text:
    10447.
    HOBGOOD v. THE STATE.
    An accusation of public indecency which, charged that the offense was committed by exposure of the private parts in a public place where the accused might have been seen by many persons, and was seen by named persons, was defective in not showing that the exposure itself was or might have been seen; and on general demurrer it should have been quashed. (Broyles, P. J., dissents.)
    Decided September 19, 1919.
    Accusation of public indecency; from city court of Tifton— Judge Price. March 10, 1919.

      John Henry Pool, for plaintiff in error,
    cited, as to accusation of public indecency: Penal Code (1910), § 381; Morris v. State, 109 Ga. 351; Lockhart v. State, 116 Ga. 557; Gilmore v. State, 118 Ga. 299, 301.

      J. S. Ridgdill, solicitor, contra.
   Bloodworth, J.

The accusation in this ease charged that the accused “did commit the following acts of public indecency, consisting of the exposing of his private parts, in a public place, said public place being near the public bathing pool in the city of Tifton, said county, said exposure being where said R. Hobgood might have been seen by many persons, and where in fact where he, the said R. Hobgood, was seen by W. W. Reynolds, Jim Webb, Earnest Sellers, Willie Powell, Roy Sháw, and others.” To the accusation a demurrer was filed. The accusation is defective in that it alleges that the accused himself, instead of the indecent exposure, was seen by certain persons and might have been seen by others.

As the demurrer should have been sustained and the accusation quashed, the further proceedings were nugatory.

Judgment reversed.

Stephens, J., concurs. Broyles, P. J., dissents.


source: Caselaw Access Project

author: Stephens, ’J.

license: Public Domain

text:
    10096.
    Hurley v. District Grand Lodge No. 1, etc.
   Stephens, ’J.

1. “ Whenever any person may have any claim or demand upon any insurance company having agencies, or more than one place of doing business, it shall be lawful for such person to institute suit against said insurance company within the county where the principal office of such company is located, or in any county where said insurance company may have an agent . . , or in any county where such agent .. . was located at the time the cause of action accrued, or the contract was made out of which said cause of- action arose.” Civil Code (1910), § 2563.

2; In a suit against a fraternal benefit society by a beneficiary of a policy issued by the society, where it is shown that, while the Supreme Lodge of the society had its head office in another county within the State, it had a subordinate lodge in the county in which suit was pending, in which subordinate lodge the deceased had applied for membership and had been initiated, and had paid his dues to the secretary of the same, who sent them to the head office, and that the subordinate lodge ha'd in the county a place where it met regularly, the jury were authorized to infer that the subordinate lodge was the agent of the defendant in the cqumty in which the suit was pending, and that the court had jurisdiction. It follows, therefore, that upon the trial of an issue formed upon a plea to the jurisdiction, where the evidence showed the above facts, it was error for the trial judge to direct a verdict in behalf of the defendant, sustaining the plea to the-jurisdiction. Supreme Circle of Benevolence v. Beall, 18 Ga. App. 425 (89 S. E. 630).

Decided September 19, 1919.

Action on insurance policy; from Wilkes superior court—Judge Walker. August 6, 1918.

Clement E. Sutton, for plaintiff.

Richard B. Russell, Holbrook & Corbett, Colley & Colley, for defendant.

3. The jurisdiction of the superior court of Wilkes county, in which the suit was pending, and where the defendant had an agent, was not ousted by an agreement signed by the insured in his application for the issuance of the policy, or by its being stipulated on the back of the policy issued that “suit shall be instituted on said policy against said District Grand Lodge only in the State court of Eulton county, as the order has no agent or agency in any other county of said State.” Supreme Circle of Benevolence v. Smith, 21 Ga. App. 678 (94 S. E. 1034). See Benson v. Eastern Bldg. Asso., 174 N. Y. 83 (66 N. E. 627).

Judgment reversed.

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


author: Stephens, J.

text:
    10116.
    Huffmaster et al. v. Jones Brothers et al.

    Decided September 20, 1919.
    Exceptions to auditor’s report; from Campbell superior court-judge Smith. July 9, 1918.

      Hall & Jones, for plaintiffs in error.

      S. Holderness, Buford Boykin, contra.
   Stephens, J.

The trial judge having by consent of counsel passed upon exceptions of fact and of law to an auditor’s report, and the evidence being sufficient to support his findings upon the facts, and no error of law appearing, the judgment is affirmed.

It appearing, however, that the award of $1,138.49 to Jones Brothers should be debited with $407.80 (already paid to them by the sheriff), which the trial judge inadvertently failed to deduct, it is directed (counsel for defendants in error having already consented to the modification) that the sum of $407.80 be written off the amount of the award to Jones Brothers, and that the judgment bo modified accordingly.

Judgment affirmed, with direction.

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


text:
    10150.
    Central Manufacturers Mutual Insurance Co. v. Graham.
   Stephens, J.

1. Where a fire-insurance policy insures against loss or damage to personalty, caused by fire or water used in extinguishing or cheeking fire, and damages are claimed under such policy by the insured, a failure upon the part of the insurance company to investigate the alleged loss or damage, and a denial upon the part of the company of any liability whatsoever upon the ground that such loss or damage was not recoverable under the policy, but arose from some cause not covered by the policy, may be considered as evidence of bad faith on the part of the insurance company in refusing to pay for such loss or damage, when it appears that the insured had within the proper time notified the insurance company of his loss or damage and had requested payment therefor, stating that such loss ■ or damage had been caused by fire and water, the same being a loss or damage for which the insurance company was liable under the policy. Such refusal upon the part of the insurance company to adjust or pay for any loss or damage claimed, after having received such notice and demand for payment, constitutes evidence of bad faith in a suit based upon section 2549 of the Civil Code of 1910, even though the insured, in a subsequent conversation with the insurer’s adjuster, claimed damages for such loss by reason solely of concussion from dynamite, a ground not covered by the policy. Particularly does such refusal on the part of the insurance company under the above circumstances constitute evidence of bad faith when it appears from the evidence of the insurer’s adjuster that, within a few days after such conversation with the insured and within thirty days after the loss occurred, the former was put on notice by the attorney for the insured that such loss or damage was covered by the policy, having been caused by water used to extinguish or check fire, g,nd that the insured so claimed.

2. Eor the reasons above set out it was not error to exclude the testimony of a witness who was an employee of the insurance company, to the effect that the insurance company refused to investigate the alleged loss because the insured had claimed damages not covered by the policy, and because it had been reported to the witness that the insured had so claimed and would not comply with the rules of the insurance company, but was demanding the full value Of the policy.

3. The right of an insurance company to require preliminary proof of loss under the terms of a fire-insurance policy is, upon denial of any liability, waived. Civil Code (1910), § 2490.

4. In a suit to recover against an insurance company for loss or damage arising under an insurance policy, where attorney’s fees and damages for bad faith are claimed under the Civil Code (1910), § 2549, a failure on the part of the insured to recover the full amount claimed and sued for will not, after a denial of any liability whatsoever by the in: surance company, preclude the insured from recovering against tha insurance company such penalty or attorney’s fees on account of any bad faith on the part of the insurance company in refusing to pay the loss.

Decided September 20, 1919.

Action on insurance property; from Fulton superior court— Judge Ellis. September 28, 1918.

Moore & Pomeroy, for plaintiff in error.

Hendrix & Silverman, contra.

5. "Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article, but may testify as to value, if he has had an opportunity for forming a correct opinion.” Civil Code (1910), § 5875.

6. If the court erred in its charge to the jury as to the credibility of the witnesses as claimed in the 14th ground of the amendment to the motion for a new trial, the charge was as favorable to the plaintiff in error as to the defendant in error, and therefore was harmless. The 7th, 8th, and 9tlj grounds of the amendment to the motion for a new trial, not being insisted upon by counsel for plaintiff in error, ■ are treated as abandoned.

7. The remaining assignments of error are wholly without merit.

8. The evidence is sufficient to authorize the inference that the insurance company acted in bad faith and that the damage was caused from water used to check or extinguish fire; and it otherwise supports the verdict.

'Judgment affirmed.

Broyles, P. J., and Bloodworlh, J,, concur.


author: Peb Curiam.

text:
    10157.
    Strickland v. Strickland.
    Decided September 20, 1919.
    Levy and claim; from Gordon superior court—Judge Tarver. August 27, 1918.

      Stair & Paschall, Maddox, McCamy & Shumate, for plaintiff in error.

      Marie Bolding, P. A. Cantrell, contra.
   Peb Curiam.

Where a constable is specially deputized by the sheriff and sworn in for the purpose of serving a particular writ, he becomes a de facto deputy sheriff, and service by him is legal. Twiggs v. Hardwick, 61 Ga. 273; Hinton v. Lindsay, 20 Ga. 746; Blount v. Wells, 55 Ga. 282. See also Hartshorn v. Bank, 15 Ga. App. 173 (82 S. E. 805), where it is held that when a constable, although irregularly appointed or qualified as a deputy sheriff, assumes to act as a lawful deputy sheriff, his acts are those of a de facto officer, and therefore legal.

The court did not err in refusing to dismiss the levy:

Judgment affirmed.

Broyles, P. J., Bloodioorth and Stephens, Jj., concur.


author: Per Curiam.

text:
    10193.
    Citizens Bank v. Town of Ludowici et al.

    Decided September 20, 1919.
    Complaint; from Liberty superior court—Judge Sheppard. September 17, 1918.

      Oliver & Oliver, Seabroolc & Kennedy, for plaintiff.

      Melmlle Price, Parker & Parker, for defendant.
   Per Curiam.

1. The petition as originally filed showed an action in three counts against a municipal corporation and its mayor and aider-man individually, to recover on a promissory note given to secure a loan to the municipality. In one.of the counts an action for money had and received was attempted, but, while it was so designated by the pleader, its recitals plainly evidence an action on a contract.

(a) The petition, failing to show that the debt evidenced by the note sued on was within the municipality’s power to contract or within the saving exceptions of the constitution (Civil Code, § 6563), was subject to the general demurrer interposed. See Whigham v. Gulf Refining Co., 20 Ga. App 427 (5, 6), 428 (93 S. E. 238).

2. The defect stated above was not cured by the amendment seeking to elaborate the 3d count of the petition and to convert the action into one for money had and received (even if such procedure were permissible), and the amendment was properly disallowed. The statement therein that “the money had and received by said defendants from petitioner . . became money actually and beneficially applied' by the said defendants to the authorized objects and lawful municipal uses of the said Town of Ludowici, or for which revenue or money of the said Town of Ludowici may be lawfully used and applied by said Town of Ludowici,” was a mere conclusion of the pleader, there being no facts recited to authorize it. See, in this connection, Butts County v. Jackson Banking Co., 129 Ga. 801, 810, 811 (60 S. E. 149, 15 L. R. A. (N. S.) 567, 121 Am. St. R. 244) ; Tate v. Elberton, 136 Ga. 301 (2) (71 S. E. 420); City of Dawson v. Waterworks Co., 106 Ga. 697 (6), 707, 734 (32 S. E. 907).

Judgment affirmed.

Broyles, P. J., Bloodioorth and Stephens, JJ., eoneur.


author: Broyles, P. J.

text:
    10922, 10923.
    HINES, director-general, v. JOLLY. HINES, director-general, v. KELLEY.
    10924, 10925.
    Permission to withdraw the bill of exceptions and file it in the court below as exceptions pendente lite will not be granted where due service of the bill of exceptions was not made or waived and where the only reason given for this omission is “inadvertence” on the part of the plaintiff in error.
    Decided October 4, 1919.
    Motion for withdrawal of bill of exceptions, etc.

      McDaniel & Black, for movant. Colquitt & Conyers, contra.
   Broyles, P. J.

In each of the above cases the plaintiff in error filed a petition in which he asked this court to grant him permission to withdraw his bill of exceptions and to direct that the official copy of the same of file in the clerk’s office of the trial court be treated as exceptions pendente lite. In each case the bill of exceptions assigned as error the overruling of the defendant’s motion to transfer the case to the Federal court, and the reason assigned in the petition for the request made was that “through inadvertence” the plaintiff in error had failed within the proper time to have counsel for the defendant in error acknowledge service of the bill of exceptions, and that in the subsequent acknowledgement of service by such counsel the right to move for the dismissal of the bill of exceptions for lack of service within the proper time was specifically reserved. The petition to this court was dated October 1, 1919, and showed that the judgment of the lower court which was excepted to was rendered on September 8th, 1919, and consequently that the thirty days in which the plaintiff in error had the right to apply for a bill of exceptions had not expired.

As the only reason given in the petition as to why the acknowledgment of service of the bill of exceptions was not secured from counsel for the defendant in error was “inadvertence,” the petition is denied. Counsel for the plaintiff in error by proper diligence could have perfected service of the bill of exceptions within the time required by law, and thereby have rendered their petition to this court unnecessary. See, in this connection, United Glass Co. v. McConnell, 110 Ga. 617 (36 S. E. 58); Ross v. Mercer, 115 Ga. 353, 355 (41 S. E. 594); Harvey v. Bowles, 112 Ga. 421 (3) (37 S. E. 64); Berryman v. Haden, 112 Ga. 752 (4) (38 S. E. 53); Farmers & Merchants Bank v. Burwell, 120 Ga. 540 (2), 543 (48 S. E. 145); Savannah Electric Co. v. Tuck, 132 Ga. 48 (2), 50 (63 S.E. 800).

In Harker v. State, 6 Ga. App. 774 (65 S. E. 963), cited by counsel for the plaintiff in error in support of their petition, the decision states that the bill of exceptions was certified and service of the same acknowledged on June 13, but that the bill was not filed in the office of the clerk of the trial court until June 30. This court dismissed the writ of error, but held as follows: “Upon the special facts shown, the court grants the application of the plaintiff in error for a direction that the official copy of the bill of exceptions, of file in the office of the clerk of the trial court, shall operate as exceptions pendente lite.” The special facts referred to are not stated in the decision, but an examination of the original record in that case and of the documents therein of file in the office of the clerk of this court shows that counsel for the plaintiff in error submitted to thfs court an affidavit, made by him, in which he stated that the bill of exceptions “was actually filed with the clerk of the city court of Richmond County, Georgia, by Austin Branch, attorney for the plaintiff in error,” but that through some mistake or inadvertence, or by reason of the said bill of exceptions being mislaid or misplaced without any fault or neglect on the part of the plaintiff in error or his counsel, the said bill of exceptions was not marked filed until June 30.” (Italics ours.)

Petition denied.

Bloodworth and Stephens, JJ., concur.


author: Bloodworth, J.

text:
    10324.
    Guaranty Mutual Life & Health Insurance Co. v. Oliver.
    Decided October 9, 1919.
    Certiorari; from Chatham superior court—Judge Meldrim. December 6, 1918.
    Oliver, an undertaker, sued the insurance company, in the municipal court of Savannah, for $50, as the amount of a death benefit provided for in a policy issued by the defendant to Aaron Minyard, the petition alleging that the insured died while the policy was in force, that the plaintiff was the undertaker who 'buried him, that the policy was “given” to the plaintiff by Caroline Minyard, the beneficiary named in it, to be applied on the burial expenses, that the amount named was due to the plaintiff as burial expenses, that proof of death had been duly made and presented to the defendant, and that payment of the policy was refused. Under the terms of the policy (a copy of which was attached to the petition) it was payable “to the beneficiary named,” Caroline Minyard, “to the legal representatives of the insured, or to an undertaker as the expenses of the burial of said insured.” The defendant demurred and moved to dismiss the petition “on the ground that only the beneficiary named in the policy could bring the suit, and that the undertaker could not bring the suit.” The demurrer was overruled. At the trial the plaintiff introduced in evidence the policy sued on, and testified that he was the undertaker who buried the insured, that there was due him $50 for burial expenses, that “the dead man’s brother brought the policy to him and made all the arrangements for the funeral, and that he did not represent the beneficiary named in said policy,” that the policy was “given” him by the dead man’s brother; and that he (the plaintiff) did not have an order from the beneficiary named in the policy, and did not see her. “The plaintiff introduced the following additional testimony.: that the beneficiary- had no money interest in the said policy; in other words, the policy was taken out by the insured and all the premiums were paid by the insured; that the beneficiary had made no claim nor taken any steps to recover under the policy; that two days before he died, while on his death bed, the insured had stated that he wanted the policy given to Sam Oliver [the plaintiff] to pay for his burial expenses; . . that demand was made on the company by the plaintiff, and proofs of death were submitted, in accordance with the terms of the policy.” No further evidence was introduced. The defendant moved to dismiss the suit, on the ground that the plaintiff had failed to make out a prima facie case. The,court overruled the motion and rendered judgment in favor of the plaintiff. The defendant sued out certiorari, assigning error on the rulings and judgment stated. The judge of the superior court overruled the certiorari, with direction that $25 be written off from the judgment, because of a provision in the policy that only a half of the benefit should be paid if the insured should die within six months from the issuance of the policy. The insurance company excepted. In the judgment overruling the certiorari the judge said: “I am of the opinion that, as the insurance company undertook to pay the beneficiary, or the legal representatives of the insured, or the undertaker, the death benefit, payment by the company to any one of these will discharge the obligation.”
   Bloodworth, J.

We think the judgment of the judge of the superior court is correct, and it is

Affirm-ed.

Broyles, G. J., and Lwhe, J., oonewr.

F. B. Pittie, J. Gordon Dingle, for plaintiff in error.

Frederick A. Tuien, contra.


author: Bloodwobth, J.

text:
    10301.
    Jackson v. Mulkey.
    Decided October 9, 1919.
    Certiorari; from Fulton superior court—Judge Pendleton. December 3, 1918.

      B. B. Jaelcson, for plaintiff in error. M. Herzberg, contra.
   Bloodwobth, J.

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

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.


text:
    10304.
    Walker v. Rawls.
    Decided October 9, 1919.
    Certiorari; from Fulton superior court—-Judge Pendleton. December 27, 1918.

      Moore & Pomeroy, J. C. Savage, for plaintiff in error.

      Horace Bussell, contra.
   Bloodwobth, J.

The judge of the superior court did not err in overruling the certiorari and affirming the judgment of the court below.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.


text:
    10313.
    Hutchins v. Watkins et al.

    Decided October 9, 1919.
    Complaint; from Crisp superior court—E. F. Strozier, judge pro hac vice. December 5, 1918.

      J. T. Hill, for plaintiff in error. Crum & Jones, contra.
   Bloodwobth, J.

“The motion for new trial in this case contained the usual general grounds only, and there being evidence to sustain the verdict, this court cannot disturb the finding of the jury by overruling the refusal of the trial judge to grant a new trial upon the ground that the verdict was contrary to evidence or without evidence to support it. Davis v. Kirkland, 1 Ga. App. 5 (58 S. E. 209); Stricklin v. Crawley, 1 Ga. App. 139 (58 S. E. 215); Charles v. Brooker, 1 Ga. App. 219 (58 S. E. 218); Daughtry v. Savannah & Ry. Co., 1 Ga. App. 393 (58 S. E. 230); Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875).” McCarty v. Keys, 19 Ga. App. 494 (91 S. E. 875); Bradham v. State, 21 Ga. App. 510 (94 S. E. 618), and cases cited.

Judgment affirmed.

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


author: Luke, J.

text:
    10354.
    STEVENS v. DEKLE INVESTMENT COMPANY.
    To an action on promissory notes purporting to have been given “for value received” a sufficient defense was set forth, and the plea was not subject to demurrer on the ground that it sought by parol to vary and abrogate a written contract, where it alleged in substance that the plaintiff and the defendant entered into a parol contract whereby the plaintiff agreed to furnish to the defendant his necessary bare living-expenses during the life of the contract, and the defendant, in consideration of that undertaking, agreed to render services as real estate agent in buying and selling real estate for the plaintiff, and it was mutually agreed that any profits made should be equally divided, and if none were made the plaintiff should stand the loss of the expenses so advanced and the defendant should stand the loss of his services, and that the contract might at any time be terminated at the option of either party; that in pursuance of this contract the defendant rendered services in buying and selling real estate for the plaintiff from a given date during the life of the contract until it was terminated by mutual consent; that during that period the plaintiff advanced to the defendant the amount of the notes sued on, to cover his expenses as contemplated in the contract, and the notes were executed for the sole purpose of preserving a record of the amount so advanced, and there was no consideration moving from the plaintiff to the defendant for the execution of the notes; that during the life of the contract the defendant’s bare living expenses were actually at least the, amount of the notes; that no profits were realized; and that by reason of the foregoing facts the notes were without consideration and are not obligations binding the defendant.
    Decided October 9, 1919.
    Complaint; from city court of Valdosta—Judge Cranford. January 20, 1919.

      Franklin & Langdale, for plaintiff in error,
    cited: Civil Code (1910), § 4241; Lacy v. Hutchinson, 5 Ga. App. 865; Baggs v. Funderburke, 11 Ga. App. 176; Strickland v. Farmers Supply Co., 14 Ga. App. 664; Williams-Thompson Co. v. Williams, 10 Ga. App. 253; Empire Cotton Oil Co. v. Maxwell, 19 Ga. App. 493.

      Dan R. Bruce, contra,
    cited: Hirsch v. Oliver, 91 Ga. 554 (2); Lunsford v. Malsby, 101 Ga. 39 (2); Johnson v. Cobb, 100 Ga. 139 (1); Crooker v. Hamilton, 3 Ga. App. 190 (2, 3); Jones v. Taylor, 5 Ga. App. 161 (1); Carroll v. Hutchinson, 2 Ga. App. 60 (2); Berendt v. Ripps, 120 Ga. 228; Union Central L. Ins. Co. v. Wynne, 123 Ga. 470 (2); Stripling v. Holton, 68 Ga. 821; McNeel v. Smith, 106 Ga. 215; Dinkler v. Baer, 92 Ga. 432 (3).
   Luke, J.

Deble Investment Company sued Stevens upon two promissory notes for loans aggregating $194.71, and dated in December, 1914, and March, 1915, which purported to have been given “for value received.” Stevens answered denying indebtedness, and pleaded as follows: “That on or about the first day of October, 1914, plaintiff, acting through its duly authorized agent and manager, J. R. Dekle, and defendant entered into a parol contract whereby plaintiff on its part agreed to furnish to defendant necessary bare living expenses of defendant during the life of the contract, and, in consideration of such undertaking on the part of its plaintiff, defendant agreed to render his services as real estate agent in the buying and selling of real estate for plaintiff, and whereby it was mutally agreed between the parties that whatever profits be made be divided equally between plaintiff and defendant, such contract to be terminated at any time at the option of either party, and in the event no profits were made the plaintiff agreed to stand the loss of said expenses so advanced as aforesaid, and the defendant agreed to stand the loss of his said services; that in pursuance of said contract defendant rendered to plaintiff his services in the buying and selling of real estate for the plaintiff from the date of the contract to the 27th day of April, 1915, at which time said contract was terminated by mutual consent of plaintiff and defendant, and during such time plaintiff advanced to defendant the sum of $194.71 to cover the necessary bare living expenses of defendant during such time as contemplated by the parties in pursuance of said contract; that the said notes sued on were executed by the defendant to the plaintiff for the sole purpose of preserving a record of the amount advanced to the defendant by plaintiff to cover the necessary living expenses of defendant during the life of said contract, and that there was no consideration whatever moving from the plaintiff to the defendant for the execution of said notes by the defendant. During the life of said contract defendant’s bare living expenses did actually amount at least to the said sum of $194.71. That during the life of said contract defendant did actually render to plaintiff his services as real estate agent of plaintiff in the buying and selling of real estate as in purview of said contract. Although defendant performed his part of said contract and all the services contemplated by the same, no profits were realized. By reason of the foregoing facts, said notes were executed without any consideration whatever, and are not obligations binding this defendant.” The plaintiff demurred to the plea, upon the ground that it did not set forth a good defense to the suit, and that it sought to vary the terms of a written instrument and to abrogate an unconditional contract in writing by alleging a contemporaneous parol contract. The court sustained the demurrer and struck the plea, and rendered judgment against the defendant. We think the facts pleaded were sufficient to have permitted the defendant to submit to the court the question as to the consideration of the notes.

Judgment reversed.

Broyles, C. J., and Bloodivorth, J., concw.


author: Broyles, C. J.

text:
    10355.
    SNEAD et al. v. WOOD.
    1. An option to purchase property can be “exercised,” unless otherwise provided in the option contract, by the mere giving, within the life of the option, of an unconditional notice, by the holder of the option, to the other party or his agent, that the former has elected to purchase the property at the price and upon the terms stated in the option contract.
    (a) An option to purchase can be exercised without the payment of the purchase-price, or the tender thereof, unless the option contract provides for such payment as a condition precedent to the exercise of the option.
    2. A broker is entitled to his commissions where, as agent of the owner, he procures a purchaser ready, able, and willing to purchase, and who actually offers to purchase on the terms stipulated by the owner. Civil Code (1910), I 3587. This provision of the code applies where the purchaser procured by the broker first buys an option to purchase, and subsequently, within the life of the option, exercises his option by electing to purchase and gives timely and unconditional notice thereof to the other party. In such a case the broker’s right to his commissions does not ripen into a cause of action until the option has been actually exercised. As soon, however, as the option has been exercised, his cause of action is complete.
    Decided October 9, 1919.
    Complaint; from Richmond superior court—Judge H. C. Hammond. January 11, 1919. )

      Callaway & Howard, for plaintiffs in error,
    cited: Civil Code (1910), § 3587; Emery v. Atlanta Real Estate Exchange, 88 Ga. 325, 327; Phinzy v. Bush, 139 Ga. 488-9; Hyams v. Miller, 71 Ga. 618; Robinson v. Weller, 81 Ga. 707; Jarman v. Westbrook, 134 Ga. 20; Arnett v. Fuller, 134 Ga. 609; Larned v. Wentworth, 114 Ga. 222; Hanesley v. Bagley, 109 Ga. 346; Sperry v. Planters

      Rice Mill Co., 16 Ga. App. 35; Black v. Maddox, 104 Ga. 158; Sharp v. Kennedy, 81 Ga. 263; Angier v. Equitable Bldg. Asso., 109 Ga. 625; Williams v. Wright, 69 Ga. 759; Civil Code (1910), § 4322; Elder v. Johnson, 115 Ga. 691; DeGraffenreid v. Menard, 103 Ga. 651; Terry v. Kein, 122 Ga. 43; Perry v. Paschal, 103 Ga. 137; 21 Am. & Eng. Enc. L. 930-2; Sheffeld v. Whitfield, 6 Ga. App. 764; Payne v. Ponder, 139 Ga. 283; Harvil v. Wilson, 11 Ga. App. 156; Wilson v. Verner, 12 Ga. App. 512; Georgia Iron & Coal Co. v. Rogers, 12 Ga. App. 429; Nutting v. Kennedy, 16 Ga. App. 569; Stallworth v. Martin, 17 Ga. App. 689; McKinnon v. Hoke, 118 Ga. 462; Venable v. Burton, 129 Ga. 537 (3).

      Wright & Wright and Jackson, contra,
    cited: Civil Code (1910), §§ 3587, 4363, 4368; 9 Corpus Juris, 604; Monroe v. McCranie, 117 Ga. 891; Gabbett v. Atlanta, 137 Ga. 183; A. C. L. R. Co. v. Knapp, 139 Ga. 427; 25 Cyc. 1412; Smith v. Tatum, 140 Ga. 719; Odell v. Dozier, 104 Ga. 203; Ga. Iron & Coal Co. v. Rogers, 12 Ga. App. 429 (1); Fenn v. Ware, 100 Ga. 563; Davis v. Morgan, 96 Ga. 518 (2); 39 Cyc. 1247; Robinson v. Perry, 21 Ga. 183; Perry v. Paschal, 103 Ga. 134, 140; 39 Cyc. 1237 et seq.; Larned v. Wentworth, 114 Ga. 209 (2); and cases distinguished.
   Broyles, C. J.

This was a suit against the owners of a tract of land to recover a broker’s commissions for the lease and sale of the land. Before the sale was consummated, however, by agreement of all parties, the land, instead of being sold, was leased, in the fall of 1911,, to the proposed purchaser for a term of five years, beginning January 1, 1913, and ending December 31, 1916. In the lease-contract, which was attached to the petition and made a part thereof, it was recited that the lessors “hereby grant and sell unto the party of the second part, Ms heirs and assigns, an option to purchase the property described in paragraph one, at the expiration of this lease, for the price of $35,000. It is understood, however, that while the party of the second part shall during the life of the lease notify the parties of the first part of his intention to buy, that shall not terminate the lease, but that the said party of the second part, his heirs and assigns, shall continue in possession of said property as a tenant and pay the annual rental as above provided.” The original petition set out that the plaintiff negotiated the sale and succeeded in substituting the lease-contract, and that Hankinson, the lessee, by Iiagler, his assignee, had given timely and proper notice to the defendants that he had exercised the option to purchase the land for $35,000, the price named in the option.

The suit was filed on the first day of November, 1916. The defendants demurred to the petition, on the general ground that it set forth no cause of action, and on the special ground that it appeared on the face of the petition that the plaintiff’s cause of action was barred by the statute of limitations, for the reason that the alleged services were rendered in the fall of 1911, and his suit was not filed until more than four years after the services were rendered. The court overruled the demurrer, and the defendants excepted pendente lite. By their plea also this question as to bar by the statute of limitations was raised. Subsequently the petitioner offered the following amendment to his petition, which was allowed without objection: “ (e) Petitioner says that it was agreed between himself and the defendants that no part of his commissions for the rental or sale of said property was to become due and payable unless and until the option to buy said land contained in said lease was exercised by the purchaser or his assignee; and that the said purchaser, by J. C. Hagler, the assignee of the rights of J. L. Hanlrinson under said lease, did on the-day of November, 1916, exercise the option to purchase said land, and made a formal demand of said defendants that they make to the said J. L. Hanlrinson; or his assignee, the said J. C. Hagler, a good and sufficient title thereto upon the payment by the purchaser of the sum of thirty-five thousand dollars ($35,000.00), which sum the said purchaser, J. L. Hanlrinson, by J. C. Iiagler, his assignee, was then ready, willing, and able to pay, and did then and there offer to pay, in cash, the said purchase-money of $35,000.00 to the said defendant, upon the execution to the said purchaser of a good title to said land; whereupon petitioner’s said commissions for the rental and sale of said property then and there first became due and payable by the said defendants to petitioner.”

On the trial the plaintiff amended the amendment to the petition by adding, after the word “assignee” in the 5th line thereof, the following words: ‘‘that is to say, unless and until the said purchaser, or his assigned, shall, within the time prescribed in said lease, be ready, able and willing to buy, and actually offered to buy said land for the sum of $35,000, stipulated in said lease.” This amendment was objected to by the defendants, upon the grounds that it was inconsistent with the original amendment and was an effort to change the law of an option contract and the legal method of exercising the same by substituting the law of an actual contract of bargain and sale. The court overruled the objections and allowed the amendments, and the defendants excepted pendente lite. The case proceeded to trial and a verdict was returned for the plaintiff for $1,625. The defendants’ motion for a new trial was overruled, and to this judgment exceptions were taken.

The controlling question in this case is whether the option could be exercised by the optionee or his assignee by the mere giving of a timely notice to the optionor or the optionor’s agent that the optionee had elected to purchase the property on the terms of the option. It is strongly insisted by learned counsel for the plaintiffs in error that an option can not be exercised except by payment or tender of the purchase-price. We can not agree with this contention. An option contract to purchase is at first unilateral, and continues so until the optionee exercises his right of election to purchase and gives an unconditional notice thereof to the optionor, whereupon it ripens into a binding promise on the part of the optionor to sell. The “exercise” of an option to purchase is merely the election of the optionee to purchase. The elements of the act commonly called “exercising the option” are, first, the decision of the optionee to purchase the property under the terms of the option, and, second, the communication of this decision to the optionor within the life of the option. An “election,” other than hy the performance of some act, involves merely the giving of notice thereof to the optionor. In the absence of express provisions in the option contract, the election must be made in accordance with the terms implied by law. However, the particular act or acts which constitute an election may be fixed by the terms of the option itself. The kind of notice and the mode of communicating it may also be fixed by the terms of the option contract. The option contract can, of course, provide that in addition to the communication of the bare fact that the optionee has elected to purchase, a part or the whole of the purchase-money must be paid as a condition precedent to the exercise of the option privilege. In such a case the mere notice of an election would be clearly insufficient, On the other hand* if the option contains no stipulation that the whole or any part of the purchase-price must be so paid, and provides for notice merely, and contemplates that the price shall be paid after the act of election, when the deed is tendered, the option can be legally exercised without the payment or tender of any part of the purchase price. James on Option Contracts, §§ 102, 105, 119, 801, 809, 913, 844, 901, 914, 915, and authorities cited; 39 Cyc. 1232. A provision in a lease giving the lessee, “his heirs and assigns,” an option to purchase the leased premises is a covenant running with the land and passes to the assignee of the leasehold term. An assignee of an option contract is the proper person to exercise the option privilege and give the required notice. James on Option Contracts, §§ 607, 802, 804; 39 Cyc. 1247, 1248. Where an option contained in a lease contract gives the lessee the privilege of purchasing the property “at the expiration” of the lease, the lessee can exercise his right of option, that is by giving unconditional notice that he has elected to purchase the property, at or before the expiration of the lease. James on Option Contracts, § 852. Especially is this true in the instant case, where the option contract contains the following provision: “It is understood, however, that while the party of the second part shall during the life of the lease notify the parties of the first part of his intention to buy, that shall not terminate the lease, hut that said party of the second part, his heirs and assigns, shall continue in possession of said property as a tenant and pay the annual rental as above provided.”

We think it clear in this case the option could be exercised by the mere giving of a timely unconditional notice that the assignee of the optionee had elected to purchase the land at the price and on the terms stated in the option-contract. This ruling is not in conflict with the decisions in Emery v. Atlanta Real Estate Exchange, 88 Ga. 321 (14 S. E. 556), Larned v. Wentworth 114 Ga. 208 (39 S. E. 855), Phinizy v. Bush, 129 Ga. 419 (59 S. E. 259), or in any of the other eases cited by counsel for the plaintiff in error. While some of those cases contain rather broad statements apparently tending to a contrary holding, those statements should be construed in the light of the particular facts of the case then under consideration, and, when so construed, each of those decisions can be reconciled with the present holding.

The next question, then, is whether the notice given was an unconditional one. That notice was as follows: “As per onr conversation in which you were notified that the contract between J. L. HankinsOn and Mrs. Cora C. ‘Snead, Mrs. Elizabeth S. Kersh (now Palmer), and Marion C. Snead, has been transferred to me, since our ‘gentlemen’s agreement’ with you in August last, which, as explained, took the place of an injunction you would obtain for your clients if I did not cease cutting timber on the land leased from your clients, I have cut no timber, notwithstanding there had already been expended more than five thousand dollars above the value of the timber that has been cut in making improvements on the property. These expenditures were made in the confident belief, which I still entertain, that 1 had a perfect right under said contract to use any timber from said place, or its value, in making such improvements, and tjje fact that the improvements were made first in no way altered my rights. I consider that the action on the part of your clients constitutes a breach of such contract, and I propose to hold them responsible for all damages caused me thereby, and you will please accept this as formal notice to that effect. In preparation for the exercise of the option of purchase, provided for in such contract, I had the title to the land examined, and the report is made to me that your clients are not in a position to comply with their contract and convey a perfect title to such property, for the following, among other, reasons: If Mrs. Palmer or Mr. Snead should predecease their mother, leaving a child or children, the title, of such child or children would not be affected by the deed from the parent, and further, that there is now pending in Columbia superior court a suit for some seven hundred acres of said land. I noto malee formal demand upton your clients that they place themselves in a position to comply with their obligation in said contract with me to malee me a good title to the nineteen hundred acres of land covered by such contract, upon the payment of $85,000. I estimate that the land is worth materially more than that amount, exclusive of the aforesaid improvements I have made .and not been reimbursed for, and I will of course hold your clients for cdl damages that may be suffered by me by the breach of their contract. Please let me have a prompt reply to this, advising, first, whether your clients still insist upon their demand, tirifh a threat of injunction to enforce it, that I cut no more timber; and second, whether or not they will be prepared to make me a perfect title upon my payment of $35,000.” (Italics ours.)

Wliile the election to jrarchase must be unconditional, the communication of the fact that the optionee has exercised his option right is not required to be in any particulas form—unless so provided in the option contract. Where the communication advises the optionor that the optionee desires to exerciáe the option and is ready to pay the purchase-price, the notice is sufficiently unconditional. James on Option Contracts, §§ 823, 824. A notice of an election to purchase is not made conditional by the optionee criticising the title to the property and demanding that the optionors “place themselves in a position to comply with their obligation in said contract with me to. make me a good title to the nineteen hundred acres of land covered by such contract, upon the payment of $35,000.” Where it is clearly apparent from the communication that the optionee has elected to purchase-the property at the price and on the terms of the option the notice is sufficient. James on Option Contracts, § 847. While the notice in the instant case is not as clear and definite as it might be, and while it contains much irrelevant matter, we think the italicized words clearly put the optionors on notice that the assignee of the option had elected to purchase the property at the price and on the terms stated in the option, and that the trial court did not err in so holding.

The provisions of section 3587 of the Civil Code (1910), that a broker’s commissions are earned when he procures á purchaser ready, able, and willing to purchase, and who actually offers to purchase on the terms stipulated by the owner, are applicable to a case where the procured purchaser first obtains an option to purchase, and subsequently, within the specified time, exercises the option by electing to purchase, and gives an unconditional notice thereof to the optionor. In such a case the broker’s right to commissions does not accrue until the option has been exercised. When, however, the option has been exercised, his right of action is complete. 9 Corpus Juris, 604, 605, note 75. See also, in this connection, Mercer v. Planters Rice Mill Co. 16 Ga. App. 38 (84 S. E. 492). Under this ruling the plaintiff’s action was neither barred by the statute of limitations nor prematurely brought.

From what has been said above, it follows that the original petition was not subject to the- demurrer interposed, and that the amendments to the petition were really unnecessary and immaterial. Only one of the amendments was objected to by the defendants, and none of the objections was upon the ground of immateriality. The grounds of the objections made were without merit, and the court did not err in allowing the amendment.

The controlling facts of the case show that the judge tried it under the proper theory of law, and that he committed no material error in his rulings upon the admissibility, of evidence, or in his charge to the jury, or in his refusal to give the charges requested by the defendants.

The evidence was sufficient to show a legal assignment of the option to the alleged assignee, and authorized the verdict returned; and none of the special grounds of the motion for a new trial shows cause for a reversal of the judgment.

Judgment affirmed.

Lulce and Bloodworth,, JJ., concur.


text:
    10359.
    BLOUNT v. LYNCH.
    1. An option contract for the sale of land is not subject to attack because of inadequacy of the consideration named in it; nor is, it necessarily 1'endered unenforceable by failure to pay the consideration named.
    2. A tender required by a contract may be waived by conduct amounting to a repudiation of the contract, or by obstructing or preventing the tender.
    3. The petition in this case, in which the holder of an option for the purchase of land sought to recover damages for breach of the contract, stated a cause of action, and the court did not err in overruling the general demurrer to the petition.
    Decided October 9, 1919.
    Action on contract; from Fulton superior court—Judge Humphries. February 3, 1919.
    Daley, Chambers & Daley, Westmoreland, Anderson & Smith, for plaintiff in error.
    Anderson, Rountree & Crenshaiv, contra. .
   Luke, J.

John H. Lynch sued Mrs. Blount, alleging, in substance, that on July 19, 1917, the defendant executed an option to him, as follows: “For and in consideration of the sum of one ($1.00) dollar in hand paid, the receipt whereof is hereby acknowledged, the said Mrs. Mary A. Blount has granted, bargained, sold, and conveyed, and by these presents does hereby grant, bargain, sell, and convey to the said John H. Lynch, his heirs or assigns, an option for a period of thirty (80) days from the date hereof [July 19, 1917], to purchase on the terms specified hereinafter the following described property;” describing certain land. “The terms upon which this option is given are as follows: (1) The payment by the said John H. Lynch, within thirty days from the date hereof, of the sum of seven hundred ($700.00) dollars in cash; (2) the assumption by the said John H. Lynch, or his assigns, of the loan now on said property, amounting’ to the sum of $6,750.00, with accrued interest, and balance of purchase price, to wit, $4,250.00 at the rate of $100.00 per month, with interest at the rate of 7% per ánnum; (3) the payment by the said Lynch of the amount of the unearned, insurance premium now on said property; (4) the said Lynch to1 have the rents on the said property from the date when this option is exercised by him. In witness whereof the said parties have hereto set their hands and affixed, their seals,” etc. Signed and sealed by the parties.

The petition alleges: “that on or about the 10th day of August, 1917, your petitioner called to see the said Mrá. Blount, the defendant named in this suit, for the purpose of making an appointment with her to meet at, such time as might be convenient, in order that said option might be exercised by petitioner and the transaction closed in accordance with the terms thereof; that to petitioner's surprise, the said Mrs. Blount at said time advised him that she would not sell said property and would not perform her contract as contained in said option; that, notwithstanding this, your petitioner, hoping that tire said Mrs. Blount would carry out the provisions of her contract with him, prepared the papers which it would be necessary to have executed by the said Mrs. Blount and by himself in order to carry out said contract in accordance with the terms thereof, and carried the same, with a sufficient amount of cash to meet all the cash payments required to be paid under said option, to the home of the defendant, Mrs. Blount, on or about the 13th or 14th of August, 1917, for the purpose of tendering to her the consideration required from him under the terms of said contract; that he went to the door of the premises occupied by the said Mrs. Blount at said time, rang the door-bell and knocked upon the door loudly, but no one appeared to admit him, although he Saw through the window of one of the rooms oe copied by the defendant that there were persons in said, room1 tni eluding the defendant; that thereafter he made several efforts to be admitted to the house for the purpose of making such tender, he telephoned to the defendant a number of times, and had others telephone her for him a number of times, seeking to arrange a meeting with her, and that members of her family would answer the telephone and inform him and those who acted for him that Mrs. Blount was not at home, sometimes stating that she was in one place and sometimes stating that she was in another; such statements being wholly inconsistent with each other; that on the 17th day of August, 1917, after having made many efforts as aforesaid to communicate with the said defendant and to make due tender to her, he addressed a letter to her at her residence in the City of Atlanta, advising her of the fact that he had made previous efforts to find her, but without success, and appointing the following day, Saturday, August 18, at twelve o’clock, noon, when ho would call for the purpose of closing said transaction, or in any event of making tender to her of the considerations required of him under the contract; that in pursuance of such communication he did in fact call at her home at twelve o’clock, noon, on Saturday, August 18th, 1917, then and there being prepared to make tender to her in accordance with the terms of said contract, and was there met by other members of the defendant’s family, who informed him that the defendant was away from home and would not return that day; that later in the afternoon of the §ame day, being informed by a friend that Mrs. Blount had been seen upon the front porch of a residence in Decatur, Georgia, he sought the aid of certain friends of his and went immediately to Decatur, and his friends at his request called at the house where the defendant, Mrs. Blount, was said to be, prepared to make tender for him as aforesaid, but they were not admitted into the house, and were informed by certain persons whom they found upon the front porch that Mrs. Blount was not at these premises; that your petitioner made diligent, frequent, and constant efforts, for more than a week prior to the expiration of said option, to make tender of the considerations required of him under the said contract to the defendant, Mrs. Mary A. Blount, and that said defendant purposely and deliberately evaded him and refused to see him, in order to prevent a tender of said considerations being made to her by petitioner ; that because of the several facts hereinbefore set forth, the defendant, Mrs. Mary A. Blount, has waived the making of tender to her under the said option contract; that your petitioner was ready, willing, and able to carry out the terms of his contract with the defendant, Mrs. Mary A. Blount, and, for several days prior to the expiration of said ojffion, desired and sought the right to close said contract in accordance with said option, or to tender to the defendant the considerations required of him therein; that notwithstanding the facts hereinbefore set out, said defendant declines to carry out her contract and has breached the same; that the total purchase-price to be paid by your petitioner under the terms of said contract is $11,700.00 in the aggregate, plus the unearned premiums on the policies of insurance covering the premises agreed to be sold to him, which amount to about $90.25, making a total that-would have been required of him, under the terms of his contract, of $11,790.25; that the true market value of the said property at the time he sought to close said contract was $17,000.00, or other large sum, and that your petitioner has therefore been injured and damaged by the defendant in the sum of $5,000.00, or other large sum, and he seeks to recover said sum from her on account of her breach of contract as aforesaid. Wherefore, petitioner prays judgment,” etc.

The defendant demurred, upon the grounds: that the petition did not state facts sufficient to constitute a cause of action; that the contract was unilateral and not binding, and, that the complainant did not state" facts sufficient to show an equity in the plaintiff sufficient to authorize any judgment against the defendant. The court overruled the demurrer and the plaintiff excepted.

The first question to be .considered is whether the a,greement entered into is valid. The mere inadequacy of the consideration named in the contract would not of itself void the contract, neither would the fact that the considerations named in it had not been paid necessarily vitiate the contract or render it less enforceable. As said by the Supreme Court, “It is just as competent for a man to bind himself to make a contract of sale as it is for him to bind himself by a contract of sale. The obligation by which one binds himself to sell, and leaves it discretionary with the other party to buy, is what is termed in law an option, which is simply a contract by which the owner of property agrees with another person that he shall have a right to buy the property at a fixed price within a certain time.” See Black v. Maddox, 104 Ga. 162 (30 S. E. 723); Civil Code (1910), § 4244. Upon the question as to the amount of the consideration named in the contract, and the obligation raised to pay it, see Southern Bell Tel. Co. v. Harris, 117 Ga. 1001 (44 S. E. 885). We think, in view of the precedents, by which we are controlled, that the contract is not invalid.

The next question to be considered is whether or not Lynch alleges facts sufficient to entitle 'him to maintain an action for á breach of the contract, and if there has been a breach upon the part of Mrs. Blount. Where a contract provides that there must be a tender of money or a performance of some obligation, the party bound to make the tender or perform the obligation may be relieved, and the tender and obligation held to have been waived, where the other party to the contract repudiates it, by act or word, or takes a position which would render tender or performance of the obligation imposed useless or impossible. Upon information being conveyed by the first party to the other that he was ready to perform and make good all the obligations resting upon him, so as to make the contract enforceable under its terms, and a statement or declaration by the other party that there would be no performance of the contract in any event, it would be useless to go through the ceremony of actually making a tender or further proffer. As was said by • the Supreme Court in Ansley v. Hightower, 120 Ga. 719 (48 S. E. 197), “a tender of money is excused where, before the expiration of the time therefor, the party to whom it is to be made makes declarations equivalent to a refusal to accept the tender if made.” In addition to this, if the party to whom tender is to be made should obstruct Or prevent a tender, we see no reason why in that event tender should not be held to have been Waived. It would be unfair for the first party to a contract to purposely avoid and prevent the performance of a contract by the other party. We think the petition in this case sets out, if true (and for the purposes of demurrer we must take it to be true), a cause of action which entitles the plaintiff to have his cause determined by the courts.

Jiidgvwril rjiffirm&d,

Bró^/tes, C, J., and BloodyvprtK, J., agnowi'.


author: Ltjke, J.

text:
    10362.
    Turner et al. v. Torphy.
    Decided October 9, 1919.
    Certiorari; from Fulton superior court—Judge Ellis. January-30, 1919.
    In this case a tenant of rooms in an apartment house sought to recover the value of the contents of a trunk alleged to have been stolen or destroyed while stored in a storage room of the house and in the custody and control of the defendants. In the rent contract J. T. Turner, “agent,” was named as lessor, and it was signed by him; and the suit was against J. T. Turner and Mrs. Ida Alma Turner. The contract provided that certain rules of 'the apartment house should be a part of the contract, one of which was that “the rental in this lease includes storage room, which must be used for storage purposes only.” Another provision of the contract was as follows; “All personal property placed in the premises . . shall be at the risk of the lessee or owner, and lessor shall not be liable for any damages to said personal property, or to the lessee arising from the bursting or leaking of water or steam pipes, or from any act of negligence of an;y- cotenant or occupants of the building, or of any other person whomsoever.” At the trial in the municipal court of Atlanta the rent contract was introduced in evidence, and the plaintiff testified as follows; He placed in the storage room referred to in Hie lease contract a certain trunk containing the articles described in his petition. The trunk was locked and his wife had a key to it. The storage room also was kept locked, and the only persons who carried a key to the room were the defendant J. T. Turner and the janitor who worked at the apartment house. He (the plaintiff) had no key to the storage room. Whenever he desired to enter his trunk he had to get the janitor or Mr. Turner to unlock the storage room and allow him to enter, and he entered it on two occasions after having stored the trunk there. On the second occasion his wife was out .of town and he had to get a locksmith to unlock the trunk for him. When it was unlocked he discovered that the articles described in the petition had been removed from the trunk. Each time that he went into the storage room the janitor unlocked the door of the room and remained with him until he went out. He could not enter the storage room except by permission of J. T. Turner or the janitor. He could not watch over his property stored therein, on account of having no key and no access to the room except when let in by J. T. Turner or the janitor. Other tenants had property stored in the storage room. The reasonable market value of the articles described was the amount stated in the petition. The defendants refused to pay him their value. J. T. Turner was introduced as a witness for the plaintiff and testified that Mrs. Ida Alma Turner’s husband had employed him to rent the apartments of the apartment house referred to, and that in signing the lease contract as agent he represented the owner of the house. Mrs. Ida Alma Turner was introduced as a witness for the plaintiff and testified that J. T. Turner, in making the lease contract, was acting as her agent and represented her; that she was the owner of the house and it was rented for her benefit; that she had nothing to do with the management of the house; that the rental of the apartments Was under the management and control of her husband, and he had authority to employ others to make lease contracts in her behalf, and she received the benefit under this lease contract; that she knew nothing of the articles which the plaintiff claimed to have lost, and did not know whether he had lost them; that even if they were lost she was under no obligation to pay him for them. At the conclusion of the testimony the judge, on motion of counsel for the defendants, granted a nonsuit. An oral motion for a new trial was overruled; certiorari was sued out, and the judge of the superior court sustained the certiorari and ordered a new trial. The defendants excepted. It was contended in the brief of their counsel that the relation of bailor and bailee did not exist between the parties; that the contract released the landlord from responsibility for loss of the property; that no negligence or lack of diligence was shown; and that a judgment against the agent, J. T. Turner, would not stand.
   Ltjke, J.

In the trial court, as shown by the answer to the writ of certiorari, the evidence of the plaintiff was sufficient to have carried her case to a jury; and it was error to award a nonsuit. It was not error for the judge of the superior court to sustain the certiorari and remand the case for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworih, J., concur.

Pond L. Lindsay, for plaintiffs in error.

Quit PanTc&r, Bryan & Middlebroolcs, contra.


text:
    10375.
    OVENS v. CLAXTON CARRIAGE & HARDWARE COMPANY et al.

    1. The plaintiff’s petition not showing that a defect in the condition of the street was the proximate cause of the alleged injury when she was tripped and thrown by the wire stretched across the sidewalk by the defendant hardware company, the court did not err in sustaining the general demurrer of the city and dismissing the suit against it as a joint tort-feasor.
    2. NTo theory of accident was involved in the case, and tho court did not err in not charging the jury on such a theory.
    3. The charge of the court was not subject to the exceptions taken, the evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.
    Decided October 9, 1919.
    Action for damages; from Evans superior court—Judge Sheppard. January 2, 1919.
    Mrs. Ovens sued the Claxton Carriage & Hardware Company and the City of Claxton jointly for damages on account of injuries alleged to have been caused by a fall when sbe was walking on a sidewalk of the city. The petition alleged that the fall and her injuries were due to her feet becoming entangled in a fine wire which the defendant hardware company, hy a named agent and other agents, had unlawfully stretched across the sidewalk, and which extended from the door of the company’s place of business toward the center of the street; that the wire was not seen hy her until she became entangled in it, and it tripped and threw her without warning; that the pavement was almost or quite the same color as the wire, and the wire was so fine in texture and so near the surface of the pavement that she could not see it by the exercise of ordinary care; that the hardware company negligently and unlawfully used this part of the sidewalk for the purpose of stretching and measuring wire thereon in connection with its business, and obstructed and thus made dangerous an otherwise safe walkway for pedestrians, although the company had another door, opening on a vacant lot, where it could have measured and stretched the wire; that the city was negligent in not keeping the pavement free from said obstructions,- and in permitting the hardware company to stretch wire across the sidewalk as aforesaid; that for six months preceding the time of the injury the hardware company was using the sidewalk as aforesaid, so that the sidewalk was alternately in a safe and an unsafe condition for pedestrians to walk on it, and the governing body of the city knew, or by the exercise of ordinary care and diligence could have known, of the said use and could have prevented the same, yet acquiesced therein; that the city had notice that the hardware company had been so obstrüeting the sidewalk, but did not prevent the same. Allegations were made as to statutory notice of the claim against the city, etc. A general demurrer of the city ivas sustained and the suit dismissed as to the city. The case proceeded against the hardware company, and the trial resulted in a verdict in its favor. The plaintiff excepted to the ruling on the demurrer and to the refusal to grant a new trial.
    Counsel for plaintiff cited, as to liability of the city: Í20 Ga. 785 (2), -789, and cit.; 125 Ga. 59 (4), 60; Civil Code (1910), § 898; 1 Ga. App. 244; 55 Ga. 566; 112 Ga. 604. Opposing counsel cited: 96 Ga. 177, 182; 116 Ga. 649, 652; 117 Ga. 144; 67 Ga. 622; 77 Ga. 757 (2); 73 Ga. 746; 66 Ga. 72 (6); 115 Ga. 368; 93 Ga. 662 (3), 666; 145 Ga. 339; 68 Ga. 431.

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

      Oliver & Oliver, for defendants.
   Luke, J.

The court did not err in sustaining the general demurrer of the City of Claxton and in dismissing the suit as to the city as an alleged joint tort-feasor, the petition not showing a defect in the condition of the streets to have been the proximate cause of the alleged injury.

Failure to charge the jury on the theory of accident was not error, in view of what is said in the note of the trial judge to the bill of exceptions, as follows: “In connection with the above certificate to the bill of exceptions, I desire to say that this is the second trial; that I granted a new trial on the first motion for new trial to a large extent upon the ground of the motion that the court erred in giving in charge the law of accident. That was made one of the particular grounds of the amended motion, and, on the idea that the question of accident was not involved in the oase, I granted the first new trial, the plaintiff’s attorney contending that there was no question of accident in the case. On the last trial counsel for the defendant argued to the jury the question of accident, without any objection on the part of counsel for the plaintiff, and qounsel for the plaintiff having full opportunity to make his argument to the jury or to call the attention of the court to that feature of the case, but failed to do so, and on this second trial the court declined to make any charge on the question of accident because the court didn’t believe there was any evidence to authorize the question of accident, and did not think it was proper to consider the question at all. The court didn’t think it was proper to charge the theory of accident, even in the negative, when the court had already granted a new trial on the ground that accident was not involved.”

The charge of the court submitted to the jury fairly and fully the contentions of the parties, and, when read in its entirety, is not subject to the criticisms urged in the motion for a new trial. The evidence authorized the verdict, which has the approval of the trial judge, and for no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworih, J., concur.


text:
    10394, 10395.
    Knowles v. Western and Atlantic Railroad Company et al.

    Decided October 9, 1919.
   Luke, J.

In this case an interstate carrier was sued for personal injuries, under the Federal employer’s liability act. The evidence discloses that on a rainy night the plaintiff was walking, with a lighted lantern, beside a railroad-track, and fell into a ditch or underpass, with which he was familiar, and was thus injured. The plaintiff testifies that he was engrossed with his duty and for the moment did not realize the danger or the proximity of the underpass. The rule announced in the case of King v. S. A. L. Ry., 1 Ga. App. 88 (58 S. E. 252), cannot be extended so as to apply to this case. The evidence here does not show that any negligence of the defendant caused the injury, and on the other hand the evidence shows that the injury was the result of the plaintiff’s own negligence and lack of ordinary care. See Civil Code (1910), § 3130; Jacobs v. Southern Railway Co., 241 U. S. 229 (36 Sup. Ct. 588, 60 L. ed. 970); Southern Ry. Co. v. Blackwell, 20 Ga. App. 630 (93 S. E. 321). It may be further stated that the evidence discloses that there was a safe way around the place where plaintiff was injured, and that this way was known to him.

2. It was not error to sustain the general demurrer of the Seaboard AirLine Railway. The petition alleged no act of negligence which made that defendant a joint tort-feasor, owing the plaintiff a duty.

3. It was not error for the court to grant a nonsuit.

Judgment affirmed on main bill of exceptions; eross-bill dismissed.

Broyles, O. J., and Bloodworth, J., concur.

Action for damages; from Bartow superior court—Judge Tarver. January 16, 1919.

The action was against the Western and Atlantic Bailroad Company and the Seaboard Air-Line Bailway jointly for injuries to a brakeman of a freight-train of the first-named company, who fell through an opening between cross-ties when walking at the side of tracks over an underpass, on his way to reach the engine of his train. The underpass was crossed by tracks of both of the defendant companies, and it was alleged that it was a general practice of employees of both companies to walk across the underpass when necessary in the performance of their duties, that this was known to the defendants, and that the defendants werQ negligent in not covering with planks the openings between the tracks. The plaintiff testified that it was dark and raining, that his lantern-globe was wet and the lantern threw light “just a couple of steps” ahead of him, and he did not see a hole in the underpass before he stepped into it, that at the time his mind was on his work, that his duty was to get to the engine (which was at the distance of two or three cars from him) as quick as he could, and he was hurrying towards it. A general demurrer of the Seaboard Air-Line Bailway to the plaintiff’s petition was sustained, and the main bill of exceptions assigns error on this ruling and on the grant of a nonsuit: The Western & Atlantic Bailway Company, in a cross-bill of exceptions, assigns error on the overruling of its demurrer to the petition.

Lawton Nalley, A. W. Fite, for plaintiff.

Tye, Peeples & Tye, Neel, Finley & Neel, for defendants.


text:
    10425.
    Carson et al., trustees, v. Ayers.
    Decided October 9, 1919.
    Certiorari; from Franklin superior court—Judge W. L. Hodges. February 11, 1919.

      W. A. Stevenson, for plaintiff in error.
   Bloodworth, J.

This is the first grant of a new trial, and, the verdict not being demanded by the evidence, under the provisions of section 6204 of the Civil Code of 1910 and the unbroken precedents of the Supreme Court and of this court, the judgment granting a new trial cannot be disturbed. <■

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.


text:
    10439.
    Cox v. Charles Cone Realty Company.
    Decided October 9, 1919.
    Certiorari; from Fulton superior court—Judge Ellis. January 22, 1919.
    The exceptions were to the overruling of a certiorari in a case from the municipal court of Atlanta in which W. S. Cox was sued by the Charles Cone Realty Company for a commission of $190 alleged to be due the plaintiff as agent for the defendant in the sale of a certain meat market and grocery store. The trial in the municipal court resulted in a judgment in favor of the plaintiff for the amount sued for. The defendant, in his petition for certiorari, contended that the judgment was contrary to law and without evidence to support it, because “the declaration alleges that W. S. Cox is due the plaintiff certain commissions for the sale of a meat market and grocery store, whereas it is shown by the proof that said market was owned by a partnership composed of W. S. & H. J. Cox, and that H. J. Cox, a member of said firm, employed the plaintiff to sell the place of business owned by said partnership.” The answer to the suit was a general denial of indebtedness. There was evidence that W. S. Cox was the owner of the meat market and store at the time of the sale, that the business conducted there had been held out to the public as a partnership business under the name of Cox Brothers, and was listed with the plaintiff for sale under that name by H. J. Cox, the defendant’s brother, that the preliminary negotiations in the sale were conducted through H. J. Cox, and that W. S. Cox ratified the acts of H. J. Cox and prior to the consummation of the sale agreed personally to pay the commission.

      Anton L. Etheridge, F. A. Hooper & Son, for plaintiff in error,
    cited: 11 Ga. App. 517 (3); 21 Ga. App. 436-8.

      O. L. Pettigrew, Robert H. Jones Jr., contra,
    cited: 27 Ga. 305; 131 Ga. 637 (4).
   Bloodworth, J.

The judge of the superior court did not err in this case in rendering the following judgment: “It is considered, ordered and adjudged, that the within certiorari be and the same is hereby overruled and the judgment allowed to proceed in favor of Chas. Cone Realty Co. v. W. S. Cox, for the principal sum of one hundred ninety and no/100 dollars, interest and costs.”

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


author: Bi.oodworth, J.

text:
    10442.
    Loftis Brothers & Company v. Creel.
    Decided October 9, 1919.
    Complaint; from Fulton superior court—Judge Pendleton. March. 8, 1919.
    In this suit a former salesman of the defendant sought to recover $2,400 as commissions on gales, and sought discovery as to the amount of the sales, etc. The petition alleges, in substance, that on June 1, 1914, the plaintiff entered the employ of BantaCole Company as a salesman. The company was engaged in the business of selling watches and jewelry, both for cash and on the installment plan. By oral agreement he was to receive “as his compensation 20 per cent, of the gross amount of all his sales made for said company by him, or by said company through his instrumentality or as a result .of his labors, his compensation becoming payable and to be paid as and when the goods sold were paid for, or payments made on account of such sales by purchasers, whether such sales were made for cash or on credit. In addition to acting -salesman for said company, petitioner was to . . aid in the collection of all amounts of all credit sales made by him.” He worked for the company under this agreement until February 16, 1917, on which date its assets were purchased by the defendant and he was employed by the defendant, the business being continued by the defendant. By oral agreement with the defendant he “was to and did receive as his compensation 20 per cent, of the gross amount of all sales made for said defendant by him; or by said company through his instrumentality or as a result of his labors, his compensation becoming payable and to be paid as and when the goods sold were paid for or payments made on account of such sales by purchasers, whether such sales were made for cash or on credit. In addition to the compensation aforesaid the said defendant recognized pititi oner’s rights in installment sales already made for the Banta-Cole Company, and agreed that petitioner might have and receive as additional compensation the twenty per cent, on all installments sales made by him for the Banta-Cole Company as aforesaid, as and when payments were made by persons to whom sales were made. In addition to acting as salesman for said defendant, petitioner was to and did, as a part of his contract and agreement with said company, aid in-the collection of all amounts of credit sales by him, whether for the defendant or the Banta-Cole Company.” He worked under this agreement until February 1, 1918, when the defendant notified him that from that date he would receive only a specified salary, without any commissions. Hpon his failure to accept this change in the contract “the defendant notified him that he could not make any further sales or collections for it, and that he would not receive any further commissions on any account whatever; whereupon his connection with the defendant was severed.” On February 1, 1918, there remained unpaid on the installment sales accounts made by him for the defendant a sum amounting to $7,000, and on the sales made by him for. Banta-Cole Company $5,000. The defendant fails and refuses to permit him either to sell any more goods for it or to collect on account of sales already made by him for it and for the Banta-Cole Company. “His commissions on the total amount of his said sales aforesaid, as and when collected, amounts to the sum of $2,400;” and “by reason of the facts hereinbefore set forth, the said defendant is indebted to him and has injured and damaged him in the sum of $2,400.” For reasons set out, it is alleged, the plaintiff is unable to give the names of all persons to whom sales were made, the amounts thereof, the amounts paid on account thereof, the amounts remaining unpaid, and the amounts of his commissions thereon, paid and unpaid. It is prayed: (a) that the plaintiff may have judgment against the defendant for $2,400; (6) that the defendant be required to answer attached interrogatories; (c) that the defendant be required to deliver to him his duplicates of sale sheets made by him while acting as salesman for the Banta-Cole Company and the defendant; (d) that the defendant be required to produce for inspection the sale sheets and its books of account and installment contracts referring to such sales; and (e) that process issue, directed to the defendant. Interrogatories as to the times and amounts of the sales and collections were attached to the petition.
   Bi.oodworth, J.

The petition in this ease does not set out a cause of action, and the judge erred in overruling the oral motion to dismiss it.

Judgment reversed.

Broyles, O. J., and hulee, J., concur.

An oral motion to dismiss the petition was made by the defendant, and the court rendered the following judgment: “Hpon motion to dismiss because no cause of action is set forth, it appearing that money on sales made by the plaintiff had been collected before the bringing of this suit, it is considered, ordered, and adjudged that the motion to dismiss be and the same is overruled.” To this judgment the defendant excepted. It was contended by counsel for the defendant that as the alleged contract did not fix any time for its duration, it could be terminated at any time at the will of either party; that no breach of contract was shown; and that the plaintiff was not entitled to compensation after the termination of his employment, or to commissions on amounts not collected. Counsel cited: Clark on Contracts (3d ed.) 430; Bearden Mercantile Go. v. Madison Oil Go., 138 Ga. 703; Bentley v. Smith, 3 Ga. App. 343 (4); Hearn v. Gower, 1 Ga. App. 365 (3). Counsel for the plaintiff contended that “the right of the salesman to compensation became fixed whenever a sale was made by him according to the contract, subject to be divested by failure of the purchaser to make payment on a credit sale, his compensation becoming due and payable whenever payment was made by the purchaser;” and that, it being admitted by counsel for the defendant that collections were made by the defendant before the filing of the suit, as “will appear by reference to the order overruling the demurrer,” the plaintiff “was entitled to recover some amount.”

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

W. H. Terrell, contra.


text:
    10454.
    Whatley et al. v. Riley, ordinary, for use, etc.
    Decided October 9, 1919.
    Action on bond; from Taylor superior court—Judge Kent presiding. February 15,1919.

      Homer Beeland, G. W. Foy, for plaintiffs in error.

      Gilbert G. Robinson, contra.
   Luke, J.

The only question raised by the exceptions in this ease is whether the evidence authorizes the verdict. A careful examination of the evidence convinces us that there is some evidence upon which the verdict may be sustained. The trial judge having approved the verdict, this court cannot interfere.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10464.
    SCOTT v. STATE MUTUAL LIFE INSURANCE COMPANY.
    Where the petition in an action for personal injuries from electricity alleged that the defendant was the owner of a house supplied with electricity by a named company through wires owned by the defendant; which were strung on poles extending across an adjoining uninclosed tract of woodland separated from the defendant’s premises by a fence and not owned by the defendant, that the plaintiff (a boy ten years old) had been picking blackberries there, and, when returning to I1Í3 home and running along a much used and worn pathway on this tract of woodland and near the defendant’s fence, he stumbled, and in falling threw out a hand and caught hold of one of the electric wires, from which a part of the insulation had worn off and which was then and for more than two months had been sagging near the ground, and his hand was burned by it, that people for a great number of years had been accustomed to travel upon this land along the place where he was injured, and that the defendant knew, or in the exercise of ordinary care should have known, of this use of the pathway and of the dangerous condition of the wire described, no cause of action was shown by the petition, if not appearing that the plaintiff was there because of inducement or invitation on the part of the defendant, either express or implied, or that the character of the pathway was such as to amount to invitation or permission to use it, or that the injuries resulted from his use of the path while availing himself of such permission.
    Decided October 9, 1919.
    Action for damages; from city court of Floyd county—Judge Nunnally. March 18, 1919.

      Harris & Harris, for plaintiff,
    cited: American Tel. &c. Co. v. Murden, 141 Ga. 209 (2); Ferrel v. Dixie Cotton Mills, 37 L. R. A. (N. S.) 64 (3), 69; Scott v. Rome Ry. & Light Co., 22 Ga. App. 474; Brinilson v. Chicago &c. Ry. Co., 32 L. R. A. (N. S.) 359; Davoust v. City of Alameda, 5 L. R. A. (N. S.) 536; Walters v. Denver Consol. Elec. Co., 12 Col. 145 (54 Pac. 960); So. Bell Tel. Co. v. Howell, 124 Ga. 1050; Wallace v. Matthewson, 143 Ga. 236; Ashworth v. So. Ry. Co., 116 Ga. 635; Mandeville Mills v. Dale, 2 Ga. App. 607; Rollestone v. Cassirer, 3 Ga. App. 161.

      Maddox S Doyal, for defendant,
    cited: Pacetti v. Cen. Ry. Co., 6 Ga. App. 97; Babcock Lumber Co. v. Johnson, 120 Ga. 1030; So. Bell Tel. Co. v. Starnes, 122 Ga. 604 ; Scott v. Rome Ry. &c. Co., supra; Etheredge v. Central Ry. Co., 122 Ga. 855; 1 Thomp. Neg. 945-6; Jones v. Asa G. Candler Inc., 22 Ga. App. 717; Kohn v. Lovett, 44 Ga. 251; Neff v. Broom, 71 Ga. 251; King v. Cen. Ry. Co., 107 Ga. 754; Seward v. Draper, 112 Ga. 673; Rome Furniture Co. v. Patterson, 120 Ga. 521; Chattanooga So. Ry. Co.
      v. Wheeler, 123 Ga. 41; Savannah &c. Ry. Co. v. Beavers, 113 Ga. 400; Bell v. R. Co., 60 So. 1029; Bottum v. Hawks, 79 Atl. 858; N. C. & St. L. Ry. v. Priest, 117 Ga. 767; O’Connor v. Brucker, Id. 451 (4).
   Luke, J.

The plaintiff in this case first instituted suit against Rome Railway and Light Company for his alleged injuries. It was held in that case that the plaintiff was a trespasser coming in contact with a wire charged with electricity on private premises, not adjacent to any path in general use by the public. This court affirmed a judgment of nonsuit. See Scott v. Rome Railway and Light Co., 22 Ga. App. 474 (96 S. E. 509). The present suit is against the State Mutual Life Insurance Company, and recovery is sought upon the ground that the defendant owns the house which is supplied with electricity through the wires that injured the plaintiff. The petition alleges that the wires were strung along on poles by the defendant’s predecessor in title, and that at the time of the injury the defendant owned the wires and was using them to convey electricity into the house. The petition alleges, that the plaintiff was injured while upon an adjacent woodland lot not owned by the defendant; that the plaintiff had been picking blackberries there, and was returning home and running along a much used and worn pathway near the defendant’s fence, which separated the defendant’s property from this uninclosed woodland tract, when he suddenly stumbled and fell, and, in falling, threw out his left hand and caught hold of one of the electric wires mentioned above, which at that time was and for more than two years had been sagging to within two feet of the ground; that the insulation on it on a space of about six inches had been rubbed off or had rotted off, and that when he caught hold of it he was burned by the electricity passing through it; that the defendant knew or in the exercise of ordinary care ought to have known that said wire was so hanging and dangerous as alleged; that the electricity was being conveyed through the said wires by the Rome Railway and Light Company; and that people had for a great number of years been accustomed to travel over this land along the place*where the plaintiff was injured, and that this was known or should have been known to the defendant. The court sustained a general demurrer to the petition, and the plaintiff excepted.

Inasmuch, as the petition fails to show that the defendant held out an invitation to the plaintiff to use the path or the uninclosed woodland tract (which it did not own), or that the path was of such a character as to amount to an invitation or permission to use it as a passageway over the land, or to show that the injury resulted from the use of the path or passageway while the plaintiff was in the act of availing himself of this permission, it was not error to sustain the general demurrer. See Etheredge v. Central of Ga. Ry. Co., 122 Ga. 853 (50 S. E. 1003). In addition to what has already been said, the petition shows that the plaintiff entered on the premises over which the wires were strung and where he was injured, without any enticement, allurement, or inducement being held out to him by the defendant. The petition shows that the plaintiff was crossing over said tract of land for his own pleasure. See Jones v. Asa G. Candler Inc., 22 Ga. App. 717 (97 S. E. 12). The present case is distinguishable from Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S. E. 1060), Ashworth v. So. Ry. Co., 116 Ga. 635 (43 S. E. 36, 59 L. R. A. 592), So. Bell Tel. &c. Co. v. Howell, 124 Ga. 1050 (53 S. E. 577, 4 Ann. Cas. 707), Am. Tel. &c. Co. v. Murden, 141 Ga. 209 (80 S. E. 788), and Wallace v. Matthewson, 143 Ga. 236 (84 S. E. 450). From the facts pleaded in each of these cases it appears that the defendants therein were so placed as to owe a duty to the plaintiffs, the violation of which was the proximate cause of the injury sued for. Judgment affvrmed.

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


text:
    10476.
    ALLGOOD v. MONROE OIL AND FERTILIZER COMPANY.
    An employee in .a mill who in attempting to put a belt on a rapidly revolving pulley chose a dangerous way of doing so was not entitled to recover for injuries thus received which he could have avoided by choosing a safe way known to him, although his choice of the dangerous way may not have amounted to actual rashness. Under the evidence the injuries were due to negligence of the plaintiff to which the defendant did not in any way contribute; and the court did not err in directing a verdict for the defendant.
    Decided October 9, 1919.
    Action for damages; from Walton superior court—Judge Cobb. February 20,1919.

      A. II. Davis, W. O. Dean, for plaintiff.

      B. L. Cox, Walker & Roberts, R. P. Jones, for defendant.
   Luke, J.

The evidence in this case discloses that the plaintiff undertook to put a belt on a fast-revolving pulley, and in so doing was injured. The evidence also discloses that there was a safe way to put the belt on the pulley, and the safe way was known to the plaintiff. The evidence is without contradiction that the plaintiff had a choice of two ways of putting the belt on the pulley, one a dangerous way and the other a safe way. The plaintiff chose the dangerous way. The plaintiff having selected the dangerous way, he cannot recover of the employer for his injuries thus sustained, although his conduct in selecting that way may not have amounted to actual rashness. See Belk v. Lee Roy Myers Co., 17 Ga. App. 684 (87 S. E. 1089), and cases cited.

The evidence fails to make out a prima facie case. The plaintiff had months of experience around the machinery where he was injured, and his injury was due to his own negligence, not contributed to in any way by the defendant. Commercial Guano Co. v. Neather, 114 Ga. 416 (40 S. E. 299); Crown Cotton Mills v. McNally, 123 Ga. 35 (51 S. E. 13); Cawood v. Chattahoochee Lumber Co., 126 Ga. 159 (54 S. E. 944). Eor no reason assigned was it error for the court to direct a verdict for the defendant.

Judgment affirmed.

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


text:
    10499.
    SMITH v. SPENCER-DOWLER COMPANY.
    Sale of a stolen vehicle under condemnation proceedings based on its use in carrying intoxicating liquors, of which the owner was ignorant, did not divest his title to it.
    Decided October 9, 1919.
    Trover; from Newton superior court—Judge Smith. March 28, 1919.

      Rogers & Knox, for plaintiff in error,
    cited: Act of March 28, 1917 (Pamph. p. 16); 5 Parle’s Code, § 5967; Stroupper v. McCauley, 45 Ga. 77; 23 Cyc. 1406; Silvey v. Tift, 123 Ga. 808; Freeman, Judgments (3d ed.) § 611; 12 Enc. Pl. & Pr. 147; United States v. One Buick Automobile, 244 Fed. 963; United States v. Mincey, 254 Fed. 287 (C. C. A., 5th Circuit); United States v. Blackhorse, 147 Fed. 770; Kriess v. Faron, 50 Pac. 388-9; 4 Park’s Code, § 5554; Smith v. Downing Co., 21 Ga. App. 741

      King & Johnson, contra,
    cited: Act of 1917, supra; United States v. Cargo of Ship Favorite, 4 Cranch (U. S.), 347; Shrouder v. Sweat, 148 Ga. 378; Whites v. State, 23 Ga. App. 174; Campbell v. Hutcheson, 23 Ga. App. 111; Mack v. Westbrook, 148 Ga. 690; Boyd v. United States, 116 U. S. 116; Skinner v. Thomas, 171 N. C. 98 (87 S. E.976), and note to same case in L. R. A. (N. S.) 1916 E, p. 343; United States v. Two Barrels of Whisky, 96 Fed. 479 (37 C. C. A. 518).
   Luke, J.

The facts of this case show that an automobile was stolen in the City of Chattanooga, Tennessee, and was subsequently seized in the County of Cobb, in this State, and that intoxicating liquors were contained in it and being transferred by it. Condemnation proceedings under the act of March 28, 1917 (pamph. p. 16), were had against the car, and under such proceedings it was duly sold. The true owner of the car subsequently located it and instituted trover proceedings for its recovery. The evidence in the case established the ownership of the ear, and it was conclusive that the true owner had lost it by theft and had no knowledge that anyone was illegally transporting liquor in it. A verdict was returned in his favor; the defendant’s motion for a new trial was overruled, and the movant excepted.

It was admitted on the part of the defendant that the plaintiff was entitled to recover unless the condemnation proceedings and the sale thereunder divested the title of the plaintiff, but the defendant contended that notwithstanding the fact that the car was stolen and the owner had no knowledge of the illegal use to which the thief put it, the fact that the car was condemned and sold under the condemnation proceeding forever barred the owner from claiming the car. We do not agree with this contention. The thief obtained no title to the ear and the purchaser at the sale got no better title than the possessor had at the time of its seizure. Lawless v. Orr, 122 Ga. 276 (50 S. E. 85); Campbell v. Hutcheson, 23 Ga. App. 111 (97 S. E. 555). The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Bloodwortii, J.

text:
    10532.
    Cox v. Harrison.
    Decided October 9, 1919.
    Bule; from Fulton superior court—Judge Bell. March 34, 1919.
    The petition of Cleveland Cox for a rule against Fred E. Harrison, an attorney at law, was dismissed on motion of the defendant on the ground that it failed to show that the relationship of attorney and client existed between them. The petition in substance alleges: Fred E. Harrison, the defendant, is an attorney at law, practising as such at the Atlanta bar. On March 4, 1919, petitioner was arrested and confined in the city prison of Atlanta on the charge of having possession of intoxicating liquor. On being locked in a cell, after being at the station house about five minutes, the turnkey asked him if he wanted to see Mr. Harrison. He had never heard of Mr. Harrison before, but, believing that Mr. Harrison might be a bondsman, he replied that he did. In a few minutes Fred E. Harrison appeared with the turnkey and asked how much bond they wanted. The turnkey replied, “$500.” Harrison asked petitioner how much money he had, and he replied that he had $300. Harrison said to him that if he would turn over the $300 to him, he had a man outside in front who would put up the other $300, making the $500 cash bond, and have him turned out immediately. On this statement petitioner turned over the $300 to Harrison for the purpose stated, believing Harrison to be a bondsman; and Harrison left and petitioner was locked back in the cell. Harrison returned to him and told him that the bondsman was on the way to the station house, and that he could not be released unless he signed a certain paper, which was as follows: “This is to certify that I have this day retained Mr. Fred E. Harrison” and another person named, “to be my attorneys at law in representing me in the ease of which the officials arrested me on this day, that is to say for having whisky in my possession. I have paid the said firm $300 as a retainer with the understanding that out of this $300 they get me out on bond. Just as soon as they can communicate with their bondsmen, and keep out until bond is clear up. This $200 is given freely and voluntarily for a fee and bond. This March 5, 1919.” Petitioner signed this paper, believing it was necessary, to obtain his release through cash collateral as represented by Harrison, and not understanding “the wording of the paper,” and Harrison being highly recommended to him by the turnkey who locked him up, and his intention being to deal with Harrison solely “to obtain his release as paid by him, that he would get from custody for appearance before the recorder’s court for trial.” After signing the paper he was again locked up and Harrison left. Harrison returned with E. L. Collier, a colored man, and petitioner and Collier signed an instrument called a bond for appearance, and “this released petitioner from custody.” After his release he asked Harrison about his money and when he would get it back, and in the conversation said to Harrison that he did not need an attorney, that he was going to plead guilty ; and he several times made the same statement to Harrison in conversations about the money. Harrison said to him that he would1 get his money back, but it would cost him that .and more. Petitioner pleaded guilty, without representation before the recorder’s court, on March 5th, and, after being required to give bond after commitment for trial by the recorder, went before the criminal court of Atlanta and there entered a plea of guilty and was fined $25 and paid the fine. “After the commitment trial at the recorder’s court, petitioner making his own bond and security, Harrison had no further connection with the case, after petitioner’s release from the station house on March 4th as aforesaid.” The receipt given for the $200 reads as follows: “Received of Cleveland Cox $200 with understanding that the money will be bond and fee money. (Signed) Fred E. Harrison, March 5th, 1919.” Petitioner put the receipt in his pocket without looking at it at the time. The petition alleges that the conduct of Harrison as aforesaid amounted to a fraud, that there was no such firm of attorneys as named in the paper signed by petitioner, and that no binding contract was made; that he had served written notice on Harrison, demanding the return of the $200, and Harrison refused to comply with the-demand. He prayed for a rule against Harrison as an attorney at law, requiring him to show cause why he shordd not be required to return the $200 or stand in contempt of court. The court refused to allow an amendment to the petition, as follows: “ Said Fred E. Harrison, attorney at law, now claims the right to hold said money, $300, under color of right as attorney’s fees, which right to hold same this plaintiff denies. If the signing of said contract created the relationship of attorney and client between this plaintiff and defendant, it is a fraud on this plaintiff, and he is entitled to his money back.”
   Bloodwortii, J.

The judge who heard this case »did not err in disallowing the proffered amendment to the petition, and in sustaining the general demurrer and dismissing the petition.

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.

Citations by counsel: Civil Code (1910), §§ 4643, 4954, 5343, 4354, 4635; Hay good v. Haden, 119 Ga. 463. See Knight v. Rogers, 33 Ga. App. 308.

S. C. Crane, for plaintiff. Benjamin H. Hill, H. A. Allen, for defendant.


text:
    10538.
    Perdue & Pace v. Hurst.
    Decided October 9, 1919.
    Garnishment; from Haralson superior court—Judge Irwin. April 7, 1919.

      I. N. Cheney, Griffith & Matthews, for plaintiffs in error.

      Edwards & Edwards, contra.
   Bloodworth, J.

1. The amendment to the motion for a no.w trial is too uncertain and indefinite to be considered by this court. It is not even stated at what time Hurst “had the deed in his possession.” The ground is not understandable without reference to other parts of the record, and it is a well-established rule that “each ground of the motion for new trial must be complete and understandable without resorting to an examination of the brief of the evidence or of any other part of the record.” Morrow v. State, 22 Ga. App. 253 (95 S. E. 934), and cases cited.

2. No error of law is pointed out, the verdict has the approval of the trial judge, there is some evidence authorizing the verdict, and, under repeated and uniform rulings of this court and of the Supreme Court, a reviewing court is powerless to interfere. Bradham v. State, 21 Ga. App. 510 (94 S. E. 618), and cases cited. '

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.