text:
    8260.
    ATKINSON v. WINGATE PLUMBING COMPANY.
    In order to foreclose a lien for material furnished to a contractor, to be used in improving the land of another person, it is necessary that the materialman have judgment against the contractor in a previous action, or, if the landowner and the contractor reside in the same county, they may be sued in the same action; but if they reside in different counties, they can not be joined as defendants, except where special reasons permit recourse to a court of equity.
    Decided July 5, 1917.
    Foreclosure of lien; from Fulton superior court—Judge Pendleton. April 15, 1916.

      Spencer B. Atkinson, Hugh M. Scott, for plaintiff in error.

      Bachman & Simmons, contra.
   Bloodworth, J.

Wingate Plumbing Company brought suit, in Fulton superior court, against “J. L. Pettigrew of said State and county, and Burwell Atkinson, a resident of the county of Camden, said State,” alleging that the plaintiff, a corporation, had furnished to J. L. Pettigrew, who was a contractor, certain material, and that the plaintiff did certain plumbing work in the construction of two houses, the owner of which was Burwell Atkinson. .Plaintiff .prayed for a general judgment against said contractor, and for' “a materialman’s and contractor’s lien” against the property of said Burwell Atkinson,, described in the petition. Atkinson entered a special appearance for the purpose of moving to dismiss the proceeding so far as it related to him; and also filed a plea to the jurisdiction of the court, alleging, “that he was and for many years prior to the institution of said suit, and was at the time of the institution thereof, and is now a citizen of the county of Camden in said State, and is not now nor has he hitherto been at any time a citizen of the said county of Fulton; that the alleged cause of action in plaintiff’s declaration set out is not such as will authorize flie institution of said suit as against him elsewhere than in the county of Camden in said State; that the superior court of Fulton has no jurisdiction as against him in the premises, and that the superior court of the county of Camden alone has jurisdiction as against him in the premises; and therefore upon the premises he prays the court to dismiss the plaintiff’s said suit for want of jurisdiction.” The question raised by the plea to the jurisdiction was submitted to the court for determination without the intervention of a jury, and upon the following agreed statemeiit of facts: “ That Burwell Atkinson at the time of the institution of the suit and for many years prior thereto and since that time has continuously resided in Camden county, Georgia; that the superior court of Camden county has jurisdiction to try suits against him; that at the term of this court to which this cause was made returnable the defendant Burwell Atkinson entered a special appearance for the purpose of making a motion to dismiss the suit against him, upon the ground that it appeared upon the face of the declaration that this court had no jurisdiction of the person of Burwell Atkinson, in that he resided in the county of Camden, and not in the county of Fulton.” This motion was heard by Judge Bell, who overruled it and refused to dismiss the action.

Under the- above submission the court found against the. plea to the jurisdiction. This we think was error. Under the head of venue the constitution of this State provides where suits shall be brought in divorce eases, eases respecting title to Íand, equity cases, suits against joint obligors, joint promisors, copartners, or joint trespassers, suits against makers and indorsers of promissory notes, or drawer, or acceptor, and indorser of foreign or inland bills of exchange, or like instruments. See Civil Code (1910), §§ 6538-6542. A suit against a contractor to whom a materialman has furnished plumbing material, and for whom he has done plumbing work, and against the owner of the realty, is not covered by either of the foregoing sections. Section 6543 of the Civil Code of 1910 provides that “All other civil cases shall be tried in the county where the defendant resides.” This section applies in the instant case, and would require suit against defendant Burwell Atkinson to be brought in Camden county, where he resides. Under the rulings of this court and the Supreme Court, in order to foreclose the lien of a materialman who has furnished a contractor with material to be used in improving the property of another, it is necessary that the materialman have judgment against the contractor in a previous action, or the contractor must be sued in a foreclosure proceeding concurrently with the owner of the property improved. Spivey v. Reneau, 18 Ga. App. 37 (88 S. E. 795); Buck v. Tifton Mfg. Co., 4 Ga. App. 695 (62 S. E. 107); Griffin v. Gainesville Iron Works, 144 Ga. 840 (2) (88 S. E. 201); Mauck v. Rosser, 126 Ga. 268 (55 S. E. 32); Columbian Iron Works v. Crystal Springs Bleachery Co., 145 Ga. 621 (89 S. E. 151). In Mauck v. Rosser, supra, is the following: “It took a statute to render the owner of the real estate improved personally liable to any extent to a materialman for material furnished by him to the contractor who improved the property. If the owner and the contractor had been, under the existing law, jointly liable to the materialman, under the contract between him and the contractor, this statute would have been unnecessary.” In the case of Buck v. Tifton Mfg. Co., supra, Judge Powell .said: “Except in those cases where, by reason of the fact that both reside in the same county, the contractor and the landowner can be joined in the same suit, or where special reasons permit of recourse to a court of equity, the material-man should reduce his claim against the contractor to judgment before he sues upon it to establish a lien against the landowner.”

It is true that in the case of Griffin v. Gainesville Iron Works, supra, Mr. Presiding Justice Evans said: “It is indispensable to the foreclosure of a materialman’s lien against the owner of the real estate improved that there be a valid judgment against the contractor. The materialman may sue the contractor separately and obtain his judgment, and thereafter foreclose his lien against the owner of the real estate alleged to have been improved; or, if the contractor is a resident of the county where the property against which the lien is sought to be established is located, the materialman may proceed in the same action against the contractor and the owner of the real estate, and recover a judgment in personam in that action against the contractor.” As will be seen by reference to the facts of that case, however, the statement of the learned Presiding Justice, that “If the contractor is a resident of the county where the property against which the lien is sought to be established is located, the materialman may proceed in the same action against the contractor and the owner of the real estate,’5 was merely obiter.

As the court erred in finding against the plea to the jurisdiction, all subsequent proceedings in the case, so far as defendant Atkinson is concerned, are nugatory, and it is useless to consider the other assignments of error.

Judgment reversed.

Broyles, P. J., and Jenkins, J., concur.


source: Caselaw Access Project

author: Broyles, P. J.

license: Public Domain

text:
    8370.
    FOUNTAIN v. SECURITY MUTUAL LIFE INSURANCE COMPANY.
    The action was based on a contract governed by the laws of New York. Under the pleadings, the agreed statement of facts, and certain decisions of courts of that State which were introduced in evidence, the judge, sitting by consent without the intervention of a jury, did not err in rendering judgment in favor of the defendant.
    Decided July 5, 1917.
    Action on insurance policy; from Pulaski superior court—Judge Graham. December 11, 1916.

      E. F. Lawson, for plaintiff. Manon Turner, for defendant.
   Broyles, P. J.

In this case, by agreement, the trial judge passed upon all of the issues of law and fact, upon the following agreed statement of facts:

“1. Mrs. Josie Fountain, the plaintiff, is the widow of Allen T. Fountain, late of said [Pulaski] county, deceased. The said Allen T. Fountain died on November -1, 1914. 3. On the 5th day of July, 1903, the defendant issued to the said Allen T. Fountain a policy of insurance, a copy of which is annexed to the agreed statement of facts, marked exhibit ‘A,’ in which policy the plaintiff is named as beneficiary. 3. On the 14th day of December, 1913, the said Allen T. Fountain borrowed from the defendant upon said policy of insurance the sum of twelve hundred dollars, the said loan being evidenced by a writing, a copy of which is hereto attached marked exhibit ‘B.’ 4. The last annual premium made by the said Allen T. Fountain, or by any one for him, on said policy was made on the 5th day of January, 1913, upon which date said annual premium was due, after which date no further annual premium was made upon said policy. The last interest payment made on said loan was paid up to December 14th, 1913, and thereafter no further payment of interest was made on said loan, and no part of the principal of said loan was ever paid. 5. The plaintiff, Mrs. Josie Fountain, did not sign said loan agreement, nor did she know said loan was being made at the time it was made, nor did she in any way ratify the making of said loan. 6. The said defendant has never foreclosed said loan during the lifetime of the said Allen T. Fountain, nor thereafter, but on the 5th day of May, 1914:, four months after the lapse of the payment of an annual premium due on January 5th, 1914, said policy of insuranee was marked cancelled on the books of the defendant company, .in the regular course of business, and under the custom followed by the said defendant, for the failure of the insured to pay the premium due. The said loan of twelve hundred dollars, with interest, was charged against the said policy and the value of the policy charged against it, but no notice was ever received by the plaintiff, Mrs. Josie Fountain, of the action of the defendant as hereinbefore set forth. 7. After failure to make any further payment of annual premium on said policy after January 5th, 1913, the said Allen T. Fountain failed to avail himself of any of the privileges of said policy whereby he could- have been reinstated and the said policy revived, and at the time of his death owed the defendant the sum of $1,200.00 principal, besides interest on the same from December 14th, 1913. The sole question to be determined by the court in this case is, what amount, if any, is due the plaintiff upon said policy?”

It is unnecessary to set forth all the provisions of the policy sued .upon. One clause of the policy provided that upon the death of the insured it was payable at the home office of the company, which in the policy was shown to he Binghampton, New York. The policy contained also a provision “that the place of this contract is expressly agreed to be in the city of Binghampton, N. Y.” It therefore appears that as to this case the law of the State of New York is controlling. The law of that State, as applicable to this policy, was not pleaded by the defendant, and the agreed statement of facts contains nothing in reference thereto. However, from the judgment of the lower court it expressly appears that certain decisions of the courts of the State of New York, to wit, Sabin v. Phinney, 134 N. Y. 423 (31 N. E. 1087, 30 Am. St. R. 681), Cavagnaro v. Thompson, 78 Misc. 687 (138 N. Y. Supp. 819), and Healy v. Prudential Insurance Company, 140 N. Y. Supp. 503, 505, were introduced in evidence by the defendant. It does not appear that any objection was made to the introduction of this evidence, and, under these circumstances, it must be held to be supplemental to the agreed statement of facts, and will be considered by this court in the determination of the case.

The insured had the right, under the policy, to change the beneficiary at any time during its continuance, “by filing with the company a written request, duly executed, on blanks furnished by the company; such change to take effect only upon the indorsement of the same on the policy by the company.” '

The only two questions for decision in this case are: first, did the insured have the right, under the provisions of the policy, to pledge the policy to the insurance company for a loan, without the consent of the beneficiary ? And, second, if he did have such a right, was there anything due the beneficiary under the policy? The above-mentioned New York decisions introduced in evidence hold, in substance, that the beneficiary under a life-insurance policy which provides that the insured may change the beneficiary at any time has no vested interest in the policy. ' This being true, and the law of the State of New York being controlling in this case, it clearly appears that the insured had the right, without the consent of the beneficiary, to pledge the policy for the loan which he obtained from the insurance company, and that the loan was valid and binding against the policy. The fact that the beneficiary in the policy was never changed is immaterial.'

In our opinion the second question must be answered in the negative. The agreed statement of 'facts shows that the last premium paid by the insured was on January 5, 1913; which carried the policy to January 5, 1914, with the privilege of reinstatement, under certain conditions, if applied for within six months after the lapse of the policy for non-payment of the annual premium. The twelve-hundred-dollar loan, besides interest thereon, had never been paid, and was outstanding against the policy at the time of the death of the insured. Had the policy been in force, its cash surrender value would have been $1,200, the same amount as the outstanding loan. Hnder these circumstances, and under the provisions of the policy, the policy never became a paid-up, nonparticipating contract. The second paragraph of the “privileges” in the policy, of which the insured could have taken advantage, is as follows: “That if, after payment of premiums for three or more years, defaults are made in the payment of any premium, the insured may, within six months after such default, select one of the methods of settlement shown in the table of loans, cash surrender, paid-up and extended insurance values (any indebtedness of the insured to the company being first deducted therefrom). Failing to select a method of settlement within the six months specified, then this policy shall automatically become a nomparticipating paid-up policy for the amount stated in the table below, for the end of the last year for which complete annual premiums have been paid, provided there he no unpaid loan thereon” (italics ours). There being an unpaid loan on this policy, and it appearing that the insured lived for nearly ten months after the lapse of the policy for non-payment of the last annual premium due, and during all this period of time he made no effort to avail himself of any of the privileges of the policy, in our opinion the policy was absolutely dead at the time of "the death of the insured, and nothing . was due under it to the beneficiary. It appears that the insurance company cancelled the policy four months after the lapse thereof by reason of the non-payment of the annual premium due, and counsel for the plaintiff in error contends that as this cancellation of the policy by the company was made two months before they had a right to do so, the cancellation was void. In support of this contention he cites McEachern v. New York Life Insurance Co., 15 Ga. App. 222 (82 S. E. 820). In that case, however, the cancellation of the policy was made not only before the expiration of the six months, hut after the death of the insured; and also a demand for the payment of the policy was made hy the administrator of the insured before the expiration of the six months. The insured in that case having died before the expiration of the six months, and without having exercised his right of election between the privileges specified in the policy, such right survived to his legal representative. In the instant case the insured lived nearly ten months after his default in the payment of- the premium due, and at his death the time had long passed in which he or his representative could have revived the policy or have exercised any right of election of the benefits specified therein. Although the cancellation of the policy was made by the insurance company before the expiration of the six months, the insured, by failing for nearly ten months to take any steps for his reinstatement or a revival of the policy, for-: feited all rights under the policy. In view of’ the outstanding loan, and the length of time that had elapsed since the default in the payment of the last due premium, it is clear to us that at the death of the insured the policy, although prematurely cancelled, had no value whatever. Under the facts of the case the value of the policy had been exhausted by the loan of $1,200.

In our opinion the trial judge did not err in rendering judgment in favor of the defendant.

Judgment affirmed.

JenJcins and BloodwortJi, JJ., concur.


text:
      8381.

    Smith v. Monroe Oil and Fertilizer Company.
    Decided July 5, 1917.
   Broyles, P. J.

1. In this case, the original attachment and the answer of the garnishee having been lost, copies of the same were duly established by order of the court, without objection. . Erom these established copies it appeared that the summons of garnishment was returnable to the April quarterly term, 1913, of the city court of Monroe, which convened on the first Monday in April, and that the answer of the garnishee was filed on July 23, 1913, during the July term of the court. The July term of the court convened on July 7, 1913, and on that day was adjourned over to July 21, 1913. Under these circumstances the answer was not made in the time allowed by law, and the court did not err in sustaining the demurrer interposed and in striking the answer. Bearden v. Metropolitan Street R. Co., 82 Ga. 605 (9 S. E. 603); Mashburn v. Harrell, 12 Ga. App. 327 (77 S. E. 207).

(a) Under the other facts of the case, the fact of the adjournment of the court by the judge on July 7 (the first Monday in July) over to July 21 (the third Monday in July), as per order of the court previously published, does not affect the above ruling.

(b) No afiidavit was filed by the garnishee to show that the summons of garnishment served on him was returnable to the July term of the court, nor did he make any explanation as to why he failed to make his answer by the first day of the second term of the court after the summons of garnishment had been served upon him. His attorneys, however, when the motion to strike the answer 'was made, presented an afiidavit, signed by R. M. Wright (the defendant in the original attachment), and by one J. W. Smith, which stated that the original summons of garnishment served upon the garnishee required him to appear and answer at the July term of the court. The trial judge did not err in refusing to hear testimony in support of this afiidavit.

'(c) In the established copies of the original summons and answer, by an obvious clerical error, the name “J. M. R. Wright” appears therein instead of the name of “J. M. R. Smith,” the garnishee. The trial judge certifies in the bill of exceptions that no point as to this error was made, and that the established copies were in no way attacked, on the hearing before him. This being true, the plaintiff in error will be held to have waived this clerical error-, and will not now be heard to bring it in question.

2. The court did not err in rendering judgment against the garnishee for the full amount of the original judgment against the defendant in attachment.

Judgment affirmed.

JenJcins and BloodwortJi, JJ., concur.

Garnishment; from city court of Monroe—Judge Stone. December 7, 1916.

Walker & Roberts, for plaintiff in error.

R. L. Gox, W. 0. Bean, contra.


text:
    8447.
    Stewart & Griffin v. Blalock.
    Decided July 5, 1917.
    Complaint; from city court of Quitman—Judge Long. January 20, 1917.

      Bennet & Harrell, for plaintiffs in error.

      Branch & Snow, contra.
   Broyles, P. J.

1. As the motion for a new trial of the ease embraced the ground that the verdict was contrary to the evidence and without evidence to support it, under repeated rulings of this court the assignment of error based upon the refusal of the court to award a non-suit will not be considered.

2. It being stated in the written contract of sale, which was put in evidence, that the property sold thereunder “is sold without any guarantee as to its kind or quality, and is purchased by the maker of this obligation with the understanding that no warranty shall be implied as against the seller,” the court erred in overruling the timely motion of the defendant to rule out the plaintiff’s testimony, “I said you guaranteed this mare to me, and I expect you to take care of it;” the grounds of objection to this testimony being that the contract evidencing the trade between the plaintiff and the defendant was in writing, and that this writing was the highest and best evidence, and that it expressly waived any implied or express warranties on the part of the sellers. This error, however, was harmless, and does not require a new trial of the case, as the original contract, evidenced by this writing had by consent been rescinded, and the contents of the writing were immaterial. This suit ipas not based upon the original contract, but was an action of complaint.

3. Under the evidence, the excerpt from the charge of the court, as complained of in the special grounds of the motion for a new trial, was authorized, and was not erroneous for any other reason assigned.

4. Under all the facts of the case, the failure of the court to charge (without request) certain principles of law, as complained of in the motion for a new trial, was not erroneous.

5. The evidence authorized the verdict.

Judgment affirmed.

Jenkvns and Bloodworth, JJ., concur.


author: Bboyles, P. J.

text:
    8459.
    McDonald & Griffin v. Horton.
    Decided July 5, 1917.
    Complaint; from city court of Bainbridge—Judge Spooner. January 11, 1917.

      J. R. Wilson, for plaintiffs in error.

      C. W. Wimberly Jr., contra.
   Bboyles, P. J.

1. In a suit upon a promissory note, brought by the transferee and holder of the note, where the note itself shows that it was transferred to the plaintiff for value and before its maturity, the indorsements and transfers are presumed to be genuine and the dates thereof correct; and a plea which fails to deny' unequivocally the genuineness of the indorsements and transfers on the note, or the dates thereof, is insufficient as a plea of non est factum. Lester v. McIntosh, 101 Ga. 675 (29 S. E. 7) ; Taylor v. Johnson, 18 Ga. App. 161 (89 S. E. 77).

2. Where such a note as is described above is sued on by the transferee and holder, its production by the plaintiff at the trial is prima facie evidence that he acquired it for value, before maturity, and without notice of any fact going to defeat its collection. As against him, payment made to the payee before the maturity of the instrument will not be a defense, without showing that the payee had possession of the note at the time, or was then the owner of it, or for some other reason had a right to receive the money. Paris v. Moe, 60 Ga. 91; Haug v. Riley, 101 Ga. 386 (29 S. E. 44, 40 L. R. A. 244) ; Rhodes v. Beall, 73 Ga. 642; Jones v. Dannenberg, 112 Ga. 428 (37 S. E. 729, 52 L. R. A. 271).

3. Under the foregoing rulings the plea failed to set up any legal defense against the plaintiff, who, under the facts of the case, was presumed to be the bona fide holder of the note before due and for a valuable consideration; and although the plea denied that the plaintiff was such a bona fide holder, the facts stated therein were insufficient to support this bald assertion, and the court did not err in striking the plea, or in thereafter entering up judgment against the defendants for the full amount sued for.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


text:
    8472, 8473.
    Phillips v. Bridges; and vice versa.

   Bboyles, P. J.

1. On a negotiable promissory note, dated December 13, 1905, and payable one month after date, the payee made the following indorsement: “For value received, I transfer and assign to Bainbridge State Bank the within note and mortgage, with full recourse on me. Dee. 13, 1905. D. Phillips.” In a suit upon the note, brought against the maker and the payee by the- transferee and holder of the note, the payee was allowed, over appropriate and timely objections of the plaintiff, to testify that he was merely an accommodation indorser of the note. Held, that under the particular facts of the case, and especially in view of the solemn recital in the written assignment of the note, signed by the payee, that for value received he transferred and assigned it with full recourse on himself, he was estopped from testifying that as a matter of fact he was an accommodation indorser only. This case does not fall within any of the exceptions to the well-known rule of law that parol evidence is inadmissible to contradict or vary the terms of-an unambiguous written contract. Section 3556 of the Civil Code of 1910, which provides that “If the fact of suretyship .does not appear on the face of the contract, it may be proved by parol, either before or after the judgment (the creditor not being delayed in his remedy by such collateral issue between the principal and his surety), if before judgment the surety shall give notice to the principal of his intention to make such proof,” is clearly not applicable to the facts of this case. Had this illegal testimony (the admission of which, under the other facts of the case, was very harmful to the plaintiff) been rejected, a verdict fQr the plaintiff would have been demanded.

Decided July 5, 1917.

Complaint; from Miller superior court—Judge Worrill. January 10, 1917.

P. D. Rich, for plaintiff.

B. B. Bush, N. L. Stapleton, W. V. Custer, for defendant.

2. It appearing that the question made in the crossbill of exceptions is controlling upon the case as a whole, it has been first considered; and inasmuch as the judgment therein is reversed, the alleged errors in the main bill of exceptions will not be considered. Gay v. Gay, 108 Ga. 739 (32 S. E. 846); Moore v. Kiser, 144 Ga. 460 (2) (87 S. E. 403) ; DeLoach v. Georgia Coast & Piedmont R. Co., 144 Ga. 678 (3) (87 S. E. 889).

3. The contention in the brief of counsel for the plaintiff in error, that the cross-bill of exceptions should be dismissed, is without merit. Where this court has jurisdiction of the writ of error on a main bill of exceptions, it will consider and decide all questions properly made by a cross-bill of exceptions, although such questions may be interlocutory in character, where, under the judgment of this court, the case is to be again tried in the lower court. Civil Code (1910), § 6139; Sheppard v. Daniel Miller Co., 7 Ga. App. 760 (4) (68 S. E. 451).

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

Jenkins and Bloodworth, JJ., concur.


author: Bkoyles, P. J.

text:
    8484.
    Ricks v. Smith.
    Decided July 5, 1917.
    Foreclosure of lien; from Jones superior court—Judge Park. January 15, 1917.
    The following is the agreed statement of facts in the case: "Thomas G-. Smith, the defendant, owns a tract of land described in the original petition in this case, and on or about February 24, 1915, entered into a contract with Shaw Brothers Company, under which contract said Shaw Brothers Company erected a brick store building on said premises at and for the sum of $5,200. Shaw Brothers Company completed the building according to the contract, plan, and specifications, and was paid by Smith the full contract price, without requiring from the contractor an affidavit as to the payment of all bills for labor and material, or producing any waiver in writing as to the liens of laborers or materialmen. On March 11, 1915, Shaw Brothers Company made a contract with the plaintiff, L. C. Bicks, under which the plaintiff agreed to cover the roof of said building and put up four conductor downspouts, for the sum of $400. This work was undertaken by the plaintiff and finished on April 15, 1915, according to the contract, plans, and specifications. The plaintiff furnished material of the value of $315, in complying with and completing his said contract, and furnished labor in doing the work, of the value of $85. When the work on the roof was begun the plaintiff spent the first day on the works, starting the workmen off and directing the manner in which the work should be done, but did no actual manual labor himself. All of the actual manual labor on the job was done by persons employed by the plaintiff. On July 9, 1915, the plaintiff recorded in the office of the clerk of the superior court of 'Jones county his claim of lien as a contractor, upon the property described in the original petition, to the amount of $400, the sum for which he was to do said work on said building; the land described in the original petition being located in Jones county, Georgia. A copy of said recorded lien is hereto attached, marked exhibit ‘A’ and made a part hereof. The plaintiff sued the said Shaw Brothers Company on said contract” and on July 24, 1915, at eleven o’clock a. m., the plaintiff obtained a judgment against the said Shaw Brothers Company for said sum of $400, in the municipal court, City of Macon, which said court has jurisdiction of the subject-matter and of the person of said Shaw Brothers Company. At about five o’clock p. m. on the said 24th day of July, 1915, the said Shaw Brothers Company filed its voluntary petition for adjudication in bankruptcy in the district court of the United States for the western division of the southern district of Georgia, said court having jurisdiction of the person of said Shaw Brothers Company and of the bankruptcy proceedings. On February 19, 1916, the said Shaw Brothers Company was granted its discharge in said bankruptcy proceedings. The plaintiff in this proceeding was scheduled and had actual knowledge of the proceeding. The plaintiff has not been paid anything on said contract, and there is now dne him the said sum of $400 plus interest.”
   Bkoyles, P. J.

“There can be no valid judgment of foreclosure of a materialman’s lien for materials furnished to a contractor, upon the real estate improved with such materials, in the absence of valid judgment in personam in favor of the materialman against the contractor for the price of such materials, rendered previously in an independent suit against the contractor or concurrently in the foreclosure suit where the contractor and the owner of the land are both made - parties and duly served.” Columbian Iron Works v. Crystal Springs Bleachery Co., 145 Ga. 621 (89 S. E. 751) ; Lombard v. Trustees, 73 Ga. 322; Clayton v. Farrar Lumber Co., 119 Ga. 37 (45 S. E. 723) ; Mauck v. Rosser, 126 Ga. 268 (55 S. E. 32) ; Griffin v. Gainesville Iron Works, 144 Ca. 840 (88 S. E. 201); Atkinson v. Wingate Plumbing Co., ante, 480.

2. “The lien of a judgment rendered on an unsecured claim of a creditor, within four months prior to the filing of a bankruptcy proceeding by or against his debtor, becomes, under section 67 f of the bankrupt act of 1898, null and void if the debtor be duly adjudicated a bankrupt; and, in that event, the invalidity of such judgment lien relates back to the time the judgment was entered.” Mohr v. Mattox, 120 Ga. 962 (48 S. E. 410) ; Pike Lumber Co. v. Mitchell, 132 Ga. 675 (64 S. E. 998, 26 L. R. A. (N. S.) 409) ; Clarke v. Larramore, 188 U. S. 486 (23 Sup. Ct. 363, 47 L. ed. 555, 9 Am. Bk. R. 476).

(a) In such a case the liability of the contractor is annulled, and the materialman’s lien can not thereafter be foreclosed against the property of the owner and a judgment be rendered against him. Philip Oarey Mfg. Co. v. Viaduct Place, 1 Ga. App. 707 (4) (58 S. E. 274).

(h) The ruling in McKenney v. Cheney, 118 Ga. 387 (45 S. E. 433), is not in conflict with this holding. That ease, as pointed out in Mohr v. Mattox, supra, is clearly distinguished by its particular facts.

'3. Under the agreed statement of facts, and the rulings in the preceding notes, the discharge of the contractor in the bankruptcy proceedings invalidated the judgment previously obtained against him, and the lien of the plaintiff could not thereafter be foreclosed against the property of the defendant and a judgment rendered against him. The court therefore did not err in rendering a judgment in favor of the defendant.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.

Walter DeFore, for plaintiff.

J. B. Jackson, Hardeman, Jones, Park & Johnston, H. 8. Strozier, for defendant.


text:
    8489.
    Montgomery v. Bowen.
    Decided July 5, 1917.
    Foreclosure of lien; from Fulton superior court—Judge Bell. January 27, 1917.

      J. F. Methvin, for plaintiff.

      J. M. Simonton, George Gordon, for defendant.
   Broyles, P. J.

1. A motion to vacate and set aside a verdict and judgment, made at the term of the court at which' they were rendered, is addressed to the sound legal discretion of the court; and that discretion, unless manifestly abused, will not be controlled. Lambert v. Smith, 57 Ga. 25; Moore v. Kelly & Jones Co., 109 Ga. 798 (35 S. E. 168).

2. There was an acute conflict in the evidence, submitted in the form of affidavits, as to whether the movant and his counsel had been guilty of such laches as would prevent the setting aside of the verdict and judgment. -Upon these questions of fact involved the trial judge was the trior, and his finding thereon is conclusive. It is not made to appear that he abused his discretion in granting the motion.

Judgment affirmed.

Jenkins and Bloodworth. JJ., concur.


text:
    8515.
    First National Bank of Rome v. Barrett.
   Broyles, P. J.

1. The court erred in admitting in evidence the various letters set out in the bill of exceptions, over objection from the plain- ■ tiff that their execution had not been proved. Freeman v. Brewster, 93 Ga. 648 (6) (21 S. E. 165); Kent v. Wadley Southern Ry. Co., 136 Ga. 857, 859 (72 S. E. 413); Lumpkin v. Provident Loan Society, 15 Ga. App. 816 (2) (84 S. E. 216).

2. The plaintiff bank, as holder, brought suit on a series of promissory notes, all made payable to Interstate Trading Company and all indorsed by Interstate Trading Company and by Interstate Chemical Company. The defendant in his plea admitted the execution of the notes, but denied that the plaintiff was a bona fide purchaser of the notes before or after maturity, and alleged that there was a total failure "of consideration for the same, and that if the plaintiff did buy the notes (which is denied) it knew of this failure of consideration at the time of the purchase. The burden was upon the defendant to sustain these allegations of his plea, and this burden he failed to carry. The court therefore erred in directing a verdict in his favor.

Decided July 5, 1917.

Complaint; from city court of Carrollton—Judge Beall. January 19, 1917.

Buford Boylcin, for plaintiff. J. 0. Newell, for defendant.

Judgment reversed.

Jenhvns and Bloodworth, JJ., concur.


text:
    8523.
    THOMAS v. EMANUEL, sheriff.
    Under the agreed statement of facts, and the ruling in Lumsden v. Leonard, 55 Ga. 374, the levy of the fi. fa. on the property of the plaintiff in error was proceeding illegally, and the court erred in overruling and finding against the affidavit of illegality, and in ordering that the fi. fa. proceed.
    Decided July 5, 1917.
    Affidavit of illegality; from city court of Bainbridge—Judge Spooner. February 12, 1917.

      Hartsfield & Conger, for plaintiff in error.
   Broyles, P. J.

The following is the agreed statement of facts in the ease: "M. C. Williams procured judgment against one Aaron Andrews, from which execution issued and was levied by Emanuel, sheriff, on certain personal property,’to which Artie Andrews, wife of Aaron Andrews, filed her claim, and gave a forthcoming bond payable to Emanuel, sheriff, with R. L. Lane and Alex Thomas as sureties thereon, conditioned for the forthcoming of the property levied upon, at the time and place of the sale, in the event the property was found subject to the claim of Artie Andrews. Upon the trial of the claim of Artie Andrews the property was found subject. The sheriff proceeded with the levy and ■the property was not forthcoming. Thereupon Emanuel, sheriff, brought suit against Artie Andrews principal, and R. L. Lane and Alex Thomas, securities on the forthcoming bond, and obtained judgment on October 6, 1913, for $197.20 principal, and $32.12 interest and cost. Execution was issued from this judgment on October 9, 1913. On January 2, 1914, R. L. Lane and Alex Thomas, securities, personally conducted S. W. Martin, a deputy sheriff in the office of J. H. Emanuel, sheriff, to the premises of Artie Amclrews, principal defendant, and there pointed out to him sufficient personal property in value, and ordered him to have a levy made upon the same and sell the same in satisfaction of said fi. fa.; said personal property consisting of 5,000 pounds of hay and fodder, more or less, 250 bushels of corn, one two-horse wagon, and one bay horse, white spot in -face and white hind foot. On February 5th, 1914, W. J. Frederick, coroner of Decatur county, levied said fi. fa. in favor of J. H. Emanuel, sheriff, against these defendants, upon the above-described property, seizing the same and taking it into his possession. The said levying officer left said personal property on the premises of Artie Andrews, principal defendant, and took no forthcoming bond therefor. On February 12, 1914, Malcomb Andrews made his claim to said property under oath, and accompanied the same with a pauper affidavit, which claim and pauper affidavit were received by the levying officer and returned by him, together with the fi. fa., to the city court of Bainbridge for trial, and filed in office June 13th, 1914.

■'“Upon the trial of said claim on June 26th, 1915, the jury found the property subject, and found against the claimant for 10 per cent, damages, and judgment was thereupon entered. J. H. Emanuel, sheriff, having gone out of office, and S. W. Martin having succeeded him as sheriff on January 1st, 1915, the said Martin, sheriff, at the instruction of attorneys for Emanuel, advertised the personal property levied on by W. J. Frederick, coroner, for sale on the first Tuesday in December, 1915, and on said date exposed the same for sale, although said personal property was not at the place of sale,- and knocked the same off to R. L. Lane, one of the defendants in fi. fa., he being the highest and best bidder, for a sufficient sum to satisfy the fi. fa. in full. The said Martin, sheriff, was not able to make delivery of the property.so sold, as the same could not be found and was not forthcoming, and no forthcoming bond has been taken by Frederick, coroner, -under his levy and seizure; therefore the purchase price bid by Lane was not paid into court. Acting under the order of attorneys for Emanuel, sheriff, plaintiff in fi. fa., S. W. Martin, sheriff, on May 5, 1916, levied said fi. fa. of Emanuel, sheriff, upon 61 2/3 acres of land described in the levy as the land of Alex Thomas, one of the securities, defendant in fi. fa., and advertised the same for sale on the first Tuesday in June, 1916. To this levy Alex Thomas filed in court his affidavit of illegality now under consideration, the grounds of the illegality being stated therein. Lane, one of the sureties, at the suggestion of Emanuel, sheriff, carried Frederick, coroner, to the premises of Artie Andrews, ’principal defendant, and pointed out the personal property on which the coroner later levied on February 5th, 1914. This was some time before Lane took Martin to said premises and pointed out the same property to him, January 2nd, 1914.”

It is unnecessary to add anything further to what is said in the headnote.

Judgment reversed.

Jenlcins and Bloodworth, JJ., concur.


text:
    8535.
    Yates v. Bank of Donalsonville.
    Decided July 5, 1917.
    Complaint; from city court of Bainbridge—W. Y. Custer, judge pro hac vice. January 10, 1917.

      A. E. Thornton, for plaintiff in error.
   Broyles, P. J.

This was a suit on a promissory note, and under the pleadings and the evidence the court did not err in directing a verdict for the plaintiff for the full amount sued for, with interest and attorney’s fees.

Judgment affirmed.

Jenlcins and Bloodworth, JJ., concur.


text:
    8549.
    Bank of Omega v. Ford.
   Broyles, P. J.

1. A surety upon a promissory note secretly infected with usury, of which he had no knowledge, is discharged from liability if the note contains a waiver of homestead. Lewis v. Brown, 89 Ga. 115 (14 S. E. 881) ; Harrington v. Findley, 89 Ga. 385 (15 S. E. 483); Howard v. Johnson, 91 Ga. 319 (18 S. E. 132) ; Prather v. Smith, 101 Ga. 283 (28 S. E. 857) ; Hancock v. Bank of Tifton, 6 Ga. App. 678 (65 S. E. 784) ; Morris v Reed, 14 Ga. App. 729 (5) (82 S. E. 314) ; Denton v. Butler, 99 Ga. 264 (25 S. E. 624).

(a) In an action on such a note, where the usury is shown, it is incumbent upon the plaintiff, in order to hold the surety liable, to prove affirmatively that he signed'the note with knowledge of the usury. Denton v. Butler, supra; Prather v. Smith, supra.

2. Tn Gay v. Gay, 8 Ga. App. 804 (70 S. E. 182), the only case cited and relied on in the brief of counsel for the plaintiff in error, the facts were very similar .to those of tins case, but in that case the trial judge directed a verdict in favor of the plaintiff, and that judgment was by this court held to be error. The statement in that case, to the effect that the question whether the defendant, under the facts of the case, was ignorant of the fact that usury was included in the note which he signed as surety (the defendant’s uncontradicted testimony being that he was ignorant of such fact) should have been submitted to the jury, was not necessary in the determination of the case, and therefore was obiter dictum.

Decided July 5, 1917.

Complaint; from city court of Tifton—Judge Price. February 13, 1917.

B. D. Smith, for plaintiff in error.. J. S. Bidgdill, contra.

3. Applying these rulings to the facts of the instant case, the court did, not eri in directing a verdict for the defendant.

Judgment affirmed.

JenMns and Bloodworth, JJ., concur.


text:
    8657.
    Wise v. Thurman.
   Bkoyles, P. J.

1. In a suit for breach of a contractor’s bond, brought against the principal and surety therein, the fact that the owner of the property' failed to take a sworn statement of the contractor, as provided for in paragraph 2 of section 3352 of Park’s Ann. Code, is no valid defense for the surety, where the bond contained no stipulation that such an affidavit should be taken. The failure to take the affidavit did not increase the surety’s risk or liability under the bond. Thomason v. Keeney, 8 Ga. App. 852 (70 S. E. 220). See also, as to the principle involved, Massachusetts Bonding Co. v. Realty Trust Co., 137 Ga. 693 (4). (73 S. E. 1053). This ruling is not contrary to that in Blackburn v. Morel, 13 Ga. App. 516 (79 S. E. 492), since in that case, as shown by the decision, it was stipulated in the contract that the affidavit should be taken.

2. Under the ruling in Thomason v. Keeney, 4 Ga. App. 721 (62 S. E. 470), the petition in the instant case was not subject to general demurrer.

3. The original petition alleged a breach of the stipulation of the bond that the house when completed was to be delivered free from liens or incumbrances of any kind, and with all bills for labor and material on account of the same fully paid and discharged. It set out bills amounting to over $1,000 which were left unpaid by the contractor, and alleged that liens for them had been filed against the property of the plaintiff, and that foreclosure proceedings were threatened and were about to be instituted. The petition was specially demurred to on the ground that it showed upon its face that there had been no recovery against the plaintiff on account of the unpaid bills referred to, and that he could not file suit for breach of the bond until the claims of lien had been adjudicated against his property in the manner provided by law, and that the petition showed that no such adjudication had been made. In an amendment allowed over the defendant’s objection, the plaintiff set out that judgment had been obtained against him, by reason of said unsatisfied liens for material furnished in the erection of his house, to the amount of $693.44; and he gave that amount as the measure of the damage suffered by him by reason of the breach of the bond. The court did not err in allowing this amendment, or in overruling all the grounds of the demurrer.

Decided July 5, 1917.

Action on bond; from city court of Atlanta—Judge Reid. Jan-nary 6, 1917.

Daley, Chambers & Daley, for plaintiff in error.

George Gordon, contra.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


author: Jenkins, J.

text:
    8209.
    Weeks et al. v. Reliance Fertilizer Company.
   Jenkins, J.

1. Under the settled and fundamental policy of our law as embodied in section 4863 of the Civil Code of 1910, it is reversible error for the trial judge to express or to intimate his opinion as to what has or has not been proved; but the court may properly propound questions to a witness with a view to eliciting the truth of the case, especially where the purpose of such interrogation is to render definite the meaning of testimony otherwise vague, provided that in so doing no expression or impression is given of any opinion held by the judge as to what has been proved, or- as to the credibility of the witness, oías to which party should, under the evidence, prevail. Johnson v. Leffler Co., 122 Ga. 670 (50 S. E. 488).

2. After the fact of insanity has.beep established by a court of competent jurisdiction in this State, and after the affairs of the insane person have been vested in a guardian, the power of the ward to contract, while such judgment and appointment remain of force, is gone, but where no guardian has been appointed and a contract is made by one engaged in business in his' own behalf, who has been previously adjudged insane, the validity of the contract depends upon whether or not he was actually insane at the time the contract was entered into. Such a previous adjudication furnishes prima facie evidence that such condition continued to exist. The presumption so raised may be rebutted by proof. Slaughter v. Heath, 127 Ga. 756 (57 S. E. 69, 27 L. R. A. (N. S.) 1) ; Field v. Lucas, 21 Ga. 447 (68 Am. D. 465) ; American Trust & Banking Co. v. Boone, 102 Ga. 202 (29 S. E. 182, 40 L. R. A. 250, 66 Am. St. R. 167).

Decided July 19, 1917.

Complaint; from Colquitt superior court—Judge Thomas. May 8, 1916.

Hendricks, Mills & Hendricks, for plaintiffs in error.

James Humphreys, Franklin & Lang dale, contra.

3. The evidence sustains the verdict, and there is no merit in the exceptions taken.

Judgment affirmed.

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


text:
    8313.
    LOVEJOY v. LAMAR.
    1. On the issue as to whether instructions of the plaintiff were violated by the defendant, by lending $3,000 received by him as the plaintiff’s agent, the equivalent of a finding that he did violate her instructions was made by the finding of the auditor that at the time this money came into the defendant’s hands, he “knew that it was the wish and desire of his principal,” the plaintiff, that “the said sum should be then and there paid over to” a named person in payment of her note held by that person, and that' the defendant “loaned the said money as hereinbefore set forth and without the knowledge and consent of his principal.” There was sufficient evidence to authorize this finding.
    2. The motion to recommit the ease to the auditor, in order that a specific finding might be made by him on the issue as to whether the plaintiff ratified the loan in question, should have been granted, although a finding on this issue might be inferred from his finding of an amount due the plaintiff' by the defendant. The judgment is therefore reversed, with direction that the case be recommitted to the auditor in order that a specific finding may be made on this issue.
    Decided July 19, 1917.
    Attachment; from Pulaski superior court—Judge Graham. June 13, 1916.

      W. L. Grice, H. E. Coates, Hall & Grice, for plaintiff in error.

      H. F. Lawson, contra.
   Jenkins, J.

Viewing most favorably for the plaintiff the evidence in the case, with all reasonable inferences and deductions arising therefrom, we think it is possible to hold that the evidence was sufficient to authorize the finding of the auditor, and of the jury sustaining his finding, that “At the time the $3,000 aforesaid came into the hands of T. E. Lovejoy on July 11, 1901, he then and there knew that it was the wish and desire of his principal, Mrs. Cornelia Lamar, that the said sum should be then and there paid over to one T. H. Grace in full satisfaction and payment of the note then held by said T. II. Grace and signed by the said Mrs. Cornelia Lamar, and that he loaned the said money as hereinbefore set forth and 'without the knowledge and consent of his principal, said Mrs. Cornelia Lamar.” This being true, it is our opinion that the finding is equivalent to sustaining the allegation, made in the plaintiff’s petition, that the loan made by the agent was in violation of the instructions given him by the principal. Where the contention of the principal is, not that the agent exceeded the scope of his general authority, but that he violated specific instructions as to a particular matter, the burden is upon the principal to show that such instructions were given, and where this has been done the agent is charged with strict compliance with the instructions, fio matter how broad his general powers as agent might otherwise have been. Where the agency is not coupled with an interest, the agent’s authority to act for his principal, be it special and limited or broad and general, is based at last solely upon the consent of the principal. If, therefore, when the loan’ complained of was made, the general agent knew that he was acting therein contrary to the wish and desire of his principal as to that transaction, he proceeded without her consent, and therefore without her authority. While it could be possible for an agent to proceed contrary to the expressed judgment of his principal if, despite such an expression, his discretionary powers and authority with reference to the subject-matter remained, yet where the act of the agent is not only against the judgment, but against the known wish, and therefore necessarily expressed desire of the principal, such known wish and desire must be taken as equivalent to orders or instruction. Gordon v. Cobb, 4 Ga. App. 51 (60 S. E. 831).

Under the pleadings and the evidence, one of the issues involved was whether or not the principal had ratified the making of the loan about which she complained. Under the order of the judge all questions of law and of fact were submitted to the auditor. The finding of the auditor, “that at the time the $3,000 aforesaid came into the hands of T. E. Lovejoy on July 11, 1901, he then and there knew that it was the wish and desire of his principal,” etc., seems to have excluded a finding upon the issue of fact relative to such ratification, although such a finding might be said to have been legally involved in the money judgment found for the plaintiff. We think the auditor should have made a specific finding on each of the material issues litigated before him, including that of ratification by the principal; and, although a ruling upon this issue might be inferred from his report, by reason of his finding of an amount due plaintiff by defendant, we do .not think this finding is sufficient where the defendant made a timely motion for a recommitment for this purpose. Reynolds v. Martin, 55 Ga. 629; Weldon v. Hudson, 120 Ga. 609 (48 S. E. 130). Upon the refusal of the judge to reoommit, the defendant was limited, in his right to a trial by a jury, to exceptions taken to the finding of fact set forth in the first paragraph of this decision; and even though, upon a trial of the narrow issue thus made, the judge charged the jury upon the law of ratification, we think the presumption of law in favor of the auditor’s finding,, as there made, gave to the plaintiff an undue advantage relative to the issues of ratification, upon which no specific finding was returned. We therefore think the excep-i tions. pendente lite to the refusal of the judge to recommit' the casé to the auditor, in order that he might enter his findings of fact upon the issue of ratification, are well taken; and all subsequent proceedings in the case are therefore nugatory. Direction is given that the case be recommitted to the auditor, in order that he may return a specific finding upon the issue of ratification, as made by the pleadings and evidence;

Judgment reversed, with direction.

Broyles, P. J., and Blood-worth, J., concur.


author: Bloodworth, J.

text:
    8311.
    PENINSULAR NAVAL STORES COMPANY v. THE STATE.
    1. A declaration in attachment, filed under section 1823 et seq'. of the Civil Code of 1910, alleges with sufficient definiteness the defendant’s knowledge of the adulteration of spirits of turpentine, when it follows the language of section 1824.
    2. “Verdicts are to have .a reasonable intendment, and are to receive a reasonable construction;” and “where a verdict may by a reasonable construction be understood and a legal judgment entered thereon, it is sufficient.”
    3. “The market price of a commodity is the actual .price at which it is commonly sold. The price may be fixed by sales in the market at or about that time. If no sales can be shown on the day, due recourse may be had to sales before or after that day, and for that inquiry a reasonable range in point of time is allowed.”

      4. There was nothing harmful to the plaintiff in error in any of the rulings on the admission of evidence, complained of in the 10th, 11th, and 12th grounds of the motion for a new trial.
    Decided July 19, 1917.
    Forfeiture; from Chatham superior court—Judge Charlton. April 10, 1916.

      Hitch & Denmark, John G. Kennedy, for plaintiff in error.

      Walter 0. Hartridge, solicitor-general, BoiChan & Herzog, contra.
   Bloodworth, J.

Under section 1833 et seq. of the Civil Code of 1910, the solicitor-general of the eastern circuit filed information in the name of the' State of Georgia for the purpose of having two lots of spirits of turpentine, one containing ten and the other sixty-eight barrels, forfeited, and, after the same was seized under attachment, filed a declaration on the attachment. The turpentine was claimed by the Peninsular Naval Stores Company, which intervened, filed plea and answer, and gave bond. The defendant moved to strike paragraphs 1 and 3 of the declaration. This motion was overruled, and exceptions pendente -lite were filed, and error is assigned thereon.

Paragraphs 1 and 3 of the petition each allege that the defendant knowingly had in its possession a certain number of barrels of spirits of turpentine, marked “D. G. Co.,” under date of February, 1913, the said spirits of turpentine being stored at the Seaboard Air-Line Naval Stores yard in Chatham county, for sale, consignment, or shipment, which said barrels of spirits of turpentine were adulterated without being marked on the outside of said barrels with the words and in the manner prescribed by the act of the legislature of the State of Georgia, approved August 37, 1913. These paragraphs were demurred to, “upon the ground that the same do not allege with sufficient definiteness and certainty the defendant’s knowledge of the adulteration of the spirits of turpentine therein described, as required by the act approved August 17, 1903, and codified in section 1834 et seq. "of the Code of Georgia of 1910; the word 'knowingly’ as used by the pleader having reference, apparently to defendant’s knowledge of its possession of the turpentine, rather than to defendant’s knowledge of the alleged adulteration of said turpentine.” There was no error in refusing to strike these paragraphs, . The declaration follows the language of the act. Civil Code (1910), § 1833 et seq.; Brown v. State, 14 Ind. App. 24 (42 N E. 244); Moeschke v. State, 14 Ind. App. 393 (42 N E. 1029-1030).

The-jury returned a verdict as follows: “We, the jury, find for the plaintiff against the Peninsular Naval Stores Company. That is to say, we believe that the turpentine attached was adulterated. We place the value of amount so ¿ttached at 3,600 gallons at 26 cents per gallon market price at that date. We estimate the amount at $936.00—dollars. Henry G. Greene, Foreman.” Thereafter the defendant filed a motion in arrest of judgment, and a motion to set aside the verdict, on the grounds that the verdict was too uncertain and indefinite to form' any legal' basis for judgment, and that it was not a legal finding on the facts, and was not responsive to and did not cover the issues raised by the pleadings. The plaintiff filed a motion to reform the verdict, and the defendant objected to this motion. " These three motions will be treated together. If the verdict as rendered is good and valid, it settles the questions raised by the three motions. Under the Civil Code (1910), § 5927, “Verdicts are to have a reasonable intendment, and are to receive a reasonable construction.” In Williams v. Brown, 57 Ga. 304, the 4th headnote is as follows: “Where a verdict majq by a reasonable construction, be understood, and a legal judgment can be entered thereon, it is sufficient.” See also Monk-Sloan Supply Co. v. Quitman Oil Co., 10 Ga. App. 390 (73 S. E. 522).

The last paragraph of the petition in this case is as follows: “That the plaintiff alleges the value of said spirits' of turpentine to be the sum of fifteen hundred ($1,500.00) dollars, [for?] which amount, together with costs of said proceedings, he prays a judgment may be recovered against said Peninsular Naval Stores Company as principal and said United States Fidelity & Guaranty Company as security.” Applying the rule laid down in the Williams ease just quoted, in the light of the code section, supra, and the pleadings,' we are convinced that the verdict can be easily understood, and a legal judgment entered thereon. The verdict clearly means what it states after being reformed; that is, “We, the jury, find for the plaintiff against the Peninsular Naval Stores Co. .. . the sum of $936.00.” “A canon of construction often applied to verdicts is that all surplusage may be disregarded. The maxim utile' per inutile non vitiatur saves a verdict from the taint of any ambiguity or uncertainty brought about by rejectable surplusage.” Monk-Sloan case, supra. See Southern Railway Co. v. Oliver, 1 Ga. App. 734 (58 S. E. 244); Geer v. Thompson, 4 Ga. App. 756 (3) (62 S. E. 500). While the words, “That is to say, we believe that the turpentine attached was adulterated,” add nothing to the verdict, their insertion does not render it invalid, and they can be stricken from the verdict as -surplusage. The verdict covers the issues made by the pleadings as shown by the prayer of the petition, quoted above. In his order allowing the verdict reformed the presiding judge said: “It seems to me that the verdict not only is susceptible of being put in proper shape, but [it] is questionable if it even needs reforming. The finding of the jury was certainly against the defendant, and the sum named is beyond doubt.” (From this order it appears that no objection was urged to the insertion of the name of the surety in the verdict.) We do not think there is any question as to the verdict as rendered being legal and definite; and therefore the judge did not err in refusing to arrest the judgment or set it aside, and no injury resulted from “reforming” the verdict.

When read in connection with the entire charge, there is no error in any of the excerpts complained of. We need not refer to grounds 5, 6, 7, and 8. of the motion for a new trial. In the 9th ground it is alleged that the court erred in charging the jury as follows: “If you should find for the plaintiff, you would ascertain first what value, if any, has been shown. Take the case and consider it and see what has been shown as to the value of this stuff at the time it was seized—what was the market value here. If there was no market value for it, the jury could consider the prices obtained for adulterated stuff by the sheriff at public sales.” It is alleged that this was error for the reason that, “with reference to the value,^ the jury should have been restricted to the proven market value of adulterated turpentine at the time and place of the seizure.” Market value is the price established by public sales in the way of ordinary business, as of merchandise. Sloan v. Baird, 162 N. Y. 327 (56 N. E. 752); Murray v. Stanton, 99 Mass. 345. The market price of a commodity is the actual price at which it is commonly sold. The price may be fixed by sales in the market at or about that time. If.no sales can be shown on the day, due recourse may be had to sales before or after that day, and for that inquiry a reasonable range in point of time is allowed. Douglas v. Merceles, 25 N. J. Eq. 144; Beach v. Raritan &c. R. Co., 37 N. Y. 457. If there is no market price, some other criterion of value must be adopted. Atchison &c. R. Co. v. Stanford, 12 Kansas, 354 (15 Am. R. 362). Applying these rules, it will be seen that there was no error in the charge complained of in this ground.

In the 10th ground complaint is made that the court erred in allowing the witness King to testify as follows: “I examined both lots in my capacity as supervising inspector of naval stores. I found this stuff to be adulterated with kerosene oil—mineral oil.” This was not error. The witness qualified as an expert. The evidence shows that he testified: “I have had about forty years experience in the naval stores and turpentine business in every capacity from turpentine operator up to my position. I have been distiller and producer, and am thoroughly familiar with turpentine.” Even if it was error to admit this testimony, its admission could not have been harmful; for this same witness testified, without objection: “All of this turpentine was adulterated except about six barrels; I think upon complete analysis these were free from adulteration. There were 72 barrels adulterated.” Even if there was. error in admitting the testimony of King and Meldrim, as complained of in the 11th and 12th grounds of the motion for a new trial, it could not have been harmful to the defendant, for, with this evidence out, the evidence of King that the market value for pure spirits of turpentine was about 36 cents a gallon at that time was in without objection, and the witness Wilson swore: “The difference between -the market value of pure spirits of turpentine and the value of adulterated spirits of turpentine is from 8 to 10 cents a gallon.” Under this evidence, the smallest price per gallon a jury could have found would have been the amount stated in the verdict, to wit, 26 cents.

In connection with the 12th ground the plaintiff in error urged that “The witness should not be allowed to testify as to the value of the stuff sold at other times, and his testimony should 'be con-' fined to the market value of this particular lot of turpentine at the time it was seized.” In fixing market value some latitude must be allowed, especially as to articles that are not sold daily or regularly on the market. See Douglas v. Merceles, and Beach v. Raritan &c. R. Co., supra.

No error of law was committed, and the evidence authorized the verdict.

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.


text:
    8317.
    NORTHWESTERN NATIONAL INSURANCE CO. v. SOUTHERN STATES PHOSPHATE AND FERTILIZER CO.
   Bkoyees, P. J.

1. In a suit upon a policy of fire insurance it is incumbent upon the plaintiff to allege in his petition that the property destroyed by fire belonged to him, or that he had some insurable interest therein, at the time of the fire. Civil Code (1910), § 2472; Morris v. Imperial Insurance Co., 106 Ga. 461 (32 S. E. 595); 1 Cooley’s Insurance, 215, 216; Hardwick v. State Insurance Co., 20 Or. 547 (26 Pac. 840) ; Western Assurance Co. v. McCarty, 18 Ind. App. 449 (48 N. E. 265) ; Dickerman v. Vermont Mutual Fire Insurance Co., 67 Vt. 99 (30 Atl. 808) ; Gustin v. Concordia Fire Insurance Co., 164 Mo. 172 (64 S. W. 178).

(а) Where the petition contains no such allegation, no cause of action is set forth.

(б) An assignment of the policy as collateral security will not enable the assignee to maintain an action, unless it is alleged in the petition that at the time of the fire he had 'an interest in the property insured. Peabody v. Washington County Mutual Insurance Co., 20 Barb. (N. Y.) 339; Fowler v. New York Indemnity Insurance Co., 26 N. Y. 422; Bayles v. Hillsboro Insurance Co., 27 N. J. Law, 163.

(c) A simple contract creditor, without a lien either statutory or contract, without a jus in re or a jus in rem, owning a mere personal claim against his debtor, has no insurable interest in the property of the debtor. Creed v. Sun Fire Office, 101 Ala. 522 (14 So. 323, 23 L. R. A. 180, 46 Am. St. R. 134); Foster v. Van Reed, 5 Hun (N. Y.), 321; Monroe Building &c. Association v. Liverpool &c. Insurance Co., 50 La. Ann. 1243, 1246 ( 24 So. 238); Bishop v. Clay Fire &c. Insurance Co., 49 Conn. 167.

2. In a policy of insurance a loss-payable clause which contains a stipulation to pay a named mortgagee to the extent of his interest in the policy does not amount to an assignment of the policy, but is a provision merely that the mortgagee is an appointee tp collect the insurance money due to the insured in case of loss; and the mortgagee must claim in the right of the insured, and not in his own. Eartford Fire Insurance Co. v. Liddell, 130 Ga. 8, 13 (60 S. E. 104, 124 Am. St. R. 157) ; Brunswick Savings Institution v. Commercial Union Insurance Co., 68 Me. 313 (28 Am. Rep. 56) ; Delaware Insurance Co. v. Greer, 61 L. R. A. 137, 139 (120 Fed. 916, 57 C. C. A. 188).

(a) The language in the “certificate of insurance” in the instant case is in some respects'analogous to such a loss-payable clause, but it is obvious that the holder and assignee of this “certificate” does not occupy as favorable a position as the mortgagee to whom a policy is made payable “as his interest may appear,” since in such a clause there is an express promise by the insurance company to pay to the mortgagee, and, in addition, such mortgagee has, to the extent of his mortgage, an interest in the property insured.

Decided July 19, 1917.

Action on insurance policy; from Biehmond superior court— Judge H. 0. Hammond. December 16, 1916.

The original petition was as follows:

“State of Georgia, Biehmond county. In the superior court of said county.

“The petition of Southern States Phosphate & Fertilizer Company, a corporation, shows that the Northwestern National Insurance Company is indebted to it in the sum of two thousand ($2,000) dollars, besides interest, arising on the following state of facts:

3. A custom, although universal in a particular locality, which contravenes a positive statute,- is invalid, and does not become part of the contract. Deadwyler v. Karow, 131 Ga. 227 (62 S. E. 172, 19 L. R. A. (N. S.) 197).

(a) Where, a local custom contravenes a positive statute, before it can become part of the contract it must appear that the party sought to be bound by it expressly agreed to waive his rights under the statute. Fleming v. King, 100 Ga. 449 (28 S. E. 239).

4. A contract of insurance, to be binding, must be in writing. Civil Code (1910), § 2470.

(a) An assignment of such a contract must likewise be in writing. St. Paul Fire &c. Insurance Co. v. Brunswick Grocery Co., 113 Ga. 786 (3) (39 S. E. 483) ; National Fire Insurance Co. v. Grace, 106 Ga. 264 (32 S. E. 100) ; Hartford Fire Insurance Co. v. Amos, 98 Ga. 533 (25 S. E. 575).

5. A note which on its face is subject to the terms of the contract between the maker and the payee is not a negotiable instrument. Hodges v. Hall, 5 Ga. 163; Fountaine v. Urquhart, 33 Ga. Supp. 184; Corbett v. State, 24 Ga. 287; Klots Throwing Co. v. Manufacturers’ Commercial Co., 179 Fed. 813 (103 C. C. A. 305, 30 L. R. A. (N. S.) 40), note; American Exchange Bank v. Blanchard, 7 Allen (Mass.), 333; 4 Am. & Eng. Enc. Law (2d ed.), 85.

(a) The “certificate of insurance” in the instant case was not even a promissory note, and, as it shows on its face that it is subject to the provisions of the policy of insurance, it, a fortiori, is not a negotiable instrument, although it is so denominated in the “certificate” itself.

6. When the principles of law stated above are applied to the pleadings in the instant case, it appears that neither the original nor the amended petition set forth a cause of action, and that the court erred in overruling the general demurrers interposed thereto.

7. The ruling in the preceding paragraph being' controlling in' this case, it is unnecessary to pass upon the question as to whether the petition was subject to the special demurrers filed.

Judgment reversed.

Jenkins and Bloodworth, JJ., concur.

“1. The defendant insurance company is a corporation organized under the laws of the State of Wisconsin, and having an agency and place of doing business in the city of Augusta, in said county.

“2. Petitioner shows that the defendant company made in writing a policy of fire insurance to Luke & Fleming, a partnership doing the business of cotton factors in the city of Augusta; that said policy bears the number of 506, and is dated September 26, 1915, and stipulates that in consideration of an annual premium of forty-two ($42) dollars, the said Luke & Fleming are thereby insured until the 25th day of September, 1916, to the amount of two thousand ($2,000) dollars, against direct loss or damage by fire to cotton in bales while contained in the rear of the one-story metal-roof building situated on the east side of Eighth street, No. 116, in the city of Augusta, Georgia, and known as Block No. 1.

“3. Petitioner alleges that on October 20, 1915, and while the aforesaid policy of fire insurance was in full force and effect, the defendant company, by its authorized agents at Augusta, Ga., to wit, Timberlake & Eve, with the authority and consent of the defendant company so to do, executed and delivered a written certificate of fire insurance upon said policy to the- said Luke & Fleming, the insured as aforesaid, said certificate of insurance being in words and figures as follows, to wit: ‘No. 506. Certificate of Fire Insurance. $2,000. Augusta, Ga., Oct. 26, 1915. This certifies that Luke and Fleming have with Northwestern National Ins. Co. under Policy No. 506 entry- to the amount of two thousand dollars on cotton in bales, while contained in the rear of the one-story brick metal-roof building situated on the east side of Eighth street, No. 116, in Augusta, Ga., and known as Block No. 1, sheet No. 16, terminating 25th day of September, 1916, at noon. Loss, if any, in conformity with the conditions of said policy, to be adjusted with-and payable to assured or order only on presentation of and surrender of this certificate. Not valid until countersigned by the authorized agent at Augusta, Georgia. Countersigned at Augusta, Ga., this 26th day of October, 1915. Timberlake and Eve, General "Insurance Agents, Augusta, 6a. (Signed) Timberlake & Eve, Agents. (Endorsed on back, 'Luke & Fleming*.)*

“4. Petitioner alleges that at and before the time the aforesaid certificate of insurance was issued, it was the universal practice of fire-insurance companies in Augusta, Georgia, including the defendant company, writing policies of fire insurance for cotton factors upon cotton held or stored in said city of Augusta by them, to issue to the insured, at their request, upon valid and subsisting policies of fire insurance, certificates of insurance in substance substantially like that certificate set out in paragraph 3 hereof, the purpose and intent of both insurer and insured in issuing and accepting such certificates of insurance being that such certificate of insurance should stand for and in lieu of the policy upon which it was issued, and might be pledged, transferred, and assigned by indorsement and delivery. -It was furthermore the universal practice with respect to such certificates of insurance that no valid or subsisting policy of insurance upon which a certificate of -insurance was issued and outstanding would be accepted for cancellation, or cancelled by the insurance company issuing the same, nor settlement thereof made with or for the insured therein, without the surrender to the insurance company of the outstanding certificate of insurance by or for the legal holder thereof; which said customs became and were a part of the certificate of insurance issued by said defendant .company to said Luke & Fleming with a full knowledge of said customs.

“S. Petitioner alleges that on the 26th day of October, 1915, the said Luke & Fleming assigned and transferred, by their written endorsement, and delivered the aforesaid certificate of fire insurance to it as collateral security, for an indebtedness of said Luke & Fleming to petitioner amounting to twenty thousand ($20,000) dollars.

“6. Petitioner shows that on March 22, 1916, there was contained and stored in the premises described in said certificate of fire insurance six hundred' and ninety-six (696) bales of cotton, insured by the defendant company by its fire-insurance policy aforesaid against loss or damage by fire to the amount of two thousand ($2,000) dollars.

“7. That all of said cotton was totally destroyed by fire on the 22d day of March, 1916, and wa§ then of the value of forty-one thousand, eight hundred ninety-four and 93/100 ($41,894.93) dollars.

“8. Petitioner avers that at the time of the destruction by fire of the cotton aforesaid, and while petitioner was the legal holder of said certificate of fire insurance as collateral security as aforesaid, the said Luke & Fleming were indebted to it in a sum in excess of two thousand ($2,000) dollars upon the original indebtedness, which said certificate of insurance was transferred to it to secure, and that the indebtedness of said Luke & Fleming to petitioner, upon said original debt is still, at the time of bringing this suit, in excess of said sum of two thousand ($2,000) dollars.

“9. Petitioner shows that due notice of said loss, with proofs of the same in accordance with the requirements of the aforesaid policy of fire insurance, were duly furnished to said defendant company on May 9th, 1916, by said Luke & Fleming on behalf of petitioner.

“10. Petitioner shows that on the 22d day of August, 1916, it gave written notice to the defendant company that it then was the legal holder of said certificate of insurance, and that it was entitled to be paid the amount stipulated in said policy of fire insurance, to wit: the sum of two thousand ($2,000) dollars, and accordingly demanded payment by the defendant company to it of said sum.

“11. Petitioner avers that the original policy of fire insurance issued by the defendant company as aforesaid to the said Luke & Fleming is not in its possession, custody, or control, but that the same was, by the mutual mistake of the said Luke .& Fleming, who had and held the same, and Timberlake & Eve, defendant’s agents, delivered to Timberlake & Eve, at Augusta, Ga., the agents of the defendant insurance company, without the knowledge or'consent of petitioners, and while the aforesaid certificate of fire insurance was outstanding and in their lawful custody acquired by them and then being held by them in the manner and form hereinbefore alleged.

“12. That it is, for the reasons set out in the foregoing paragraph, not in the power of petitioner to attach a copy of said original policy of fire insurance to this its petition, nor to make accurate extracts therefrom wherever pertinent to this petition.

“13. ■ Petitioner shows that the defendant company was bound by the terms of said policy to pay to petitioner, as the legal holder of said certificate of insurance issued thereupon, the amount of said loss within sixty (60) days thereafter, and although sixty (60) days had elapsed said defendant has not paid the same, nor any part thereof, and still owes the same, to wit, the sum of two thousand ($2,000) dollars, and therefore petitioner brings this action.

“Wherefore, petitioner prays: First, that the defendant company be required to produce the original policy 'of fire insurance issued by it to said Luke & Fleming, upon which said certificate of fire insurance was issued as aforesaid, and have the same in court subject to petitioner’s inspection and use. Petitioner prays further that process may issue directed to the defendant company, requiring it to be and appear at the superior court of said county to be held on the third Monday in September, 1916, to answer your petitioner’s complaint.”

The amendment to the petition added merely, in an exhibit, a copy of the face of the policy of fire insurance, “including all stipulations thereof embraced in that part of said policy which precedes the signature of the company’s officers by whom said policy was executed.”

Slade & Swift, for plaintiff in error.

Callaway & Howard, contra.