in the petition, it does not appear that the court erred in overruling the special demurrers calling for fuller and more specific allegations as to the time, place, and manner of the killing.

(б) The general demurrer was likewise properly overruled, as a cause of action was set forth. Parker v. Georgia Goast &c. Railroad Go., 136 Ga. 629 (71 S. E. 1090); L. & V. Railroad Co. v. Rogers, 136 Ga. 674 (71 S. E. 1102); Western & Atlantic R. Co. v. Watkins, 14 Ga. App. 388 (80 S. E. 916); Shaw v. Georgia Railroad., 127 Ga. 8 (55 S. E. 960). This ruling is not in conflict with the holding of the Supreme Court in Gulf Line Railway Co. v. Way, 137 Ga. 109 (72 S. E. 917), but is in exact accord with the decision in Central Ry. Co. v. Tapley, 145 Ga. 792 (89 S. E. 841), where it is held: “A petition in a suit against a railroad company for the homicide of a pedestrian on the tracks of the defendant, which shows upon its face that the person killed was a trespasser using a dangerous railroad trestle as a pathway, and fails to allege facts showing that the place was one known by the servants of the defendant operating a train to be one where the presence of persons was to be anticipated, and that they injured him without exercising ordinary care to discover his presence,, or that the presence on the track of the person killed was actually known to them, and, after being aware of his presence, they failed to exercise ordinary care to avoid injuring him, fails to allege a cause of actionable negligence against the railroad company.” Here it is distinctly alleged that the use of the pathway along the tracks or right of way of the defendant at the place where the deceased met his death was known to “all of the engineers, firemen, and other employees operating the trains of said defendant railroad; ” which necessarily included the engineer and the fireman operating the train which killed him during the night of May 29, 1913; and the second count alleges further that the actual presence of the deceased on the track was known to the engineer and the fireman.

Decided December 14, 1917.

Action for damages; from Whitfield superior court — Judge Tarver. May 4, 1917.

Tye, Peeples & Tye, Maddox, McCamy & Shumate, for plaintiff in error. W. C. Martin, W. E. Mann, O. W. Head, contra.

2. There is no substantial merit in any of the special grounds of the motion for new trial, complaining of excerpts from the charge of the court, or (in the absence of any timely written request) in the grounds complaining of the failure by the court to give certain other instructions. The charge as a whole fairly and fully submitted the issues in the ease.

3. The evidence was sufficient to authorize the conclusion that those operating the train of tiie defendant company had reason to anticipate the presence of the deceased on the tracks or right of way of the defendant, at or near the point where he was killed, and that they were negligent in failing to discover his presence on the tracks and in taking the necessary steps to preserve his safety; and since there was some evidence to sustain all the material allegations in the petition and the verdict has been approved by the trial judge, this court is not authorized to set it aside.

Judgment affirmed,.

Jenkins and Luke, JJ., concur.


text:
    8929.
    Thompson v. Marietta Trust & Banking Company.
   Jenkins, J.

1. The court did not err in allowing the amendment to the plea and answer.

2. This case is here on a direct bill of exceptions in which the only assignment of error, other than that disposed of above, is that the court erred in awarding a nonsuit. No proper brief of the evidence is in the bill of exceptions, or made a part of the record; and the case is controlled by the ruling made in Tidwell v. Alabama Great Southern R. Co., 20 Ga. App. 826 (93 S. E. 511). See also Civil Code (1910), §§ 6140, 6141; Crumbley v. Brooke, 135 Ga. 723 (70 S. E. 655); Cunningham v. Strom, 8 Ga. App. 87 (68 S. E. 616).

Decided December 14, 1917.

Trover; from Cobb superior court — Judge Searcy presiding. April 24, 1917.. ■ '

A. E. Wilson, J. Z. Foster, for plaintiff.

D. W. Blair, for defendant.

Judgment affirmed.

Wade, C. J., and Lulee, J., concur.


author: Luke, J.

text:
    9055.
    Roberts, administrator, v. Carroll.
    Decided December 14, 1917.
    Complaint; from city court of Jefferson — W. W. Stark, judge pro hae vice. June 15, 1917.

      Wolver M. Smith, Claud Mahaffey, for plaintiff in error,

      J. S. Ayers, contra.
   Luke, J.

The only question presented for review is as to the sufficiency of evidence to authorize the verdict. There being some evidence to authorize the verdict, and the trial judge having approved the finding of ■ the jury, it was not error to overrule the motion for a new trial.

Judgment affirmed.

Wade, C. J., and Jenloins, J., concur.


author: Bloodworth, J.

text:
    8662.
    OHIO BLOWER COMPANY v. SAVANNAH LIGHTING COMPANY et al.

    To make good the lien of a" materialman for material furnished, it is necessary that his claim of lien be recorded “within three months after the completion of the work, or within three months after such material . . is furnished, in the office of the clerk of the superior court in the county where such property is situated.” The mere filing of such a claim is insufficient.
    Decided December 14, 1917.
    Lien foreclosure; from Chatham superior court — Judge H. C. Hammond presiding. December 8, 1916.

      G. W. Owens, for plaintiff. Adams & Adams, for defendant.
   Bloodworth, J.

The Ohio Blower Company, alleging that it, is “a materialman and manufacturer,” brought suit against Light-man, McDonald & Company as contractors, the Savannah Lighting Company, and the Savannah Lumber Company, for material furnished for improving a described lot of land, the property of the Savannah Lumber Company, “and .the Savannah .Lighting Company having a leasehold interest in said lot of land.” The plaintiff amended his petition in part as follows: “that on the 1st day of January, 1910, the Savannah Lumber Company leased to the said Savannah' Lighting Company one and 62/100 acres of said 22 1/10 acres of land, for the term of fifty years, beginning on the first day of January, 1910, ending thq first day of January, 1960.” There is no allegation in the petition that the plaintiff has recorded' his lien, as provided in the Civil Code (1910), § 3353, par. 2, the petition alleging: “this lien being filed within three months from the date when said material was furnished.” There is no prayer in the amendment for any lien; and the prayer of the original petition is as follows: “Your petitioner prays it may' have judgment.against the said Lightman, McDonald & Company for its debt aforesaid, and the interest thereon, and against said Savannah Lighting Company, and that said judgment be declared to be a lien on the premises above described, as owned by said Savannah Lumber Company and said Savannah Lighting Company.” Tn no event could any judgment be rendered, under the allegations in the petition, against the Savannah Lumber Company, as it sustained no contractual relations of any kind with the plaintiff. We doubt very seriously whether the prayer quoted above would be sufficiently definite to authorize a lien and judgment against any interest the Savannah Lighting Company might have in the property described; yet the failure to allege compliance with the code section referred to above, and failure to record the claim of lien within three months after the material was furnished, is fatal to the plaintiff’s ease. The allegation that the claim was filed for record is not sufficient. The court properly sustained the demurrer to the petition. Jones v. Kern, 101 Ga. 309 (28 S. E, 850).

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
    8709.
    MARIETTA FERTILIZER CO. v. BENTON et al.

    Where the return day for filing suits in a court is the 15th. of the month and a petition is filed on that day, a notice to bind for attorney’s fees, served on the 5th of the same month, is served “ten days before suit is brought."
    Decided December 14, 1917.
    Complaint; from Wheeler superior court — Judge Graham. March 5, 1917.

      Lankford & Rogers, Lankford ■& Moore, for plaintiff.
   Bloodworth, J.

Section 4252 of the Civil Code of 1910 is as follows: “Obligations to pay attorney’s fees upon any note or other evidence of indebtedness, in addition to the rate of interest specified therein, are void, and no court shall enforce such agreement to pay attorney’s fees, unless the debtor shall fail to pay such debt on or before the return day of the court to which suit is brought for the collection of the same: Provided, the holder of the obligation sued upon, his agent, or attorney notifies the defendant in writing, ten days before suit is brought, of his intention to bring suit, and also the term of the court to which suit will be brought.” This statute as to time is complied with where the notice as to attorney’s fees is served on the 5th of the month and suit is filed on the 15th of the same month, which is the return day. The general rule as to computing time in such cases is laid down in the Civil Code of 1910, § 4, par. 8, and is as follows: “When a number of days is prescribed for the exercise of any privilege, or the discharge of any duty, only the first or last day shall be counted; and if the last day shall fall on the Sabbath, another day shall be allowed in the computation.” See, in this connection, Merritt v. Gate City National Bank, 100 Ga. 147 (27 S. E. 979, 38 L. R. A. 749); Heard v. Phillips, 101 Ga. 691 (31 S. E. 216, 44 L. R. A. 369). A case directly in point is that of Pollard v. Yoder, 9 Ky. 264. The statute under construction in that case contained the words “ten days before the return day,” and the writ was executed on the 5th of March and was returnable on the 15th of the same month. It was contended that “the writ was not executed ten exclusive days before the return day.” Applying the same rule as is laid down in § 4 supra, the court hold that “the period between the execution and return day is long enough.” Another case directly in point is Howbert v. Heyle, 47 Kan. 58 (27 Pac. 116), the 5th headnote of which is as follows: "Where the aforesaid petition and notice were served on April 18th, and the hearing was to be had and was had on April 28th, held,, that the service was at least ten days prior to the time fixed for the hearing, within the meaning of the státute.” From the above it will be seen that the notice as to attorney’s fees was given in ample time, and the judge erred in directing a verdict against the plaintiff as to such fees.

Judgment reversed.

Broyles, P. J., and Harwell, J., concur.


author: Per Curiam.

text:
    8718.
    HAYWOOD v. STEPHENS et al.

    Where a case is submitted to an auditor who files a report, and there is a motion to recommit the case, the judgment overruling the motion is not a final judgment, and a bill of exceptions to such a ruling will not be entertained by this court.
    Decided December 14, 1917.
    Complaint; from Hall superior court — Judge J. B. Jones. February 2, 1917.

      Hammond Johnson, for plaintiff in error.

      Joseph G. Collins, W. I. Hobbs, contra.
   Per Curiam.

The bill of exceptions in this ease is as follows: “Be it remembered: in the case of George W. Stephens et al. St. Mark’s Lodge No. 75 F. & A. A. Y. Masons against Eobert Haywood, returnable to the July term, 1914, of the superior court of Hall county, Georgia, being an action for money had and received, etc., the court, on the 20th day of July, 1916, referred said case for a hearing to an auditor, and appointed W. Y. Lance to hear said ease as auditor. 2nd. That on September 25th, 1916, the evidence was heard in said case before W. Y.- Lance, Esq., as auditor, and argument of counsel was had before the auditor in the same on Dec. 18th, 1916; and on Dec. 22nd, 1916, said auditor filed his report in the office of the clerk of Hall superior court in said ease, finding the issues in said case against the said Eobert Haywood, plaintiff in error. 3rd. That on Jan. 10th, 1917, within the time allowed by law after the filing of the report by the auditor, counsel for plaintiff in error filed in the office of tlie clerk of Hall superior court a written motion to recommit said case to the auditor, and also written exceptions to the auditor’s report, both of law and of fact, notice of both of which counsel for plaintiff in error gave to both the auditor and counsel for defendant in error on that same day by serving each of them with a copy of said motion to recommit and of said exceptions to the auditor’s report. 4th. That said case coming on to be heard before his honor Judge J. B. Jones, at the January, 1911', term of Hall superior court, upon the motion to recommit said case to the auditor, and upon the exceptions to the auditor’s report, counsel for the parties agreed to submit all questions of law and of fact arising from the issues in said ea.se to his honor Judge J. B. Jones during vacation, with full power to him to determine the same and enter up a final decree in said case without the intervention of a jury, with the full and usual rights of exception preserved to the parties in the same manner as if the case had been disposed of at a regular term. 5th. That said case coming on, under said agreement, to be heard before his honor Judge J. B. Jones, on the 3rd day of February, defendants in error filed their answer to the motion to recommit; and after argument of counsel upon the same, the court overruled the motion of plaintiff in error to recommit said case to the auditor for the reasons and upon the grounds set out in the motion to recommit said case. To this ruling and the refusal of the court to recommit said case to the auditor and to sustain the motion of plaintiff in error to recommit said case to the auditor, plaintiff in error excepted and now excepts, and assigns the same as error upon the ground that said ruling and refusal to recommit said case to the auditor and to sustain the motion to' recommit said case to the auditor was contrary to law. 6th. To that part of the judgment and decree in said case entered up by the court in which the court decrees as follows: "and the motion to recommit is overruled on answer to motion to recommit and the evidence of waiver before the court appearing in said answer sworn to, by appearing and participating and not objecting and calling attention to taking oath on part of defendant and his attorney, and estoppel after report to raise the objection,” the plaintiff in error excepts and now excepts, and assigns the same as error on the ground that said judgment and decree and .the part thereof.above set out is contrary to law; and that it was contrary to law for the court to overrule said motion to recommit the case to the auditor and to refuse to recommit said case to the auditor. 7th. To the action of the court in refusing to recommit said case to the auditor, and in overruling the motion to recommit said case to the auditor, plaintiff in error excepted and now excepts, and' assigns the same as error upon the ground that the same was contrary to law, and that the court having overruled the motion to recommit said case to the auditor and having refused the motion to recommit said case, and having refused to recommit said case to the auditor, and such refusal, as plaintiff in error contends, being controlling in effect, the judgment and decree rendered in said case could not be and is not a legal termination of the case.” Defendant in error filed its motion to dismiss the writ of error in this case, upon the following grounds: “1st. Because, the bill of exceptions does not set out any error that gives this court jurisdiction to review said case. 2nd. Because said bill of exceptions is a direct bill of exceptions to the, judgment refusing to recommit the case to auditor, which is only a pendente-lite ruling, and can not be excepted to unless some final judgment also is excepted to on which to base said exception. 3rd. Because said bill of exceptions does not assign error upon any final judgment or upon any judgment which would have been final as to plaintiff in error or as to any party thereto if same had been rendered as claimed by plaintiff in error.”

Section 6138 of the Civil Code of 1910 is in part as follows: “No cause shall be carried to the Supreme Court upon any bill of exceptions, so long as the same is pending, in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause, or final as to some material party thereto.” In Prater v. Crawford, 143 Ga. 709 (85 S. E. 829), the decision (paragraph 3) says: “Where exceptions of law and fact to an auditor’s report in an equitable case were filed, and were overruled by the presiding' judge, this was not a final judgment. Nor was the overruling of the motion to recommit the case, .or a part of it, to the auditor a final judgment.” The instant case is clearly distinguishable in its facts from the case of Parker v. Waycross & Fla. R. Co., 81 Ga. 387 (8 S. E. 871).

There being in this case no exception to any final judgment, but only exceptions to an interlocutory ruling, and a motion to dismiss the writ of error having been made, the motion must prevail.

Writ of error dismissed.

Broyles, P. J., and Bloodworth and Harwell, JJ., concur.


text:
    8767.
    Ladd Lime and Stone Company v. Griffin.
    Decided December 14, 1917.
    Complaint; from city court of Valdosta — Judge Cranford. March 16, 1917.

      Franklin & Lang dale, F. K. Wilcox, for plaintiff.

      Whitaker & Dukes, for defendant.
   Bloodworth, J.

The court did not err in sustaining the demurrer and dismissing the petition.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
    8770.
    Flemington, Hinesville and Western Railroad v. Southern Iron and Equipment Company.
   Bloodworth, J.

1. When read in the light of the entire charge to the jury and the qualifying note of the judge in approving the grounds of ■ the motion for new trial, and in connection with the contract and the evidence,, there is no error in the excerpts from the charge, of which complaint is made, which requires the grant of a new trial.

(a) The 4th ground complains that the judge failed to instruct the jury “as to what constituted latent or patent defects, or what constituted reasonable care and diligence in law.” While the judge should explain to the jury the meaning of technical terms which occur in his instructions, a failure to do so will not generally be ground for a new trial, in the absence of an appropriate and timely written request for such explanation. Holmes V. Clisby, 121 Ga. 241 (7) (48 S. E. 934, 104 Am. St. R. 103). See also Pickens v. State, 132 Ga. 46, 47 (63 S. E. 783).

(b) The following principle is applicable to the 4th, 6th, and 7th grounds of the motion: “A correct statement of law embraced in a charge to the jury is not erroneous because the court failed in the same connection to give to the jury other appropriate instructions.” Lucas v. State, 110 Ga. 756 (36 S. E. 87) ; Central of Ga. Ry. Co. v. Grady, 113 Ga. 1045 (39 S. E. 441); Keys v. State, 112 Ga. 392 (4), 397 (37 S. E. 762, 8Í Am. St. R. 63) ; Rawlins v. State, 124 Ga. 31 (16), 50 (52 S. E. 1).

'(c) If fuller instructions than those given were desired, a request for. them should have been made, as required by § 6084 of the Civil Code of 1910.

Decided December 14, 1917.

Complaint; from Liberty superior court — W. B. Stubbs, judge pro hae vice. March 15, 1917.

A. 8. Way, 8. B. Brewton, B. A. Way, B. A. Cohen, for plaintiff in error. O’Byrne, Hartridge & Wright, Paul B. Seabroolc, contra.

2. “This court, by the constitutional amendment creating it, is limited in jurisdiction to the correction of errors of law alone, and therefore has no power to grant a new trial on the ground that the verdict is strongly contrary to the weight of evidence, if there is any evidence at all to support it,” Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875); Cook v. McMurria, 19 Ga. App. 491 (91 S. E. 785); Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732); McCarty v. Keys, 19 Ga. App. 494 (91 S. E. 875).

3. There is some evidence to support the vetdiet; and the judgment is

Affirmed.

Broyles, P. J., and Harwell, J., concur.


author: Broyles, P. J. Harwell, J.,

text:
    8886.
    NATIONAL SURETY COMPANY OF NEW YORK v. WHITE, ordinary, for use, etc., et al.

    1. A general rule of law is that a surety who has paid the debt of his principal is subrogated, both at law and in equity, to all the rights of the creditor. Park’s Ann. Code, § 3567. An exception to this rule, however, exists where in a legal proceeding there are successive sureties. In such a case the last surety is regarded as the primary one; and if he pays the debt of his principal, he has no right of subrogation - against the preceding sureties. This is true whether the dispute is between successive sureties in the legal proceeding itself, or between the surety given in the legal proceeding and the surety in the original transaction upon which the legal proceeding is based. In the latter instance the surety given in the legal proceeding is regarded as a volunteer; and where he pays the debt of his principal, he has no right of recovery over against the surety in the original cause of action, but his sole recourse is against his principal. Park’s Ann. Code, § 5008; Brandt on Suretyship and Guaranty, §§ 288, 518; Justices of the Inferior Court v. Selman, 6 Ga. 432, 440; Schnitzel’s Appeal, 49 Pa. 23; Moore v. Lassiter, 84 Tenn. 630, 633; Hartwell v. Smith, 15 Ohio St. 200, 204; Fidelity & Deposit Co. v. Bowen, 123 Iowa, 356 (98 N- W. 897, 6. L. R. A. (N. S.) 1021, note; Pott v. Nathans, 1 Watts & Serg. (Pa.)-155, 157 (37 Am. D. 456); Hinckley v. Kreitz, 58 N. Y. 583. Tennessee Hospital v. Fuqua, 69 Tenn. 608; Briggs v. Hinton, 82 Tenn. 233; McCormick’s admr. v. Irwin, 35 Pa. Ill, 117; 27 Am. & Eng: Enc. Law (2d ed.), 225. See also ¿Etna Life Ins. Co. v. Middleport, 124 U. S. 537 (8 Sup. Ct. 625, 31 L. ed. 537).
    2. Under the foregoing ruling and the authorities cited, no cause of action against the National Surety Company was set out in the petition as amended, and the court erred in overruling the general demurrer.
    Decided December 14, 1917.
    Action on bond; from Laurens superior court — Judge Kent. May 12, 1917.

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

      G. H. Williams & Son, G. B. Davis, S. W. Sturgis, contra.
   Broyles, P. J.

This was an action on a guardian’s bond executed by H. I. Hilburn as principal, and the National Surety Company of New York as surety. The petition,-omitting the heading and the prayer, is as follows:

“1st. That on the 4th day of June, 1909, H. I. Hilburn was appointed guardian of the person and property of I. H. Hilburn of said county, and that the National Surety Company of New York went on his bond as surety guardian.
“2nd. That H. I. Hilburn'took possession of the property of the said I. H. Hilburn as such guardian and held possession of same for two years, and that in 1911 he was removed and B. M. Hilburn appointed in his place; that in 1914 B. M. Hilburn as guardian of said I. H. Hilburn sued H. I. Hilburn for settlement of his acts and doings as guardian of I. H. Hilburn and obtained a judgment against him in ordinary court, Laurens county, Georgia, for $1800.
“3rd. That said judgment was appealed by H. I. Hilburn to the superior court, Laurens county, Georgia, and gave as surety on said appeal bond W. D. Martin, and that judgment was rendered in the superior court on said appeal against H. I. Hilburn as principal and W. H. Martin, surety, for the sum of $2260.
“4th. That said execution was levi.ed on the property of W. D. Martin, and he was forced to pay same and take transfer to him. A copy of said execution is hereto attached.
“5th. That the default of H. I. Hilburn as guardian for I. H. Hilburn was made while said surety company was on his bond.
“6th. That W. D. Martin as security on the appeal bond and .as transferee of the execution is subrogated to all the rights and remedies of B. M. Hilburn, guardian .aforesaid; hence he brings this suit in the name of the present ordinary E. D. White for the use. of W. D. Martin, transferee, against said H. I. Hilburn and New York National Surety Company, for amount paid out by Mm on said executions, to wit: $2260.
“7th. That W. Á. Wood of said county is the legal agent of said New York National Surety Company; that'H. I. Hilburn is a resident of said county.”

The following amendment to the petition was allowed, subject to demurrer: -

“1st. That the defendant H. I. Hilburn is insolvent, and was at the date the appeal bond was given.
“2nd. That a copy-of the bond sued on and the appeal bond is hereby attached and made a part of this petition.
“3rd. That H. I. Hilburn as guardian of I. H. Hilburn is short with said estate as guardian in the sum of $2300, as .per schedule and statement hereto attached, and that he has no property subject to the judgment and execution recorded against him for said amount.
“4th. That all of said property and money came into his hands as guardian of I. H. Hilburn while he was under said bond furnished by said National Surety Company.
“5th. That H. I. Hilburn has not accounted to said estate, the ordinary, present guardian, or any one else for said money, funds, and assets, and now owes the same and same is past due and unpaid, and that he fails and refuses to pay the same after being demanded to do so.”

Applying the principle laid down in the.first headnote, the petition as amended failed to set -out a cause of action against the National Surety Company of-New York, and the court erred in overruling the demurrer interposed by that company.

Judgment reversed.

Bloodworth, J.', concurs. Harwell, J., concurs dubitante.

Harwell, J.,

concurring dubitante. The weight of authority, it must be admitted, is in favor of the rule insisted on by the plaintiff in error, namely, that the last surety is regarded as the primary one, and that he has no right of subrogation against the preceding surety; but upon examination of these cases it will be found that most of them are cases arising as to sureties in a legal proceeding, as, for instance, sureties in successive appeals. There are, however, respectable authorities which hold to the contrary. See Kane v. State, 78 Ind. 103; Desser v. King, 110 Ind. 69 (10 N. E. 621); Burgett v. Paxton, 99 Ill. 288; Howe v. Frazer, 2 Bob. (La.) 424; Smith v. Anderson, 18 Md. 520; In Brown v. Glascock’s admr., 1 Rob. (Va.), 461, it was held: “A personal decree against an administrator- being recovered by a creditor of the decedent, the administrator appeals, giving an appeal bond with surety; the decree' being affirmed, an arrangement is made between the creditor and the surety in the appeal bond, by which the decree is transferred to the surety, who makes a part of the amount due thereon by execution against the administrator, and then brings an action on the administration bond, in the name of the creditor as relator, against the surety therein bound, in which action a' judgment is recovered for the balance due on the' affirmed decree, being less than the amount of damages incurred by the appeal. Held, the surety in the administration bond has no claim to be substituted to the remedy of the creditor on the appeal -bond, and equity will not interfere in his favor ,.by enjoining the judgment.” Stanard, J., in delivering the opinion in that case, said: “The principle of the case of Parsons v. Briddock [2 Vern. 268] and other kindred cases does not warrant the claim of sureties such as the appellee (the surety on the administration bond) .to be substituted to the remedy of the creditor on the appeal bond; and that the decree in this case, founded on such supposed right of ■substitution, is -erroneous.” The decision therefore holds that the primary liability is upon the surety on the administration bond.

The principle upon which the cases cited by the plaintiff in error were decided is, that, as between the two sureties, the superior equity lies with the first surety, because of the fact that he may be prejudiced by the act of the second surety in prolonging .the litigation. In Hinckley v. Kreitz, 58 N. Y. 586, it is said: “Schuchman and Muller became such sureties and thereby prevented the collection of the judgment until the determination of the appeal, which might be for several years.. But for their intervention the judgment may have been collected of the defendant therein. They scoured the delay by agreeing to pay the judgment. The present defendants may have been injured, and justice would seem to demand that, .between parties thus situated, .the primary liability should rest upon those who intervened to secure .the delay.” In Mitchell v. De Witt, 25 Tex. Supp. 180 (78 Am. D. 561), it was said: “But for their.(the latter sureties’) interposition the plaintiff may have been exonerated from his liability. The principal may then have had visible property subject to execu tion, of which, but for the interposition of the defendants to supersede the judgment and prevent execution thereof, the plaintiff might have availed himself to have satisfaction of the judgment; . . The principle appears to have been first applied in such cases in England in Parsons v. Briddock, 2 Vern. 608, which was approved by Sir William Grant, Master of Bolls, in Wright v. Morley, 11 Ves. 22. . . The authority of this decision is supposed to have been shaken in England by some of the more recent decisions, but it appears to have maintained its authority in this country; and Judge Story, while he supposes it to have been much shaken in point of authority, appears to approve of its equity and justice.” In Hartwell v. Smith, 15 Ohio St. 204, it was said: “In regard to this question of superiority of equities, which is liable to arise in a case of prior and subsequent bonds executed by different sureties for distinct purposes, and both constituting securities in the hands of the creditor- for the same debt, it is well settled that if the interposition of the second surety is for the benefit of the' principal alone, without the sanction or assent of the first surety, he may be prejudiced thereby; as when the effect of the second bond is to prevent the enforcement of present payment from the principal and thus prolong the responsibility of the first surety; in such a case the equity of the first surety is superior, and he is entitled to be subrogated to the rights of the creditor as against the second.” In Moore v. Lasseter, 84 Tenn. 630, it was said: “The reason for all these rulings is that the new surety, by joining the principal in a bond by which he obtains time in the collection of a debt, changes the .terms upon which the original surety was bound, and prejudices his rights.”

The exact question raised in this case has not been passed upon by the appellate courts of this State. Section 5008 of the Civil Code (1910), which is cited as authority by the plaintiff in error, when construed as it should be with the two sections preceding it (sections 5006 and 5007), has reference to a suit where there is more than one party plaintiff or defendant, and one or more of said parties plaintiff or defendant desire to appeal and the others fail or refuse to appeal, arid provides that the security for the party appealing shall be bound for the judgment on the appeal, and, in the event he is compelled to pay the debt or damages for which judgment may be entered, shall have recourse only against the party for whom ho became security; in other words, such security can not control the judgment and collect it out of the parties not appealing, but only out of the party who appeals the case and for whom he became security. It is evident that that section is not applicable to the facts in the present- case.

There is serious doubt in the mind of the writer as to whether the ruling that the last surety is primarily liable is applicable to the facts in this case, as alleged in the petition and the amendment thereto. The National Surety Company was on the bond of H. I. Hilburn, as guardian of I. H. Hilburn. H. I. Hilburn was removed as guardian, and B. M. Hilburn was appointed in his stead. B. M. Hilburn brought suit against H. I. Hilburn, as such guardian, for settlement, obtaining a judgment against him in the court of ordinary. It is alleged that H. I. Hilburn was short with the estate of his ward in a certain sum, and that said money and property came into his hands as guardian while he was under the bond furnished by the National Surety Company, and that he has not accounted to said estate, the ordinary, the present guardian, or to any one else for said money, funds, and assets. Under the allegations there was a breach by H. I. Hilburn of his duties as guardian for which the National Surety Company was liable on its bond. The National Surety Company was not a party to the suit against H. I. Hilburn in the ordinary’s court, and was not bound, except prima facie, by the judgment therein obtained; but would have the right to make defense, when sued on the bond, and show if it could that its principal had not breached his bond. Bryant v. Owen, 1 Ga. 355; Bennett v. Graham, 71 Ga. 213; Gibson v. Robinson, 90 Ga. 756 (2) (16 S. E. 969, 35 Am. St. R. 250); Fidelity & Deposit Co. v. Rich, 122 Ga. 506 (2) (50 S. E. 338). It is further alleged, that H. I. Hilburn, the former guardian, is insolvent, and was so at the date the appeal bond was given; and that he has no property subject to the judgment and execution against him, H. I. Hilburn appealed from the judgment entered in the court of ordinary, and "W. D. Martin signed his appeal bond as surety; and judgment in the superior court was again rendered against the former guardian and surety on the appeal bond, execution issued, Martin paid the judgment, which was transferred to him, and he then sued the National Surety Company on its botid, claiming that he was subrogated to the rights of the second guardian, B. M. Hilburn, and that he should recover of the National Surety Company. In the opinion of the writer, if the National Surety Company had been in any way prejudiced by the... appeal, or might have been prejudiced thereby, the principle stated in the cases relied on by the plaintiff in error would apply and the superior.equity would perhaps exist in its favor. But H. I. Hilburn was insolvent, it is alleged, when the appeal was entered; and taking this allegation to be true, which must be done on demurrer, the judgment could not then have been collected out of him, and the delay caused by the appeal could not, therefore, work to the injury of the National Surety Company. On the contrary, the appeal might enure to the benefit of that company, as it enabled its principal to try his ease before a jury in the superior court and to have it there determined if there should be any liability against him. If that trial had resulted in his favor, it would have enured to the benefit of his surety on his guardian’s bond. The delay on account of the appeal could work no .harm to the National Surety Company in making its defense when sued. It had not been sued, and still had the same right of defending the suit as it had before the appeal. It was not prejudiced in that way by the appeal. Under the special circumstances of this case, no way occurs to me in which the National Surety Company might have been prejudiced, or its risk increased by the appeal. For these reasons, upon principle, the writer can not see "how the superior equity can be said to exist in favor of the National Surety Company. Deferring, however, to the judgment of my associates, I concur in the judgment; but, for the reasons heretofore stated, I have grave doubts of its correctness.


author: Harwell, J.

text:
    8982.
    DOROUGH v. MORRIS.
    1. The city court of Nashville has jurisdiction of the trial of proceedings to evict a tenant holding over, and the trial judge properly refused to entertain objections to the jurisdiction of the court in the instant case.
    2. The defendant, having recognized the right of the sheriff to allow him the occupancy of apartments in the county jail, was estopped from denying such right when the sheriff sought to evict him at the termination of his tenancy and to collect unpaid rent from him.
    3. The evidence was not in.dispute, and supported the allegations in the affidavit. The court did not err in directing a verdict in favor of the plaintiff.
    Decided December 14, 1917.
    Eviction; from city court of Nashville — Judge Christian. June 11, 1917.

      William Story, J. P. Knight, for plaintiff in error.

      Hendriclcs, Mills & Hendricks, contra.
   Harwell, J.

1. The affidavit ou which these proceedings to evict a tenant holding over were based was made before the judge of the city court of Nashville; the warrant was issued by him, and was served by the coroner of Berrien county; and the proceedings were returned by the executing officer to the city court. The counter-affidavit filed by the defendant attempted to make the proceedings returnable to the superior court. When the ease was called for trial the defendant’s counsel objected to its proceeding to trial in the city court, on the ground that "in his counter-affidavit defendant elected that his case be placed in and tried in the superior court of Berrien county, and for that reason this court is without jurisdiction in the premises.” The court overruled the objections to its jurisdiction, and, we think, properly did so. The city court of Nashville was given, by the act creating that court, “jurisdiction to try and dispose of all cases of - whatever nature, except over which exclusive jurisdiction is vested in other courts.” Acts 1905, p. 314. Section 14 of that act further provides that “the judge of the city court of Nashville shall have authority to issue . . warrants to dispossess tenants holding over, . . and to hear the same.” Acts 1905, p. 317. Section 5388 of the Civil Code (1910), which provides for the return of the warrant to dispossess a tenant, and the counter-affidavit, to the superior court, for trial in that court, does not have the effect to vest exclusive jurisdiction in the superior court for the trial of such cases. McDonald v. Vaughn, 130 Ga. 398, 399 (60 S. E. 1060). Hence it' follows that the city court has jurisdiction of such proceedings. Jurisdiction over such proceedings being by statute conferred on the city court, and such proceedings having been in this case returned to the city court by the officer executing the same, the case was triable in that court. Harper v. Tomblin, 127 Ga. 390, 391 (56 S. E. 433). The plaintiff in error relies on the case of Noble v. Burney, 116 Ga. 626 (42 S. E. 1009), to sustain his contention that the proceedings in this case should have been returned to the superior court, and that the city court had no. jurisdiction over them. But in that case the court said: ' “The sheriff chose to follow the code and returned the proceedings to the clerk of the superior court, and that clerk placed the case on the docket of the superior court, as he had the right to do. When it was thus placed on the docket, the case became one pending in the superior court. According to our views, it must remain in that court to be tried or transmitted to the city court by an order of the judge of the superior court.”. When the officer returned the proceedings in the instant case to the city court of Nashville for trial, the xase became one pending in that court; and the court having once obtained jurisdiction of the case, its jurisdiction was not ousted by the mere attempt in the defendant’s counter-affidavit to make the case returnable to the superior court.

2. The affidavit was made by Morris, sheriff of Berrien county, for the purpose of evicting Dorough from the apartments of the county jail which were constructed for the residence of the jailer. It was alleged that Dorough had been employed by Morris, the sheriff, to perform certain duties in connection with the prisoners in the jail, and also to work on the sheriff’s farm, the term of employment to continue as long as Dorough gave satisfaction; that Doroiigh’s services became unsatisfactory to the sheriff, and on April 5, 1916, he paid him all wages earned to date and discharged him, but that the defendant had continued to remain in possession of the apartments in the jail. The defendant demurred generally and moved to strike this affidavit; and he contends that it should have been dismissed for the reason that the sheriff had no right to maintain such an action, but that’it should proceed in the name of the county. Be this as it may, we do not think it lies in the mouth of the tenant to dispute the right of the sheriff to rent him these apartments in the county jail and to evict him therefrom after his term is over. We think that, by analogy to the well-established rule that a tenant can not dispute his landlord’s title to the premises, he. can not dispute his landlord’s right to lease the premises to him after he has gone into possession and occupied the same under such agreement. .It is clear that Dorough entered into possession under the authority of Morris, the sheriff. Morris, therefore, was his landlord; and Dorough having accepted possession under him, that entry was' an acbnowledgment of Morris’s right to allow him the occupancy of the jail, and he can not deny such a right when at the expiration of his tenancy Morris seeks to evict him. See Grizzard v. Roberts, 110 Ga. 41, 45 (35 S. E. 291). It has been held that the fact that the property leased by a private person is public property does not prevent the operation of the estoppel. 24 Cyc. 941 (5). The trial judge did not err in overruling the demurrer.

3. The evidence upon the trial of these proceedings was undisputed, and demanded a finding in favor of the sheriff against his tenant. The latter can'not complain because, in the same proceedings, a judgment was entered against him for rent due the sheriff. Section 5389 provides that in such cases double rent may be recovered, whereas in this case the judgment entered against him was for the rent only during his occupancy. The court did not err in overruling the motion for a new trial, based upon the general grounds only.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.


text:
    8998.
    TURNER v. PLANTERS CHEMICAL & OIL CO.
    1. A bona fide holder of a negotiable promissory note purchased for value and before maturity is protected against the defense that the amount of the note has been paid to the original payee; and where a negotiable note payable at a future date is indorsed by the payee to the plaintiff, in the absence of proof to the contrary the law will presume that the plaintiff took the note before maturity, for value, and without notice.
    2. Where an amendment to a plea is offered before an auditor to whom a case has been referred, and the amendment is treated by the auditor and both parties as having been formally allowed, and evidence in support of it is admitted without objection, and the auditor states in open court that the amendment was so filed and allowed and treated as allowed, but that through inadvertence he failed to sign it as allowed, his mere failure so to sign the amendment will not exclude it from the pleadings.
    3. Under the particular facts of this case, the evidence demanding a finding for the plaintiff, the trial court did not err in rendering final judgment in its favor for the principal, interest, and attorney’s fees as sued for.
    Decided December 14, 1917.
    Complaint; from city court of Eloyd county — Judge Nunnally. May 11, 1917.

      The Planters Chemical & . Oil Company brought suit against Turner on a note given by him on May 20, 1907, to the North Georgia Fertilizer Company, maturing December 1, 1907, and indorsed to the plaintiff before suit was filed. In his plea the defendant admitted the execution of the note, and the notice as to attorney’s fees; but alleged that he had fully paid the note, before its maturity, by delivering to the holder certain promissory notes for guano sold, which were accepted by the holder as payment. By an amendment to his plea the defendant alleged, that the note in suit was a- renewal note, representing a balance on a former note for $195; that the defendant had placed collateral in the plaintiff’s hands to secure the former loan of $195; and that the plaintiff, without defendant’s knowledge, had collected the collateral, amounting to $226.95, which was an overpayment of $31.95, and had concealed from defendant the fact that the same was collected; and defendant pleads the same as a set-off in this case. By further amendment the defendant pleaded that the plaintiff was indebted to him in the sum of $225, which plaintiff had agreed to pay defendant for procuring for plaintiff contracts for fertilizers. This latter amendment was not formally allowed by the court or the auditor to whom the case was referred; but by the bill of exceptions it appears that the auditor, being present at the trial, stated to the court that the amendment was used on the hearing before him, but by inadvertence he failed to sign it as allowed. The issues formed by the petition and the answer as amended appearing to involve a complicated account between the parties, the court, on October 6, 1911, referred the ease to an auditor. On April 9, 1917, the auditor made a report of.his findings of fact and of law, in which he found for the defendant and against the plaintiff the sum of $256.95 principal, and $187.98 interest. To this report' the plaintiff excepted on numerous grounds, which, together with the evidence heard by the auditor, appear in the opinion, infra. The defendant made a motion to dismiss these exceptions, which the court overruled, and then rendered final judgment in favor of the plaintiff against the defendant for the principal amount sued for, together with interest, attorney’s fees, and costs. To this judgment Turner excepted.

      .Harper Hamilton, F. W. Copeland, for plaintiff in error.

      Nathan Harris, contra.
   Harwell, J.

' (After stating the foregoing facts.) The last amendment offered by defendant to his plea of set-off was not marked “allowed” by the auditor. However, the auditor and both parties considered it as allowed, and evidence in its support was introduced without objection. The auditor stated in open court that the amendment was used on the hearing and treated as allowed by him, but by inadvertence he failed to sign it as allowed. .Since this amendment was treated as allowed, and was really allowed by the auditor though not so signed, and evidence was without objection introduced in support of it before the auditor, we are inclined to treat it as a part of the pleadings. It has been held that even after the report of an auditor such an amendment could he offered and allowed, in order to make the pleadings conform to the evidence heard by him. Cureton v. Cureton, 120 Ga. 559 (2) (48 S. E. 162); First State Bank v. Avera, 123 Ga. 598 (2) (51 S. E. 665). However, the evidence heard by the auditor in' support of this plea of set-off was not sufficient to sustain the plea. Even if some of the evidence tended to show that the North Georgia Fertilizer Company was indebted to Turner for fertilizer sold by it to flie Farmer’s Hnion through Turner as agent (which is not passed upon), there is no evidence to show any liability upon the part of the Planters Chemical & Oil Company for this debt.

Neither is the plea that the plaintiff as transferee took this note with notice of its payment, if in fact it had been paid, sustained by the evidence before the auditor. The note'having been indorsed to the plaintiff, the holder thereof, the law presumes that the plaintiff took it before maturity, bona fide, and without notice of its payment. Civil Code (1910), § 4288; Haug v. Riley, 101 Ga. 373 (4), 386 (29 S. E. 44, 40 L. R. A. 244); Wade v. Elliott, 11 Ga. App. 646 (2), 648 (75 S. E. 989); Oliver v. Miller, 130 Ga. 72 (60 S. E. 254); Butler v. First National Bank, 13 Ga. App. 35 (3) (78 S. E. 772). There is no evidence to rebut this presumption; and hence the Planters Chemical Company is presumed to have been an innocent purchaser of the note, before maturity, and not subject to any equities that may have existed between the North Georgia Fertilizer Company, the original payee, and Turner, the maker. For these reasons we think the evidence demanded a verdict for the plaintiff for the amount of the note, and for attorney’s fees.

As to the point, insisted on by the plaintiff in error, that the court should have submitted the matter to a jury: It appears from the record that when the auditor’s report was returned, counsel for both parties agreed in writing “that it is not necessary that said cause shall be re-referred, but that said cause shall he tried before the court” etc. The order of the judge recites that “exceptions of law in the above-stated ease coming on regularly to be heard before me, after hearing arguments and considering the pleadings, the evidence, the report, and everything filed in said case, it is ordered,” etc. No exceptions of fact were filed by either party. It would seem, therefore, that having tried the matter before the judge without objection being raised, the plaintiff waived any right of trial by a jury, if any such existed. Moreover, it has been held that when exceptions of fact are filed and the evidence demands a certain finding on one of the issues, a new trial will not be granted because the trial judge did not submit that issue to a jury. This is upon the same principle that a new trial will not be granted for erroneous rulings of the trial court where the evidence demands the verdict. Mason v. Commissioners, 104 Ga. 35 (2), 40 (30 S. E. 513). There being no issue of fact, and a , finding against the defendant being demanded by the evidence, the court did not err, under the particular facts of this case, in entering up final judgment against the defendant for the principal of the note, and for interest and attorney’s fees.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.


text:
    9011.
    JACKSON v. DOOLITTLE.
    1. Where one is employed for a certain time at a specified monthly salary under an express contract, and after the expiration of that time, without further agreement, continues to serve his employer, who accepts his services, a promise' by the employer to pay therefor at the rate prescribed in the contract is implied. Hence there is no merit in the contention of the plaintiff in error that no contract between the parties was shown, as alleged in the petition. Standard Oil Oo. V. Gilbert, 84 Ga, 714, 717 (11 S. E. 491, 8 L. R. A. 410) ; Tippin v. Brockwell, 89 Ga. 467 (15 S. E. 539).
    2. The court did not err in allowing another of the defendant’s employees to testify: “I am not working on the six per cent, basis myself.” Although, as contended by the plaintiff in error, any contract under which, another employee was working would not illustrate the contract between plaintiff and defendant, this evidence was admissible for the purpose of contradicting the witness’s former testimony that both his own and the plaintiff’s contract of employment had been changed from a salary basis to a commission basis.
    3. The court did not err in charging the jury as follows: “If you find from the evidence that the plaintiff was employed as a salesman by the defendant under a contract which terminated on January 1st, 1917, at $65 per month, and you find that there was no further express contract between the parties, and the plaintiff continued to work for the defendant in his store as a salesman, then the plaintiff would be entitled to recover for the time he served in said store at' the rate of $65 per month, less any deduction of any- amounts paid him.” This charge was a correct statement of the law applicable to the facts in this case.
    4. The evidence authorized the jury to find that the facts enumerated by the judge in the-charge quoted above were true; and, the plaintiff having written off from the verdict the amount of set-off proved by the defendant, the court did not err in refusing the defendant a new trial.
    Decided December 14, 1917.
    Complaint; from city court of Sandersville — Judge Jordan. June 2, 1917.

      Evans & Evans, for plaintiff in error. W. M. Goodwin, contra.
   Harwell, J.

Doolittle sued Jackson on an alleged contract of employment, claiming that Jackson was due him salary at the rate of $65 per month from January 1, 1917, to March 19, 1917, less ‘$90 paid him by Jackson. His evidence on the trial showed, that he had been employed by Jackson under an express contract for a term beginning September 1, 1916, and expiring January 1st, 1917, at a monthly salary of $65; that he served Jackson during the term of their contract, and, without any further agreement as to his salary, continued to work for Jackson after the expiration of their contract, and worked for him until March 19, 1917, when he voluntarily left Jackson’s employment. The defendant, on the other hand, contended, in his evidence, that he called Doolittle and another employee, McDaniel, to him before January 1, 1917, and told them that business was dull and he could not afford to pay them the same salary as theretofore, and informed them that if they continued in his employment he could only pay them six per cent, upon their gross sales, and that Doolittle continued in his employment after January 1, 1917, under such an understanding; that Doolittle had earned, under this new agreement, $58.39; that he had advanced him during this time $90; and that he owed the defendant $11.40 for credit he had extended to' customers and become personally responsible for. The jury found for the plaintiff an amount representing his salary from January 1, 1917, to March 19, 1917, at $65 per month, less the $90 admittedly paid to him by defendant. On hearing the motion for-new trial the court required the plaintiff to write off from his judgment the sum of $11.40, which the defendant’s undisputed evidence proved to be due him from plaintiff, and then overruled the motion for new trial.

It is not necessary to add anything further to the headnotes.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.


text:
    9022.
    COPELAND v. TYUS & PREVATT.
    1. The court erred in admitting, over objection, the testimony complained of in the motion for a new trial as' being conclusions of the witnesses and for other reasons stated. Evidence as to- the profits made in a similar business by another person in a different location were also inadmissible.
    2. The evidence was not sufficient to authorize a recovery of special damages, but authorized a verdict for nominal damages only. Hence, the verdict' for $400 was excessive, and the court erred in overruling the motion for a new trial.
    Decided December 14, 1917.
    Action for damages; from city court of Cairo — Judge Willie. June 19, 1917.
    The petition, as amended, of Tyus & Prevatt, a partnership, alleged: That the defendant, Copeland, on or about September 28, 1914, entered into a verbal contract with the plaintiffs for the rent of a certain stable and residence for a period of twelve months, commencing on October 1, 1914, at an agreed rental of $40 per month; that Tyus, for the three years immediately preceding -the making of this rental contract, had been conducting a livery business in said stable, and had established a line of patrons and had built up a good trade there, and was familiar with the profits derived from the business; that the plaintiffs went into possession of said building as a.'firm, and had all of their stock, vehicles, and feed stuff duly installed therein; that on October 2, 1914, the defendant, without any legal authority, forcibly and violently ejected them from the stables and removed their property therefrom; and that by said trespass and violent ejection the defendant forced them to leave a well-established business; thus damaging them in the sum of $800. They obtained a verdict of $400. The defendant’s motion for a new trial was overruled, and he excepted.

      Li W. Rigsby, Claude Christopher, M. L. Ledford, for plaintiff in .error. J. Q. Smith, contra.
   Harwell, J.

1. In the first and third special grounds of the motion for a new trial the following testimony of Prevatt was admitted over the objection of the defendant: “The stable would have been worth $75 per month to us if Mr. Copeland had not deprived us of possession.” “I expected to profit by the business that had been built up and established by Mr. Tyus at the stand previous to the time I went into the business with him. The stable would have been worth $75 per month more than the contract price.” Defendant objected to the admission of this testimony, upon the ground that it was a conclusion, and for other reasons stated in the motion for a new trial. This testimony was clearly a conclusion of the witness, and the court erred in admitting it.

2. In the second special ground of the motion for a new trial the following testimony of Walsh was admitted over the objection of the defendant: “Tyus and Prevatt ought to have been able to have made $150 or $175 per month. I made that amount out of the livery-stable business while operating my business before I sold out to Tyus and Prevatt.” The defendant objected to this testimony as a conclusion of the witness, and “because plaintiff could not be allowed to recover prospective profits, and because the amount of the business the witness had done did not illustrate what the plaintiffs could have made.” The testimony of this witness, that Tyus and Prevatt ought to have been able to make $150 or.$175 a month, was clearly a conclusion, and was inadmissible. The latter part of his statement, “I made that amount out of the livery-stable business while operating my business before I sold out„tq_ Tyus and Prevatt,” was also inadmissible, because what he h^d made out of a similar business in a different place, and probably under widely different circumstances, would not be illustrative of. what the plaintiffs would have made in the premises leased from the. defendant. While the character of the business conducted by the witness was the s.ame, the amount of the stock, vehicles, and. labor employed by him might have been entirely different, and there is no evidence to show they were substantially the same. The business of Walsh was conducted in a different location in the city; and there were too many contingencies to enter into the situation which might have' brought about different results in their respective profits.

3. In ground 4 of the motion for a new trial the following evidence of Tyus was admitted over the objection of the defendant: “The stables would have been worth as rental $75 more than the contract price. I had established a line of customers and patrons, and the firm of Tyus & ‘Prevatt would have profited by them had they remained in the stables at that place.” The defendant objected to the admission of this testimony, upon the ground that it was a conclusion, and because it had not been shown that Tyus & Prevatt had succeeded to the good will of Gordy Tyus. This testimony was clearly inadmissible as being a conclusion, and the court erred in overruling the objection to it.

4. This case is before this court for the second time. See Copeland v. Tyus, 18 Ga. App. 196, where it was held, that the verdict for special damages was unwarranted by the evidence; that, a verdict for nominal damages alone being authorized by the evidence, the verdict for $550 was excessive; and that the court erred in overruling the motion for new trial. While in the present record there is some additional testimony as to the, rental value of the stables, we think the evidence is too meager, indefinite, and uncertain, when the conclusions of the witnesses are eliminated, to be the basis of any recovery of special damages, and that under the evidence a recovery of nominal damages only is authorized. Swift v. Broyles, 115 Ga. 885 (42 S. E. 277, 58 L. R. A. 390); Batson v. Higginbotham, 7 Ga. App. 835 (2) (68 S. E. 455). In the case of Bass v. West, 110 Ga. 698 (36 S. E. 244), correct rules are stated for the trial of cases of wrongful eviction of a lessee or tenant; and it was said: “Where the amount of the profits lost and the value of the good-will of the business can be ascertained with a reasonable degree of certainty, they should be allowed in estimating the value of the lease for the purpose for which it was being used. In cases, however, where these elements are merely speculative and conjectural and can not be ascertained with reasonable certainty, no allowance should be made therefor. This does not mean that the amounts of these elements of damage should necessarily be reduced to an exact calculation before a recovery could be had, but there must be sufficient data to enable a jury with a reasonable degree of certainty and exactness to ascertain the loss.” In the first place, there must be allegations in the petition which would authorize the introduction of testimony on these matters; and in the second place, 'if it is proposed to offer evidence as to the probable profits of a business, as illustrative of the value of the rental contract, it must be shown either that the business is established, or else that it has succeeded to an established business, and that the businesses are substantially the same. For instance, in the present case, before evidence should be admitted as to what Tyus had been making in his business, as illustrative of the profits which Tyus and Prevatt would probably have made, it must be shown that Tyus and Prevatt had taken over the business conducted by Tyus, and that it was substantially the same ’in character, capital, and labor employed, and in the number of stock, buggies, wagons, etc., which it owned and used. Inasmuch as the testimony authorized the recovery of noniinal damages only, the verdict for $400 was excessive, and the court erred in overruling the motion for new trial.

Judgment reversed,.

Broyles, P. J., and Bloodworth, J., concur.


text:
    9037.
    LAMBRIGHT v. EVERETT.
    1. The written contract between the parties, fairly construed, did not limit the architect, in drawing the plans and making the specifications for the building, to any fixed sum as to the cost of the building. Eor this reason the portions of the. demurrer which set up that the plaintiff had failed to allege compliance with his contract, and that the petition set forth no cause of action, were properly overruled; There was no merit in the other grounds of the demurrer.
    2. The special grounds of the motion for new trial, when considered with the record in the case, do not show any error committed by the trial court which would authorize the grant of a new trial.
    3. The evidence, while sharply in conflict, authorized the verdict, and the court did not. err in overruling the general grounds of the motion for a new trial.
    Decided December 14, 1917.
    Complaint; from Fulton superior court — Judge Bell. April-20, 1917.

      Everett, an architect, sued Lambright upon a contract the material portions of which are as follows: "That the said Dr. W. E. Lambright has employed the said A. E. N. Everett to prepare working plans and specifications. for apartments according to sketches already submitted and accepted with changes; that the said A. P. N. Everett agrees to do all the work in making plans and specifications for the sum of 3% of approximated cost, viz., $30,000.00. Should Dr. W. E. Lambright wish the said Everett to supervise the construction, he- agrees to pay an additional sum for such supervision of 2% on the cost of building completed.”
    The petition alleged that the defendant was indebted to petitioner in the sum of $900, by reason of the fact that plaintiff and defendant had entered into said contract, “by virtue of which the plaintiff furnished to the defendant drawings and specifications for an apartment-house to be erected by the defendant, for which the defendant agreed to pay the sum of nine hundred dollars ($900.00).” The petition did not anywhere allege that the drawings and specifications prepared by the architect contemplated the erection of an apartment-house to cost approximately $30,000, nor was there any allegation as to the estimated cost of erecting the apartment-house according to the drawings and specifications submitted. The defendant demurred both generally and specially to the petition, and the demurrer, was overruled. One ground of it is substantially as follows: Plaintiff is suing on a contract which shows on its face that no liability rests upon defendant to pay according to its terms until plaintiff has fulfilled his part thereof, and it does not appear from the petition that the plaintiff has fulfilled his part of the contract. It was insisted that the petition was defective because the plaintiff failed to allege that his working drawings and specifications called for a building costing $30,000, or approximately that sum. The defendant further demurred on the ground that the petition set forth no cause of action, and on other grounds which are noted in the opinion.

      Foster & StocTcbridge, for plaintiff in error.

      Bachman & Simmons, contra.
   Harwell, J.

(After stating the foregoing facts.)

1. Paragraphs. 1 and 3 of the demurrer deal with the sauté question. The trial judge sustained paragraph 1 of the demurrer, with leave to amend, and the plaintiff so amended his petition as to cure the defect pointed out in these paragraphs of the demurrer. Paragraph 4 of the demurrer takes exception to the petition upon the ground that the contract annexed thereto is too vague, indefinite, and uncertain in its terms to be capable of enforcement; and paragraph 5 is based upon the ground that the contract does not show the place of performance. There is no merit in these grounds of the demurrer, and the court did not err in overruling them.

.Paragraphs 2 and 6 of the demurrer present the same question; that is, whether a cause of action is set out; since, the plaintiff does not allege that he prepared plans and specifications for a building to cost thirty thousand dollars, or approximately that sum. It is insisted by the defendant that the written contract fixes the cost of the building at approximately $30,000, that it was the duty of the architect to prepare plans and specifications for a building to cost approximately this sum,- and, as he failed to allege in his petition that he had done this, that he did not allego compliance with his part of the contract. It is true that he must allege compliance with his part of the contract before he can recover his fees for his services. It will be noted that the clause in which the phrase, “approximated cost, viz., $30,000,” is used is in connection with the fixing of the architect’s fees. The clause preceding this deals with the preparation of the plans and specifications, and 'provides that he is to prepare working plans and specifications for apartments according to sketches already submitted and accepted with changes. We do not think that the* written contract specifically limits the architect to plans and spec-, ifications for apartments costing approximately $30,000. These plans were to be prepared according to sketches submitted and accepted. These sketches might or might not call for a building costing approximately $30,000. They were doubtless preliminary sketches, and would not of themselves fix the cost. The cost would largely depend upon the material of which the building was to be constructed. Preliminary sketches are generally designed to give an idea of the general appearance of the building and its size. The specifications contain all the details of the construction, setting forth minutely the material to he used in every part of the building. It is well known that the cost of the building can not be definitely fixed until the specifications are prepared. Under the contract in the instant ease the only obligation placed upon the architect is to prepare plans and specifications according to such sketches. These sketches not being set forth or attached to the contract, it is of course impossible to determine from the contract itself as to the size of the building, or to gather from the contract any idea as to the approximate cost, except from the expression used in fixing the architect’s fees. We think that a fair construction of the contract is that the use of the expression, “approximated cost, viz., $30,000,” was simply for the purpose of fixing the fees of the architect, and not for the purpose of fixing the cost of the building; and that by the use of this expression in the clause which deals with the architect’s fees it was not the intention of the parties to fix the cost of the building, and to limit the architect, in drawing his plans and making his specifications, to a cost approximating that sum and no more. For these reasons we think that the court did not err in overruling paragraphs 2 and 6 of the demurrer. The petition alleged compliance by the architect, by alleging that “plaintiff completed said plans and specifications and delivered same to the defendant.” '

2. Ground 1 of the amendment to the motion for new trial complains of the court’s refusal to permit certain questions to be asked of the plaintiff, on cross-examination, as to the agreement about the cost of the building. By examination of the brief of’ evidence it appears that the trial judge, after making the ruling complained of, receded from it and admitted testimony along this line. Everett was permitted to testify on cross-examination exhaustively as to the purported agreement between himself and Lambright, fixing the cost of the building at $30,000. We think, therefore, that this error, if such, was cured by the subsequent-ruling admitting the testimony of Everett as to this agreement.

3. Ground 2 of the amendment to the motion complains of the failure of the court to admit in evidence a proof of a claim by* Everett, the plaintiff, in a bankruptcy court in another fnatter.;,. While this proof of claim, as shown by the record, refers to Lam-bright’s specifications, it does not show that these plans and specific cations were identical with those prepared by. Everett-"for Lamr bright in the present case; and for this reason this testimony would’not be relevant and was properly excluded. - T.-iv:

4. Ground 3 complains of certain excerpts, from the charge-- ufb the court on the alleged agreement between, the parties-as to ..the'i cost of the building. When this excerpt is taken in connection with the whole charge, there is no merit in the complaint. The court fully and fairly submitted to the jury this issue between’the parties.

5. Ground 4 insists that the court in construing the contract held that it was unambiguous, and thereby erred; and that the court erred in refusing to allow the defendant to introduce evidence to show that $30,000 was the approximate cost of the building agreed upon. Considering this ground with the entire record, it is very apparent that this ruling, if there was such, was harmless to the defendant because of the fact that the court admitted parol evidence on his behalf to show an agreement between the parties that the cost of the building was to be $30,000, and that the plans and specifications, as drawn by Everett, were not in accord with this agreement, but called for a building costing a much larger sum. This question was fully and fairly submitted to the jury in the charge of the court. The trial judge instructed the jury that if there was such an agreement between 'the parties, and if the plans and specifications did not provide for a building costing approximately $30,000, the plaintiff would not be entitled to recover. Eor that reason the defendant was given full recognition by the trial judge of this insistence on his part, and the issue was fully and fairly submitted to the jury, which decided against him on this issue. In fact the pressure of the case was on this proposition, and it was the main question at issue.

6. The fifth special ground of the motion for new trial complains of the refusal of the court to instruct the jury, as requested, that if the building cost $40,000 according to the plans and specifications prepared by Everett, it would not be a compliance on the part of Everett with his contract, and the plaintiff would not be entitled to recover. The court did not,err in refusing to charge as requested. It would clearly be error for the court to tell the jury that $40,000 was not approximately within the agreed cost of the building. That was distinctly a matter for the jury to determine.

This disposes of all the special grounds of the motion for a new trial. As to the general grounds, the evidence, while - sharply in conflict, was determined by the jury against the contentions of the defendant, and authorized the verdict, which was approved by the trial judge, whose judgment overruling the motion for new trial is

Affirmed.

Broyles, P. J., and Bloodworih, J., concur.


author: Broyles, P. J.

text:
    9196.
    Carter v. The State.
    Decided December 19, 1917.
    Accusation of misdemeanor; from city court of Blackshear —Judge Mitchell. August 4, 1917.

      J. B. Thomas, for plaintiff in error.

      8. F. Memory, solicitor, contra.
   Broyles, P. J.

1. Upon a trial under an accusation based upon section 22 of the act of the General Assembly of Georgia, approved Mareh 28, 1917 (Acts of Extraordinary Session, March 20-28, 1917, p. 18), when the evidence for the State shows that the apparatus for the distilling or manufacturing of whisky was found upon the defendant’s premises, and that the defendant was in actual' possession of the premises^ such evidence, by the express terms of the act, is prima facie evidence that the defendant had knowledge of the fact that the .apparatus was located upon his premises; and the burden of proof is then upon him ‘to show that he had no such knowledge.

2. Under the ruling in the preceding note, and the facts of this case, it was not errol- for the court to fail to charge the jury upon the law of circumstantial evidence.

3. In the absence of a timely written request, the court did not err in failing to explain to the jury what the term “premises” meant.

4. The court did not err in giving the following charge: “I charge you that it is necessary upon the part of the State to prove, among other things, that the apparatus for the distilling or manufacturing of the liquors named, or any of them as named in said accusation, was found upon premises in this county in the actual possession of the defendant, or located thereon, and was found or located thereon since the 28th day of March, 1917.”

5. There was some evidence which authorized the verdict; and it having been approved by the trial judge, this court has no authority to interfere.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9197.
    Williamson v. The State.
    Decided December 19, 1917.
    Accusation of sale of liquor; from city court of Blackshear— Judge Mitchell. August 4, 1917.

      J. B. Thomas, for plaintiff in error.

      8. F. Memory, solicitor, contra.
   Bloodworth, J.

There is no merit in the special grounds of the motion for new trial. The evidence is sufficient to support a conviction, and no error was committed when a new trial was refused.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.