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

text:
    9385.
    MAYOR & COUNCIL OF MADISON v. BEARDEN.
    1. The petition alleged that notice of claim for damages was given to the defendant municipal corporation. The defendant being chargeable with knowledge of the service upon it of this notice, and its answer to this allegation of the petition being evasive, the answer will be treated as an admission that the notice was given as alleged.
    2. The charge of the court excepted to being erroneous, the subsequent statement of ‘the court, giving the correct rule without retracting the previous incorrect instruction, did not cure the error, and a new trial necessarily results from the erroneous charge.
    Decided May 16, 1918.
    Rehearing denied July 12, 1918.
    Action for damages; from city court of Madison—Judge Anderson.. November 12, 1917.

      Williford & Lambert, for .plaintiff in error.

      E. II. George, contra.
   Harwell, J.

Mary Bearden, by her next friend, W. P. Bearden, brought suit against the Mayor and City Council of Madison for damages on account of personal injuries. The jury returned a verdict in her favor, and the city made a motion for a new trial upon the usual general grounds and certain special grounds which the court overruled, and the defendant excepts.

It is complained in the second ground of the amendment to the motion for a new trial that the plaintiff did not prove the allegations in paragraph 8 of her petition, relative to a certain notice alleged to have been given the defendant. The defendant in its answer, in reply 'to paragraph 8 of the petition, admits that “it has refused to pay plaintiff the demands made upon it in this matter; however, defendant, for want of information at this time, is unable to either admit or deny the allegations in said paragraph as 'to whether plaintiff’s claim was presented and given to defendant as is required by law.” While it is necessary to aver and prove that notice to the city was given as required in section 910 of the Political Code of 1910 (City Council of Augusta v. Marks, 124 Ga. 365 (4), 52 S. E. 539), it is also true that whether the notice was or was not served upon the defendant was a matter with which it was charged with knowledge, and its answer was obviously pvasive. The evasive answer will be treated as an admission that the notice was given as alleged. Civil Code, § 5637; Gaynor v. Travelers Ins. Co., 12 Ga. App. 601 (2), (77 S. E. 1072); Branch v. Johnson, 9 Ga. App. 699 (2), 700 (71 S. E. 1123); Jones v. Pope, 7 Ga. App. 538, 540 (67 S. E. 280); Raleigh &c. Railroad Co. v. Pullman Co., 122 Ga. 700, 707 (50 S. E. 1008); Horne v. Peacock, 122 Ga. 45 (49 S. E. 722).

Ground 4 of the motion for a new trial complains of the following excerpt from the charge of the court: “You can go further and ascertain whether or not the plaintiff in this case used'proper care and diligence, or was guilty of negligence that caused the injury. - In passing upon this question you may take into consideration the age and experience, or inexperience, of the plaintiff, and should you find that the plaintiff was too young and inexperienced in such things as to require her to use such care and diligence that would be required for a person of more mature years, and you find that she had not reached the age where she would be required to use the care and diligence of a 'more mature person in ascertaining the dangerous condition of the wire, then I charge you that you would be authorized to find in her .favor.” Error is assigned upon this, upon the ground that the court told the jury that they should find in favor of the plaintiff, should they find that the plaintiff had not reached such age as to require her to use care and diligence; and that the court should have charged further that the city would not be liable unless it was shown that the city had not used proper care and diligence to prevent the injury, regardless of whether the plaintiff had reached mature age or not. We think that the criticism was well taken, and that the charge was erroneous for the reasons stated. It is insisted however, that the court afterward, at the conclusion of the charge, corrected the error by charging, "If you find that this plaintiff has not reached the age of maturity where she could realize or detect the danger and she was injured, if she was injured, and her injury was not creditable to any negligence on the part of the city or its employees, she could n'ot recover.”

"Where an erroneous instruction is given on a material issue, the error is not rendered harmless by-a subsequent statement of the judge giving the correct rule in another part of his charge. He must make it plain and clear to the jury that the first instruction was incorrect and is expressly retracted, and that the subsequent statement is correct and is substituted for the incorrect one; and it must appear therefore that the jury could not have been mislead or confused by the two inconsistent statements.” Pelham Mfg. Co., v. Powell, 6 Ga. App 308 (4) (64 S. E. 1116). new trial necessarily results from the erroneous charge. See also Savannah Electric Co. v. McClelland, 128 Ga. 87 (57 S. E. 91); Morris v. Warlick 118 Ga. 421 (45 S. E. 407); Rowe v. Spencer, 132 Ga. 426 (64 S. E. 468); Atlanta & Birmingham Air-Line Railway v. McManus, 1 Ga. App. 302 (5 a) (58 S. E. 258); A. C. L. R. Co. v. Canty, 12 Ga. App. 411 (2), 415 (77 S. E. 659), and citations.

It is not necessary to pass upon the other grounds of the motion. If any other errors were committed, they will not likely 'occur upon another trial. The court erred in overruling the motion, and the judgment is

Reversed.

Bloodworth, J., concurs.

Broyles,'P. J.,

concurring specially. I agree that the'judgment of the lower court overruling’ the motion for a new trial should be reversed, but not for the reason stated in the opinion of the majority of this court. I do not think that the error in the excerpt from the charge, as complained of in the 4th special ground of the motion for a new trial, requires a new trial, as, in my opinion, this error was cured by the supplemental charge, in which the correct rule of law was so plainly stated that I do not see how the error in the preceding charge could have misled the jury.

The plaintiff sued for general damages, and for pain and suffering. The petition did not claim any special damages, and none were proved. Under such circumstances, it was, in my opinion, erroneous for the judge to charge upon the subject of special damages, and I think it is probable that this charge confused and misled the jury. For this reason I agree with my colleagues that a new trial of .the ease is required.


source: Caselaw Access Project

author: Bloodwobth, J.

license: Public Domain

text:
    9399.
    Estes v. Davies.
    Decided May 16, 1918.
    Motion to set aside judgment; from Fayette superior court-judge Searcy. November 3, 1917.

      ■ H. A. Allen, J. W. Culpepper, for plaintiff in error..

      W. B. Hollingsworth, contra.
   Bloodwobth, J.

It appearing from the record in this case that the petition to set aside the judgment of the superior court was filed in vacation, the trial judge erred in overruling the motion to dismiss the petition on that ground. “A judge of the superior cqurt has no authority to entertain a motion made in vacation to set aside a judgment of that court.” Haskens v. State, 114 Ga. 837 (40 S. E. 997); Chapman v. State, 116 Ga. 598 (42 S. E. 999); Malsby v. Studstill, 127 Ga. 726, 728 (56 S. E. 988); Gillespie v. Farkas, 19 Ga. App. 158 (3) (91 S. E. 244).

Judgment reversed.

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


author: Harwell, J.

text:
    9403.
    DANIEL, administrator, v. JOHNSON et al.

    The question as to the title to the property levied upon was one of fact for the jury, who returned a verdict in favor of the claimant. The verdict was authorized by the evidence and approved by the trial judge, and this court will not interfere.
    Decided May 16, 1918.
    Claim; from city court of LaGrange—Judge Moon. November 3, 1917.

      M. U: Mooty, for plaintiff. B. A. Jones,-contra.
   Harwell, J.

An execution in favor of W. K. Daniel, administrator, against G. W. Tatum, was levied on “40 acres in cotton, . . .15 acres in corn,” two mules, a wagon, and other personal property, as the property of the defendant, and a claim to the property was filed by C. W. Johnson. On the trial of the ease the claimant testified, that he owned the land and stock and everything- used on the farm, and furnished the rations and all the supplies used on the farm” in' making the corn and cotton levied'on, and Elijah and Clarence Tatum worked the farm for him under a verbal contract that it all belonged to him until payment of all that they owed him; that the defendant G. W. Tatum had nothing to do with it; that the claimant bought and owned the two mules and the wagon levied on, and that they were in the possession of Clarence and-, Elijah Tatum, and belonged to the claimant at the time of the levy. He further testified: “I bought the land G. W. Tatum lives on from him; that is, he bought the land and couldn’t pay for it and I took up the papers on it. I got the deed from George Tatum, and he got it from Mrs. Dora Hudson, and I paid the money off to her. She deeded it to G. W. Tatum and- he deeded it to me to secure the purchase-money.. I gave him a bond for title.” The bond for title was introduced in evidence, and showed a transfer from G. W. Tatum to C. W. Johnson, reciting: “I hereby transfer, assign, and relinquish, all of my rights and interest in said lands for which this bond is given.” Johnson further testified: “I changed my account in 1915 from George Tatum to' his children [Clarence and Elijah], because his boys were dissatisfied with the way their father was managing and working the farm, and they thought they could make more stuff to manage -it than he could; and I told them it would be perfectly all right, that all they had to do was to carry out their daddy’s contract.” The levy, being on corn and cotton in the field, and being dated October 6, 1916, was evidently on the 1916 crop. The plaintiff offered ño evidence, and no other witness than the claimant testified in the case. The bond for title, with the transfer thereon, was the only documentary evidence introduced. 'The jury returned a verdict finding the property not subject. A motion for a new trial, based on the usual general grounds, was overruled, and fhe plaintiff excepted.

It is not necessary to add anything further to what is stated in the headnote.

Judgment affirmed.

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


author: Luke, J.

text:
    9066.
    Garrett v. Fields.
    Decided May 17, 1918.
    Claim; from city court of Albany—Judge Clayton Jones. .June 22, 1917. ’

      L. L. Ford, for plaintiff in error.

      W. H. Burt, Peacock & Gardner, contra.
   Luke, J.

1. Property mortgaged may be sold under a general ■ judgment .

junior to the mortgage; and such a sale will be subject to the lien of the mortgage, unless the mortgagee shall place his mortgage fi. fa. in the hands of the officer making the sale, and request that the property be sold free and unencumbered from the lien of the mortgage, and claim the proceeds of the side, according to the date of his lien. Civil Code (1910), § 3274.

2. In this ease it is undisputed. that before and at the time of sale of the property the attorney for the mortgagee gave. all prospective and actual bidders upon the property, which was being sold under a junior general judgment, public notice that the property was being sold subject to the lien of a senior mortgage fi. fa. which he held. The purchaser at the sale acquired only the equity of ‘ redemption held by the defendant in the junior fi. fa.; and upon the trial of a claim interposed by the purchaser of the property, it was not error for the trial judge, who tried the case without a jury, to render judgment finding the property subject to the mortgage fi. fa.

Judgment affirmed.

Wade, 0. J.,'and Jenkins, J., concur.


text:
    9099.
    BURNS v. CITY OF ATLANTA.
    The court did not err in directing a verdict for the city, or in thereafter refusing to grant' a new trial.
    Decided May 17, 1918.
    Affidavit of illegality of execution; from Fulton superior court —Judge Ellis. June 30., 1917.

      Robert 0. & Philip PL. Alston, F. P. Burns, Moise & Riddell, for plaintiff in error.

      J. L. Mayson, S. D. Hewlett, contra.
   Luke, J.

The City of Atlanta issued an execution against E. P. Burns for his proportionate cost of paving the street on which his property abutted. Upon the levy of the fi. fa. on his property he filed an affidavit of illegality, which was subsequently amended’. On the trial of the ease the court, at the conclusion of the evidence offered by both parties, directed a verdict in favor of the city: a motion for a-,new trial was overruled, and Burns excepted.

1. There is no merit in those grounds of the motion for a new trial which complain of the refusal of the court to direct a verdict .for the movant. Eefusal to direct a verdict is never error.

3. The remaining special ground of the motion for a new trial complains of the direction of a verdict for the city: (1) because of fraud in the passage of the second ordinance for the paving of the street in question; (3)' because of fraud in the making of the second contract for the paving of the street; and (3) because the evidence showed that no new petition was filed by the abutting-property owners after the passage of the first ordinance for the paving of the street; the paving being done under a subsequent ordinance. As to thp charges of fraud, there were no specific facts in the evidence to sustain them. As to the third point, the record shows there was only-a lapse of a few days between the repeal of the first ordinance and the passage and approval of the second one; that the same street to be paved under the first ordinance was to be paved finder the second one; that the property owners had petitioned the city to do this work and that it had been properly done; that there was substantially no difference between tlie original contract under the first ordinance arid the amended contract under the second one; that the cost of the paving was' less than the estimate, and the minimum difference in the cost of the pavement per front foot was not. appreciable; that under the original contract the cost would have been $3,116 per front foot, and that under the second contract it was $3.373; that the second ordinance was published as required by law, and that the defendant in execution had the required notice that this ordinance was pending before council, and had an opportunity to appear'before that body and make his objections, if he had any; which he failed to do. Moreover, it is clear that this is an attack upon the increased cost of the paving to him over what it would have been under the original ordinance, ánd hence a direct attack upon the amount of the assessment. It follows by necessary implication' that some amount of the assessment which is not illegal is due; and he has no standing in court until that amount is paid by him. Hardwick v. Dalton, 140 Ga. 633 (79 S. E. 553). This is true although the affidavit of illegality'expressly states that the affiant insists that he owes the. city nothing. Hardwick v. Dalton, supra. In the instant case there is no proof that any amount whatever was paid or tendered to the city.

It was insisted that the petition for the paving of the street was not authority for the second ordinance, which was passed shortly after the repealing of the original ordinance. In our opinion there is nothing in this point. The charter of the City of Atlanta provides simply for a petition. There is no limitation of time within which the petition shall be gotten up or filed, nor is it provided how long the petition shall remain of file before it ceases to be in effect. The charter simply provides that when a petition is filed, signed by property owners representing the necessary percentage of the total feet of frontage abutting on the street desired to be paved, the city may pass a paving ordinance. Where a petition for the paving of a street is signed by the owners of the proper percentage of the abutting property, and an ordinance for the paving is passed, but is subsequently repealed, and, within a few days thereafter, a second ordinance for the paving is passed, it is unnecessary to have 'a new petition signed by the property owners, but the old petition will support the second paving' ordinance. Furthermore, the evidence here discloses that the defendant in execution received the benefit of the paving, and that he stood by and saw the work being done ánd made no objections of any kind while it was in progress. He was, therefore, under numerous rulings of the Supreme Court and of this court, estopped from thereafter setting up, by affidavit of illegality, irregularities in the passage of the 'paving ordinance or in any of the necessary preliminaries theretq.

From what has been said it follows that the.court did not err in directing a. verdict for the city, or in thereafter., refusing to grant a new trial.

Judgment affirmed.

Wade, 0. J., and Jenlcins, Jconcur.


author: Wade, C. J.

text:
    9112.
    City of Thomasville v. Crowell.
   Wade, C. J.

1. There was evidence to support the verdict.

(a) There was testimony from which the jury were authorized to infer that the hole in the sidewalk which brought about the injury to the plaintiff was within the corporate limits, of the municipality, .and any conflict in the evidence on this point was settled by their verdict. The-testimony as to long use as a street by the public, and the general repute as to the location of the mile-post which marked the corporate boundary, was adequate, in the absence of any definite evidence' to the contrary, .precisely establishing, the actual location of the corporate boundary.

(6) The testimony of a party who offers himself as a witness in his own behalf must be construed most strongly against him,' if it be self-contradictory, vague, or equivocal; and unless there be other evidence tending to establish his right to recover, he is not entitled to a finding in his favor if the version of his testimony most unfavorable to his case shows that the verdict should be against him. Southern Ry. Co. v. Hobbs, 121 Ga. 428 (49 S. E. 294). See also Steele v. Central Ry. Co., 123 Ga. 237 (51 S. E. 438). However, “if the plaintiff introduce other witnesses whose testimony is sufficient to establish the allegations of the petition,” he may nevertheless prevail. Ray v. Green, 113 Ga. 920 (2) (39 S. E. 470). The testimony of the plaintiff in this case, construed most strongly against him, if uncertain or'negative, did not expressly conflict with other testimony offered by him which tended affirmatively to prove that the defect in the sidewalk which caused his injury was within the corporate limits of the city. The case of Meinhard-Ferst-Doyle Co. v. DeLoach, 19 Ga. App. 323, 327 (91 S. E. 446), is not in point, as the testimony of the plaintiff was not directly “adverse” to his interest.

2. The 5th ground of the motion for a new trial, which complains of the 'admission of certain testimony of the plaintiff’s witness Stevens, is without substantial merit; for, aside from the question as to its admissibility, there was other testimony to the'same, general effect which appears not to have -been objected to, and therefore its admission is not ground for reversal. Besides, this part of the testimony of Stevens (the admission of all of which is complained of in this-ground of the motion), to the effect that he had built certain sidewalks by the direction of the mayor and council, was competent as tending to show that the city exercised control over this particular sidewalk, or that the place in question was used and recognized as a street by the city, authorities. See, in this connection, City of Dalton v. Humphries, 139 Ga. 556 (3) (77 S. E. 790), and Mayor &c. of Americus v. Johnson, 2 Ga. App. 378 (4) (58 S. E. 518).

3. The court did not err in declining to give a requested written instruction which included a statement to the effect that if the jury should find that the plaintiff had full knowledge of the existence of the alleged defect in the sidewalk, but nevertheless endeavored to pass over it when there was no emergency requiring him to do so, he could not recover, notwithstanding he stepped or stumbled in the hole, or was unable to step across it, or misjudged the distance across it, and thereby fell and was injured, as the law in such a case would treat his- voluntary act as the cause of the injury. There was no testimony from any source that the plaintiff had actual knowledge of the existence of th¿ hole, and he expressly testified to the contrary, and the request as submitted was not precisely adjusted to the evidence. Furthermore, the request did not suggest for the consideration of the jury whether or not, even if the plaintiff had knowledge of the existence of the hole, he was under • all the circumstances in the exercise of ordinary care in attempting to step over or across it. Besides, the judge in his charge had substantially covered the issues suggested by the requested charge, and he was not required to repeat the instruction already given.

Decided May 17, 1918.

Rehearing denied July 9, 1918.

Action for damages; from city court of Thomasville—Judge W. H. Hammond. July 19, 1917.

Clifford E. Hay, for plaintiff in error.

Titus, Dekle & Hopkins, contra.

4. The photographs admitted in evidence over objection were not irrele-' vant or inadmissible for the reason that they did not show the facts existing at the time of the injury. While, under the testimony, both the hole and the ditch may have been somewhat deeper than at the time of the injury, there was no such change in the surroundings at the point where the injury occurred as required the exclusion of this testimony.

' 5. The excerpt from the charge complained of in the second amendment to the motion for a new trial is not subject' to the various objections •insisted upon. The court distinctly instructed the jury that liability attached only as to sidewalks within the limits of the municipality, which had been opened up or constructed by its authority, or control over which had been assumed, by the municipality prior to the time of the plaintiff’s alleged injury. This instruction did not authorize a recovery in the event the jury found that the place of the injury was without the corporate limits of the city, and is not subject to any of the specific objections urged, but, construed in connection with the entire charge, was adapted to the facts and law of the casé.

6. In the brief of counsel for the plaintiff in error it is urged for the first time that one issue raised by the pleadings was as to the service of notice on the defendant of the claim of the plaintiff 30 days before filing suit, and that the brief of evidence disclosed no testimony upon this issue. The brief of evidence contains the following statement: “Plaintiff also put in evidence the notice hereto attached, together with the affidavit as to service indorsed thereon.” The notice, with an affidavit attached showing service upon the city,' appears in the record. It does not further appear that any objection whatever to this method of proving the service of the notice or as to the sufficiency of the notice itself, was presented in the court below, and therefore this ground of the motion can not be considered here.

7. No error appears in the refusal to grant the ’motion for a new trial, and this court is not vested with discretion to set aside verdicts supported by some evidence, even if, as contended by the plaintiff in error, that evidence be weak and unsatisfactory. There was evidence in this ease, accepted by the jury as true, sufficient to support the verdict; and this verdict has been approved by the trial judge.

Judgment affirmed.

Jenhins and Luke, JJ., concur.


author: Jenkins, J.

text:
    9113.
    Bradley v. Duggar.
    Decided May 17, 1918.
    Action of trespass; from Bryan superior court—Judge Sheppard. July 9, 1917.

      J. P. Pulses, Hines & Jordan, for plaintiff in error.

      George H. Richter, contra.
   Jenkins, J.

1. Where the verdict can be supported under any proper view or theory of the evidence, it will not be set aside as being contrary thereto. There was evidence sufficient to support the finding that the timber was unlawfully taken, and there was evidence, admitted without objection, as to its value, which authorizes the finding as to the amount of the injury sustained.

2. The defense set up by way of recoupment, whereby the defendant sought to recover the expenses alleged to have been incurred in guarding the skidder, by reason of the alleged previous words, acts, and threats of the plaintiff, should not have been limited by the charge to proof of his , previous acts; and for this reason the motion for a new trial should have been granted.

Judgment reversed.

Wade, O. J., and Lulce, J., concur.


text:
    9131.
    WILLIAMS v. CENTRAL OF GEORGIA RAILWAY CO.
    1. In a suit against a railway company for damages on account of the negligent killing of stock the plaintiff must allege and, unless it be admitted by the pleadings, prove his ownership of the stock. South Georgia Ry. Co. v. Ryals, 123 Ga. 330 (51 S. E. 428) ; Georgia Railway & Electric Go. v. Knight, 122 Ga. 290 (50 8. E. 124) ; Central Railroad Co. v. Bryant, 89 Ga. 457 (4) (15 S. E. 537).
    '2. The question of identity or'of ownership is one of fact, to be submitted to the jury, under -the evidence and the admissions made by the pleadings;' and in this case there was no such failure of proof in this respect as to warrant a nonsuit. Greene v. Barnwell, 11 Ga. 282'(2).
    Decided May 17, 1918.
    Action for damages; from city court of Greenville—Judge Rev-ill. July 19, 1917. *

      Hatchett & Hatchett, for plaintiff.

      Battle & Hollis, McLaughlin & Jones, for defendant.
   Jenkins, J.

This suit was for damages on account of the killing of a mule, alleged to have been caused fey negligence on the part of the railway company in the running of a train. The fourth paragraph of the petition is as follows: “Plaintiff avers that on the — day of October, 1916, he was the owner of a certain black mare mule, about twelve years old, of the value of one hundred and twenty-five dollars.” This paragraph the defendant denied. In the fifth paragraph 'of the petition it is alleged that “on the day and date aforesaid, said mule went upon and down the track at a point between the depot of defendant in Greenville, Georgia, and a cut just south of said depot, at or near where a spur-track of defendant company leads off from the main track in an easterly direction and about two hundred yards south of said depot in said city of Greenville.” This paragraph is admitted in the defendant’s answer, and by way of further answer it says that on the day and at the place on its tracks alleged in the petition, the engine of its train did strike and kill a mule, but denies that its agents and employees were negligent, and denies that it is liable for the killing of said mule. On the trial of the case the only evidence introduced was the testimony of the plaintiff himself. He testified: “I lost a certain black mare mule about twelve years old. . . I started towards Greenville, hunting for her. . .. Just as I got into Greenville, .near the cotton-oil mill, I discovered some mule tracks upon a spur-track of the defendant’s line of railroads. These tracks were the tracks of a small-footed mule, and bare-footed tracks. The mule that I lost had small feet and was bare-footed. . . My mule’s track had no particular or peculiar mark about it to distinguish it. The mule tracks I found and testified about had no peculiarities about them, and I can not say that they were the tracks of my mule.” It is thus seen that the defendant, by its pleadings, admits that the mule described in the petition and referred to in the plaintiff’s testimony did go upon the tracks at the time and place alleged, and was killed by the operation of its trains; and while the defendant in its answer denies that this mule belonged to the plaintiff, still in his testimony he refers to the mule thus lost by him as “my mule”; and we think that the admissions made by the answer, together with the testimony of the plaintiff, were sufficient to have required the submission of the question as to the identity and ownership of the property to the jury.

Judgment reversed.

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


text:
    9138.
    Echols v. Roberts & Longino.
    Decided May 17, 1918.
    Complaint; from city court of LaGrange—Judge Harwell. July 7, 1917.

      M. TJ. Mooty, for plaintiff in'error.

      Hall & Jones, Boyd A. Lovvorn, contra.
   Jenkins, J.

1. Where a demurrer is sustained, an assignment of error stating that “to the order sustaining said demurrer and striking said answer, the defendant [naming her] then and there excepted, now excepts, and assigns the same as error” is sufficiently definite, where the demurrer itself appears in the record. Toomey v. Read, 133 Ga. 855 (67 S. E. 100); McGregor v. Third National Bank, 124 Ga. 557 (53 S. E. 93); Walker V. Crummey, 18 Ga. App. 414 (89 S. E. 539); Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (94 S. E. 892, 893). The motion to dismiss the hill of exceptions is therefore overruled.

2. Where the defendant is served, and appears and pleads in the original suit, she can not in any case or under any circumstances inquire into the merits of the original judgment, on a writ to revive the judgment. On the general principle of res adjudicata, the defendant is absolutely precluded from going behind the judgment and offering in defense to the scire facias any matter which existed before the rendition of the original judgment and which might have been' presented in the former proceeding. Weaver v. Webb, 3 Ga. App. 726 (60 S. E. 367). The court therefore did hot err in sustaining the demurrer and striking the defendant’s answer.

Judgment affirmed.

Wade, O. J., and LuJÉe, J., concur.


text:
    9194.
    LAND TRUST COMPANY v. MORGAN.
    Where land is bargained by the tract, a deficiency in feet can not be apportioned unless the purchaser can show that the transaction was tainted with actual fraud of the seller.
    Decided May 17, 1918.
    Complaint; from Fulton superior court—Judge Pendleton., June 31, 1917.

      C. L. Pettigrew, for plaintiff. W. 0. Wilson, for defendant.
   Wade, C. J.

Joseph H. Morgan sold a tract of land to the Land Trust Company for $2,250, and executed to the company a bond for title, wherein the land conveyed was described as follows: “A certain tract or parcel of land, lying and being in the city of Atlanta and described as commencing on the north side of Hudnicutt street at a point ninety-three (93) feet west of Williams street and extending north along lot No. Eight (8) ninety-two (92) feet; thence west along lots Nos. Ten and Fifteen (10 & 15) ninety-three (93) feet; then south along lot No. Seventeen (17) ninety-two (92) feet to Hunnieutt street; thence-east along Hun-: nieutt street ninety-three (93) feet to the beginning point, the saíne being lots Nos. Nine and Sixteen as per plat showing the subdivision of the H. C. Thurman property by Eice & Wilson; said lots being a part of land lot No. 79 in the 14th district of Fulton county, Georgia.” The vendee paid all of the purchase-money except a small balance. Its petition against the vendor- alleged, besides the foregoing facts, that it received 13 per cent, less land than was contracted for, since an actual survey of the tract sold disclosed that the land was only 79 feet deep, whereas the bond for title fixed the depth at 92 feet; that by reason of this shortage in depth there was a breach of the bond in the sum of $319.50, for which amount judgment was prayed. At the conclusion of the evidence for both sides, the court directed a verdict for the defendant. The plaintiff excepts to the overruling of its motion for a new trial, assigning error on tha. direction of the verdict.

Section 4122 of the Civil Code, provides: “In a sale of lands, if the purchase is per acre, a deficiency in the number of acres may be apportioned in the price. If the sale is by the tract' or entire body, a deficiency in the quantity sold can not be apportioned,” etc. It is obvious, therefore, that the controlling question presented by the record in this case is: Does the description of the land- contained in the bond for title indicate a sale by the tract, or a sale by the number of feet? Hnder numerous decisions of the Supreme Court and of this court, some of .which are- hereinafter briefly referred to, this query is answered in favor of a sale by the tract rather than a sale by feet. That section was not taken from a legislative enactment. One of the earliest cases on the subject is that of Beall v. Berkhalter, 26 Ga. 564 (decided in 1858, before the codification of the laws of this State), holding that “unless the enumeration of the quantity is of the essence of the contract, and not matter of description merely, the covenant of warranty will not be broken by a deficiency in the quantity of land conveyed.” The number of feet mentioned in the contract of sale tinder review* was merely matter of description, and not of the essence of the contract. In Finney v. Morris, 116 Ga. 758 (42 S. E. 1020), it was held: “Where land is sold by the tract and described in the conveyance as so many acres, ‘more or less/ a deficiency in the number of acres actually conveyed to the purchaser will not authorize an apportionment in the price agreed to be paid, if the purchaser admits that there was no intentional fraud upon’the part of the vendor.” In' the case under consideration no fraud was alleged or proved. The case of Kendall v. Wells, 126 Ga. 343 (55 S. E. 41), seems to be on all fours with the case before us. The first headnote of the decision in that case is as follows: “A deed based upon the express consideration of $371 described the land conveyed as follows: ‘A certain tract of land in the 8th land district of Colquitt county, Ga., known and described in the plan of said 8th district as part of west half of land lot No. 85 containing fifty (50) acres in the southwest corner of.said lot 85, and bounded as follows, to wit: commencing on the south line of said lot 85, on the west side of Georgia Northern Railway Co. railroad and 100 feet from the center of the railroad track, and running west 34 chains along said land line to the southwest cor.ner of said lot 85, thence north^along west land line said lot 85 ■13 chains to stake, thence east 25 chains to within one hundred feet Ga. Northern Ry. track to a stake, thence south along said right of way to place of commencing/ Held, that this was a conveyance of land by the tract and not by the acre.” See also Willams v. Smith, 135 Ga. 335 (69 S. E. 480); Goette v. Sutton, 128 Ga. 179 (57 S. E. 308); Montgomery v. Robertson, 134 Ga. 66 (67 S. E. 431); White v. Adams, 7 Ga. App. 764 (68 S. E. 271); Parker v. Roberts, 19 Ga. App. 270 (91 S. E. 345). It will be observed, from the decisions cited, that the difficulty arises in determining whether or not the sale is by the tract or by the acre or feet. If the sale is intended to be in gross the authorities are unanimous in holding that the mere mention of acres, or of feet (as in the case under consideration), after certain other description, such as metes and bounds, is not a covenant as to the quantity to be conveyed. The statements in the bond for title as to feet must therefore be treated as mere matter of description, and not as of the essence of the contract, and the purchaser took the risk of the quantity, as there is, according to the record, no intermixture of fraud.

By reference to the description of the land in the bond for title, quoted above, it will be seen that the tract was described as being bounded by certain named lands or land lots. It is well settled that where a deed refers to well-defined boundaries, the boundaries or monuments must prevail, regardless of whatever else- the deed may contain as to course and distances. In Harris v. Hull, 70 Ga. 831, it was held: “Courses and distances and computed contents yield to ascertained boundaries and monuments.” Likewise, in Ford v. Williams, 73 Ga. 106, it was held: “Where lines and courses of an adjoining tract are called for as a boundary in a deed or grant, the lines of such deed or grant will be extended to them without regard to distances, provided these lines and courses are sufficiently established.” See also in this connection, Leverett v. Bullard, 121 Ga. 534 (2) (49 S. E. 591). In the case of Georgia R. Co. v. Hamilton, 59 Ga. 171, it was held: “Where a deed referring to a plat annexed thereto shows that the land conveyed was bounded on one side by a street, and on the other by the right of way of the plaintiff, the land conveyed by the plaintiff to the defendant in such deed,a prima facie extends only from the street to the right of way, though the plat had five hundred feet written thereon as the- distance from the street to the right of way, and though the distance between the two points was less than five hundred feet.” An inspection of that case shows that it is quite similar to the case now before us in the following particulars: that the controversy was between the parties to the original transaction; that the lot was sold according to a plat; that the distance of the line was marked on the plat, and that the distance between certain points was less than that called for in the conveyance. The decision in that case has never been overruled, modified, or criticised. We hold, therefore, that the sale in the instant case was bv the tract or in gross, and not by the acre or feet, and consequently that the deficiency in' feet could not be apportioned.

Judgment affvrmed.

Jenkins and Luke, JJ., concur.


text:
    9200.
    Busby & Son v. Elliott.
   Jenkins, J.

1. An affidavit upon which an attachment is based is amendable to the same extent as ordinary declarations, and with only the restrictions, limitations, and consequences now obtaining in the case of ordinary declarations and pleas (Civil Code of 1910, § 5706; Penn v. McGhee, 6 Ga. App. 631, 65 S. E. 686) ; but since a suit brought by one in his individual name can not be changed into a suit in the name of a partnership (Blackwell v. Pennington, 66 Ga. 240), the .court did not err in refusing to allow the proposed amendment to the affidavit and attachment bond, to the effect that the indebtedness was due to A. W. Busby & Son, a partnership, instead of to A. W. Busby, as alleged in the original affidavit and bond.

Decided May 17, 1918.

Complaint; from city court of Floyd county—-Judge Nunnally. September 7, 1917.

Harris & Harris, for plaintiffs. IF. B. Mebane, for defendant.

2. An attachment proceeding instituted by affidavit in the name of an individual will not support a declaration brought in the name of a partnership (Sheffield v. Key, 14 Ga. 537), unless the variance has been waived by the defendant; but where the defendant has made a replevy bond payable to the partnership, and conditioned to pay to it the amount of the judgment which the partnership in its suit may recover, the defendant is estopped from setting up such variance, and the action thus brought will proceed as at common law, although the attachment itself and the levy made thereunder be dismissed. Civil Code (1910), §§ 5121, 5103; Camp v. Cahn, 53 Ga. 558; Buice v. Lowman Mining Co., 64 Ga. 769; Walter v. Kierstead, 74 Ga. 18; Mayer v. Brooks, 74 Ga. 526; Woodbridge v. Drought, 118 Ga. 671 (45 S. E. 266); Duke v. Automobile Supply Co., 21 Ga. App. 608 (94 S. E. 915); Cowart v. Caldwell Co., 134 Ga. 544 (3), 550 (68 S. E. 500, 30 L. R. A. (N. S.) 720). The court erred in dismissing the declaration in attachment.

Judgment reversed m part, and affirmed in part.

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


author: JENKINS, J.

text:
    9206.
    Hopson v. Stuart Lumber Company.
   JENKINS, J.

The plaintiff in error sued for damages for the -cutting of ' timber on land in which she claimed a tenth interest by inheritance from her father, alleging,' that he bought the land and Went into possession of it under a duly-recorded deed, and remained in possession more than four years after the rendition of the judgment against his grantor under which the land was afterwards levied upon and sold; that the levy was excessive, and that at the time of the levy, the fi. fa. was dormant. Held:

1. While it is recited in the record of the sheriff’s deed to the defendant’s grantor that the levy was made November 19, 1897, it is manifest that this recital was merely a clerical error, since it appears that the deed was actually recorded on a date prior thereto, and a claim under this levy was filed on January 2, 1892. Certainly,' under such circumstances, evidence on' the part of 'the sheriff that the levy was in fact made November 19, 1891, was not incompetent. Hilton v. Singletary, 107 Ga. 821 (2) (33 S. E. 715). It thus appears .that the plaintiff’s grantor could not have been in possession of the land for as long as four years prior to the levy under the prior judgment, and that the judgment was not then dormant. " .

Decided May 17, 1918.

Action of trespass; from Decatur superior court—Judge Harrell. August 25, 1917.

W. V. Custer, for plaintiff.

P.ope & Bennet, M. B. O’Neal, for defendant.

2. Even if the point made in the .brief of counsel,- to the effect that it was not established that legal notice of the levy was given by the sheriff, had been made in the court below, and exception taken on that ground, the presumption of law that the sheriff did - his duty in this respect is corroborated by his testimony given on this point, and by the fact that the tenant in possession at the time the levy was made filed her-claim in which the fact of such levy was set forth. “The requirement of Civil Code (1910), § 6031, that notice of the levy shall be given to the tenant in possession within five days after the levy is made, does not contemplate that the entry of levy must itself state that notice has been given, in order to render it valid.” Keaton v. Farkas, 136 Ga. 188 (70 S. E. 1110).

3. The record fails to sustain the contention of plaintiff that the sheriff’s sale under which defendant holds was void for the reason that the levy therein was excessive. It in fact appears from the entry of the sheriff that the levy was made in parcels, and from his evidence it appears that it was thus sold. The finding of the jury on this point can not be disturbed.

4. The. other special grounds of the motion for a new trial are not argu'ed in the brief of counsel for plaintiff. Under the evidence submitted, the verdict was demanded by the evidence.

Judgment affirmed.

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


text:
    9210.
    Southern Railway Company v. Rollins.
   Jenkins, J.

1. Neither the exemption provided by the laws of -this State, nor that provided by the laws of the State of the debtor’s residence, affords protection against process of garnishment to subject in this State wages of non-residents which have been earned within this State. Civil Code (1910), § 5095; Kile v. Montgomery, 73 Ga. 338 (3); Harvey v. Thompson, 2 Ga. App. 569 (5) (60 S. E. 11).

2. The finding of the jury upon the question, as to the debtor’s residence at the time the garnishment proceeding by attachment was instituted can not, under the evidence, though the evidence was -conflicting, be disturbed. ' '

Decided May 17, 1918.

Certiorari; from 'Whitfield superior court—Judge Tarver. September 8, 1917.

Maddox, McCamy & Shumate, James J. Copeland, for plaintiff ifi error.

3. The record does not disclose any written assignment to the plaintiff by his debtor of the latter’s* chose in action against the garnishee such as would effect an immediate change of ownership of the fund, and thus prevent recourse to the process of garnishment. The mere delivery to the plaintiff'by his debtor of certain i “time slips,” with the promise of the latter that he would “get his pay check from the railroad company and turn it over” to the plaintiff, did not constitute such a transaction as could have compelled the railroad company to pay over the fund to the plaintiff as assignee, if forbidden to do so by the person to .whom it was indebted. Reviere v. Chambliss, 120 Ga. 714, 715, (48 S. E. 122); Hargett v. McCadden, 107 Ga. 773, 774 (33 S. E. 666).

Judgment affirmed.

Wade, C. J., and Lulce, J., concur. .


text:
    9214.
    McQUEEN, guardian, v. FISHER.
    1. Without the approval of the ordinary, a contract entered'into by one as guardian of the property of his ward to pay another for the maintenance and education of the ward can not support a judgment binding the corpus of the ward’s estate. ,,
    2. Where it is admitted that there was no such order, and where the evidence fails to show that there were at any time any profits of such estate in the hands of the guardian, a verdict and judgment against all the property of the ward’s estate is illegal and can not stand.
    3. In a suit against one as guardian of the property of his ward’s estate, ' it is not error for the trial judge to strike a plea setting off a liability to the guardian individually.
    4. In such a suit, where a plea sets off a note showing on its face that it is an individual liability of the plaintiff to the guardian, but alleges that the amount represented by the note was money of the ward, and that it was loaned as such, it is not error to exclude evidence proffered to support the plea; nor is it error to refuse to admit the note in evidence, upon objection that there was no authority on the part of the guardian to make the loan of the ward’s money.
    Decided May 17, 1918.
    Complaint; from city court of Hinesville—Judge W. C. Hodges. August 27, 1917.

      Melville Price, Edwin A. Cohen, for plaintiff in error.

      O. C. Darsey, contra.
   Luke, J.

This'is a suit for $1,449 and interest, brought by Fisher against McQueen as guardian of the property of Herbert Cecil and Malcolm Johnston Moody, minor wards, upon an oral contract whereby McQueen as such guardian agreed to pay Fisher $368 per annum for the care, schooling, and maintenance of the wards, this sum representing the interest at 8% per annum on $4,600 of their money in the possession of McQueen as guardian at the date of the contract. The defendant denied the contract and all liability thereunder, and filed pleas of set-off, which are sufficiently dealt with in the headnotes. As there was no demurrer to the petition and no objection was interposed to any of the evidence adduced to prove the contract sued on, we do not deem it necessary to decide whether the contract was invalid as pleaded, and will direct our inquiry to the question whether, under the law, the evidence supports the verdict and judgment.

The Civil Code (19.10), § 3058, clearly makes it the duty of the guardian “to protect and maintain, and, according to the circumstances of the ward, to educate him.” Section 3074 is as follows: “The guardian can not borrow money and bind his ward’s property therefor; nor can he, by any contract other than those specially allowed by law, bind his ward’s property, or create any lien thereon.” This last section of the code inhibits the making by the guardian of all contracts binding the ward’s property, except those specially allowed by law. A contract such as the one on which this suit was based is not one of the excepted contracts, and is invalid, unless, as contended by the defendant, it can be sustained under sections 3058 and 3060 of the Civil Code. Section 3060 is as follows: “Every guardian shall be allowed all reasonable disbursements and expenses suitable to the circumstances of the orphan committed to his care. But the expenses of maintenance and education must not exceed the annual profits of the estate, except by the approval of the ordinary previously granted. The ordinary may, in his discretion, allow the corpus of the estate, in whole or in part, to be used for the education and maintenance of the ward.” It was neither alleged nor proved'that the ordinary at any time approved the contract. Patently, then, in no event could there be any encroachment upon the corpus of the estate:

The petition clearly declared on a contract made by the guardian in his capacity as guardian of the property of his wards. The verdict was: “We, the jury, find for plaintiff $1,449.00 .as principal and $169.05 as interest.” The court rendered a j'udgment against N McQueen “as guardian of his wards” for “the above-stated sums . . , to be levied on the goods, chattels, lands and tenements of said N. McQueen as guardian of said wards, or that may hereafter come into his hands as guardian aforesaid as the property of said wards.” Under the pleadings, the verdict is against the-corpus of the estate; the judgment clearly created a lien upon it; and if such corpus could be found, an execution based upon this judgment could be levied upon it, and so subject it to the satisfaction of the contract sued on. Certainly this would be contrary to the spirit and letter of the law as contained in section 3060, supra, making the approval .of the ordinary a prerequisite to any encroachment upon the wards’ estate, and the verdict and judgment are contrary to the law, arid so must fall.

Again, the record discloses' that it was neither pleaded nor proved that the interest of, 8%, claimed under the contract declared on, was in the hands of the guardian at the time of the making of the contract, or subsequently. Nor did the evidence show that there were at any time profits 'from any source in the possession or control of the guardian. As far as the evidence went in this regard was. to show that at the date of the contract $4,600 of the wards’ money was in the possession of the guardian, and that interest on that sum at the rate of 8% per annum was to be paid Fisher for the care, schooling, and maintenance of the wards. It is true the verdict of the jury sustained the allegations of the petition and verified the evidence adduced to prove these allegations, but it is equally true that its rendition did not import or supply necessary pleading that was lacking, or essential evidence that was wanting. In the absence of the approval of the ordinary of any encroachment upon the corpus of the wards’ estate, only thé profits could be used to pay for the maintenance and schooling of the wards, and we think that in order to sustain the verdict and judgment rendered, it would, at least have been necessary to show that there were such profits.- This the evidence failed to do, and for this reason the verdict and judgment are contrary to law and without evidence to support them. The court erred in overruling the motion for a new trial.

Judgment reversed.

Wade, Q. J./and Jenlcins, J., concur.


text:
    9231.
    REED v. WEST LOAN & TRUST COMPANY.
    1. Presumptively, the transferee of a note given for a- sum payable on. a named May but providing that it might be paid in stated monthly installments beginning on that day, some of which extended beyond the time of the transfer and none of which appeared to be in arrears at that time, acquired it without notice of failure of consideration. . Consequently it was not error to exclude testimony by which the maker sought to establish that defense "as against the transferee.
    2. “A corporation is not to be charged with notice of facts of- which its president acquires knowledge while dealing in his private capacity and in his own behalf with third persons; nor is knowledge on his part thus acquired imputable to the corporation when, acting through another official, it deals with him at arm’s length as with any other individual representing himself alone.” The alleged knowledge of the president of the transferee corporation therefore could not be imputed to the corporation itself in this case.
    3. The trial judge did not err in excluding the evidence relative to a failure of consideration, and in thereafter directing a verdict for the plaintiff as a bona fide -purchaser for value and without notice.
    Decided May 17, 1918.
    Complaint; from city court of Floyd county—Judge Nunnally. September 4, 1917.

      W. B. Mebane, for plaintiff in error.

      G. W. Sharp, Nathan Hams, contra.
   Wade, C. J.

A. S. West, as payee, transferred, without recourse, to the West Loan & Trust Company, a corporation, the following note, on which the transferee later sued to judgment:

"Rome, Ga., Oct. 8, 1908.
“Oct. 30 after date we jointly and severally promise to pay to A. S. West or order $825.00-Eight Hundred Twenty-Eive 00/100 Dollars at The Citizens- Bank of Rome, Georgia, for value received, with interest at eight per cent, per annum after date. If this note after its maturity is placed in the hands of an attorney at law for collection, we agree to pay ten per cent, on the principal and interest as attorney’s fees and all other expense of collection, waiving all rights-of exemption or homestead given under the laws of Georgia and the United States. It is agreed that this note may be paid at the rate of $8.50 per month beginning Oct. 30th, failure to make any payment when due thereby operating to make due.and collectable the whole unpaid balance.
(Signed) Jerry Reed.”

To the plaintiff’s petition the defendant filed a demurrer calling for the exact date of the transfer of the note, and by amendment it was alleged that the transfer was made on February 14, 1913. The record discloses that West, the transferer, was president of the transferee corporation at the time of the transfer. The defendant set up failure of consideration, and, in order to sustain that defense, contended that the transferee bought the note after1 it became due, and also that the transferee, through its president, the transferer, knew oi the failure of consideration, and consequently the transferee was not a bona fide purchaser for value without notice. The only evidence introduced to show the failure of consideration was the testimony of the defendant himself, which upon timely objection was ruled out, and thereupon the court di-rected a verdict for the plaintiff. The defendant brought the case to' this court, without a motion for a new trial, and in.his bill of exceptions assigns error upon the direction of the verdict and upon the exclusion of the evidence of the defendant as. to failure of consideration.

It is obvious from this brief review of the facts that the case necessarily hinges upon the question whether or not the transferee was a bona fide purchaser,-for value and without notice. , Where a note is transferred before maturity, the presumption is, if the contrary is not shown by competent evidence, that the transferee is a bona fide holder for value and without notice. No evidence was introduced to overcome this presumption. The position taken by the defendant, that the transferee did not purchase the note until approximately two years after it became due, since the petition as amended, as well as the evidence of the transferer, shows that the note was due October 30, 1908, and that the transfer was not made until February 14, 1913, is without merit. It is true the note is dated October 8, 1908, and contains the provision that “October 30, after date, we jointly and severally promise to pay to A. S. West,” etc. However, a 'consideration of the note in its entirety discloses that in the body thereof “it is agreed that this note may be paid at the rate of $8.50 per month beginning October 30th, failure to make any payment when due thereby operating to make due and collectable the whole unpaid balance.” Manifestly it was not the intention of the parties that the note should mature on the 30th of October, 1908, but that beginning on that date it should be paid in monthly installments of $8.50 until paid in full, the failure to pay any of the installments operating to make the note, at the option of the payee, due and the entire unpaid balance collectible at law. As stated above, there was no evidence whatever'to show that the defendant was in arrears in the payment of any of the installments before the transfer of the note, and the transferee was therefore a bona fide purchaser before maturity for value and without notice. The transferee having taken before maturity, the court properly excluded the evidence of the maker of the note which attempted to set up the defense of failure of consideration.

The further contention of the defendant, that the transferee was bound by the knowledge of the transferer, since he was president of the corporation at the time the transfer was made, is likewise without merit. The well-recognized principle of law, upon which this contention is apparently based, that a corporation is presumed to be charged with notice of all material facts which its president, or any other agent authorized to act in its behalf, may have acquired in regard to the particular business at hand, is not applicable to the case under review, since the uncontradicted positive evidence of the transferer is that one Meyerhardt and one Eowell were present representing the corporation in the transaction when the 'transfer was made: The interest of the transferer was adverse to that of the transferee, and the parties were dealing at arm’s length. The rule appears to be-universal that where the interest of the officer selling is adverse to that of the purchasing corporation, notice to the officer is not notice to the corporation. In Peoples Bank v. Exchange Bank, 116 Ga. 820 (3) (43 S. E. 269, 94 Am. St. R. 144), it was held: “A corporation is not to be charged with notice of facts of which its president acquires knowledge while dealing in his private capacity and in his own behalf with third persons; nor is knowledge on his part thus acquired imputable to the corporation when, acting through another official, it deals with him at arm’s length as with any other individual representing himself alone.” See also Pursley v. Stahley, 122 Ga. 362 (50 S. E. 139); Georgia Milk Producers’ Association v. Crane, 137 Ga. 50 (72 S. E. 414). The Court of Appeals, in following the Supreme Court rulings on this subject, states the principle thus: “It is well settled, of course, that ordinarily a corporation is presumed to have notice of any material fact disclosed to any agent authorized to act in its behalf in the peculiar circumstances of with reference to the particular business or undertaking at hand. I-t is equally well settled, as an exception to this rule, that where a director or other officer of a corporation is dealing in his own behalf or in conjunction with others in making a contract with the corporation, he becomes an adverse party, and notice to him is not notice to the corporation.” Wallis v. Heard, 16 Ga. App. 802, 803 (86 S. E. 391). The case at bar comes squarely within'the exception to the general rule referred to in the quotation immediately above; and the cases of Brobston v. Penniman, 97 Ga. 527 (25 S. E. 350), Morris v. Georgia Loan Co., 109 Ga. 12 (34 S. E. 378, 46 L. R. A. 506), Fouché v. Merchants National Bank, 110 Ga. 827 (36 S. E. 256), and Singleton v. Bank of Monticello, 113 Ga. 528 (38 S. E. 947), are not in conflict with anything here ruled, since the decision in each of those cases is based upon the general rule that a corporation which seeks to enforce for its benefit a contract made in its behalf by one of its officers is in law chargeable with notice of whatever he knew at the time the contract was entered into. So, also, in some of .those cases the party having' an adverse interest represented himself as seller and also represented the corporation as its sole -purchasing agent, a thing which the law does not permit, whereas in the' case under consideration there was no evidence whatever to the effect that the transferer was both the seller and the buyer. None of those cases, therefore, have any bearing upon the case in hand. * ■ ■ ■

The trial court therefore did not err in excluding the evidence relative to a failure of consideration, and in thereafter directing a verdict in .favor of the plaintiff, who was a bona fide purchaser fo'r value and without notice.

Judgment affirmed.

Jenhins and Lulce,■ JJ., concur.


author: Luke, <L

text:
    9241.
    City of Atlanta, v. Hendricks.
   Luke, <L

1. When a petition is good as against a general demurrer, an oral motion, made at time of trial, to dismiss the action because the allegations of negligence are too general, will not take the place of a timely special demurrer. The’court did not"err in overruling the oral motion to dismiss the case.

Decided May 17, 1918.

Action for damages; from city court of Atlanta—Judge Eeid. September 8, 1917.

J. L. Mayson, -S. D. Hewlett, for plaintiff in error.

Colquitt & Conyers, contra.

2. Exception to a refusal to grant a nonsuit will not-be considered by this court, where the cause proceeded to verdict, and where further exception is taken to the overruling of a motion for a new trial in which error is assigned on the insufficiency of the evidence to support verdict. The question thus raised is merged into the motion for a new trial and becomes a part of the general grounds of the motion.

3. The court fairly and fully submitted to the jury the contentions and issues raised by the pleadings; and the evidence authorized the verdict, which has the approval of the trial judge. It was not error, for any reason assigned, to overrule the motion for a new trial.

■Judgment affirmed.

Wade, G. J., and Jenkins, J., concur.


text:
    9284.
    Vaughan et al. v. Farmers and Merchants Bank et al.

    Decided May 17, 1918.
    Complaint; from Forsyth superior court—Judge Morris. September 17, 1917.
    Usury was included in the note sued on, which contained a waiver of homestead, and this was pleaded, with other defenses, by accommodation indorsers, who alleged that at the time the note was given they were ignorant of the usury, and therefore they were not liable thereon. The note was given to the plaintiff bank on December 12, 1911, for a loan; the sum received by the borrower was $1,750, and the principal sum named in the note was $1,960, and was payable December 12, 1912, with interest from maturity. It was testified that the indorsers were not informed as to the sum received from the bank, or as to the rate of interest charged in this transaction, and did not know that there was usury in the note. There was evidence, however, that it was usual for the bank to charge more than the lawful rate of interest on loans, and that this' had been done by it in previous transactions with these indorsers. It appeared also that the loan was obtained to pay money due to one of the indorsers, and that the bank’s check for the $1,750 was given to him. The verdict was against the defendants. It was contended in the brief of counsel for the plaintiffs in error that the burden'was on the plaintiff to show that the indorsers knew of the usury, and the evidence was not sufficient to show such knowledge; and on this point they cited: Bank of Omega v. Ford, 20 Oa. App. 496; Prather v.- Smith, 101 Qa. 283; Denton v. Butler, 99 Qa. 264. On the part of the bank it was contended that, it appearing thgt the indorsers knew of the custom of the bank to charge usury, they had reasonable ground to suspect usury in this transaction, and therefore the jury were authorized to find that they were not ignorant of it. .In support of this contention counsel cited: J ones v. 'Pope, 7 Qa. App. 539; Gay v. Qay, 8 Qa. App. 804; Sugart v. Mays, 554 (3). A former decision in this case is reported in 146 Qa. 51.
   Luke, J.

The issues of, fact raised by the defendants’ plea, under appropriate instructions from the trial judge, were determined by the jury adversely, to the defendants. The evidence authorized the verdict, which has the approval of the trial judge. For none of the reasons assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

Wade, G. J., and Jenkins, J., concur.

J. P. Brooke, Howell Brooke, II. L. Patterson, for plaintiffs in error.

Qeorge'F. Gober, O. L. Harris, W. I. Heyward, contra.


text:
    9424.
    City of Atlanta v. Copeland.
    Decided May 17, 1918.
    Certiorari; from Fulton superior court—Judge Bell. October 31, 1917.

      J. L. May son, S. D. Hewlett,'ioi: plaintiff in error.

      G. N. Bynum, contra.
   Luke, J.

An approval of á certiorari bond by the clerk of the municipal court of Atlanta is not such an approval as is required by the Civil Code (1910.), § 5185. In order to meet the requirements of this section, a certiorari from the appellate division of that court must show the giving of the proper certiorari bond approved by the judges from whose judgment certiorari is prayed. Georgian Co. v. Button, 18 Ga. App. 507 (89 S. E. 601). The court did not err in dismissing the first certiorari. The court having properly dismissed the first certiordri upon the ground that it was void (see Singer Sewing Machine Co. v. Dacus, ante, 297, 90 S. E. 8), the plaintiff in error could not recommence the certiorari, and it was not error to dismiss the second certiorari.

Judgment affirmed.

Wade, O. J., and Jenhins, J., concur.


text:
    9427.
    Southern Flour and Grain Company v. Seaboard Air-Line Railway.
    Decided May 17, 1918.
    Certiorari; from Fulton superior court—Judge Pendleton. November 23, 1917. ' ■ ■

      W. I. Heyward, for plaintiff in error.

      Brown, Randolph & Parker, contra.
   Luke, J.

1. The consignee of freight on an “order-notify shipment,” who has paid the draft attached to the bill of lading and owns the goods shipped, can not, by refusing to accept the goods, avoid the payment of freight and demurrage charges due to the carrier. ■

2. Under the pleadings and the issue submitted, the trial court did not err 'in excluding the evidence offered by the defendant.

8. The evidence authorized the judgment, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

~Wade, O. J., and Jenkins, J., concur.


text:
    9429.
    Turner v. Davison-Paxon-Stokes Company.
    Decided May 17, 1918.
    Action for damages; from city court of Atlanta—Judge Reid. November 24, 1917.

      Hughes Roberts, for plaintiff.

      Douglas <& Douglas, Harrison Jones, for defendant.
   Wade, C. J.

1. In a suit for damages on account of an alleged malicious prosecution, the burden is upon the plaintiff to show that the prosecution was instituted without probable cause. The undisputed evidence in this case discloses that this burden was not carried by the plaintiff. Aside from anything else, the alleged agreement on the part of the defendant to accept a-portion of the amount due by the plaintiff on account of certain worthless checks transferred by her to the defendant in purchasing merchandise for cash, and to extend time of payment on the balance due, was not affirmatively shown by any testimony to have been made in behalf of the defendant by any agent or person vested with authority to extend credit or to effect such an agreement; and in view of the distinct denial of such authority by the alleged agent, and in the-.absence of any circumstances tending' definitely to contradict his evidence, there was nothing to show a want of probable cause, which, even under the testimony of the plaintiff, otherwise existed.

2. The trial judge did not err in directing a verdict in favor of the defendant, for no other verdict could- have been legally reached under the testimony.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Lxjke, J.

text:
    9448.
    Farrar Lumber Company v. Pickering.
    Decided May 17, 1918.
    Trover; from Whitfield superior court—Judge Wright presiding. November 10, 1917. ' ,

      O. D. McGutchen, F. K. McGutchen, for .plaintiff in error.

      W. E. Mann, contra.
   Lxjke, J.

1. In an action in trover, where the plaintiff elects to take a money verdict, he, may recover the highest proved value of the converted property between the time of the conversion and the trial, not in excess of the value of the property alleged in the petition. Civil . Code (1910), § 4514.

2. Where title to the property is shown to be in the plaintiff, proof of demand for it by him on the defendant, and of refusal to deliver' by the defendant, makes prima facie a case of conversion.

3. The evidence, though conflicting, authorized the verdict, which was for an amount less than that claimed; and the trial judge has approved the finding of the jury. There is no assignment of error that requires a reversal.

Judgment affirmed.

Wade, O. J., and Jenkins, J., coneur.


author: .Wade, C. J.

text:
    9521.
    FINE v. FRANKEL CLOTHING COMPANY INCORPORATED.
    The amendment making the attachment returnable to the superior court • instead of to the city court was allowable.
    Decided May 17, 1918.
    Attachment and claim; from Meriwether superior court—Judge Terrell. January 15, 1918.

      Hatchett & Hatchett, for plaintiff in error, cited:

      Moore v. Neill, 86 Ga. 186; First Nat. Bank v. Ragan, 92 Ga. 333; Fordham v. Ehrlich, 117 Ga. 883.

      Justiss & Hay, contra, cited cases cited in the decision.
   .Wade, C. J.

This suit grew out of an attachment against an alleged fraudulent 'debtor, issued by the judge of the superior court of Meriwether county, but made returnable to the city court of Greenville. The attachment was levied by the sheriff upon certain property as the property of the debtor, and a claim was interposed and made returnable to the city court, á claim bond and a forthcoming bond being given. Thereafter the claimant filed a petition to the superior court, asking that the attachment be dismissed, on the ground' that it was proceeding illegally, because made returnable to, the city court; and later he filed an amendment seeking to dismiss the levy, on the ground that it was void -because based on an illegal attachment. When the case came on to be heard by the judge of the superior court the plaintiff sought to amend the proceedings, so as to make the attachment, together with the bonds, etc., returnable to the superior court of Meriwether county, instead of to the city court of Greenville, and asked .that the sheriff be ordered so to return the same.

The claimant demurred, on the ground that no order of the judge could make an illegal and void act bf the sheriff valid and legal; and the judge overruled the demurrer and ordered that the proposed amendment be made and the proceedings be returned to the superior court. To this the claimant excepted.

“All parties, whether plaintiffs or defendants, in the superior or other courts, whether at law or in equity, may at any stage of the cause, as a matter of right, amend their pleadings in all respects, whether in matter of form or substance, provided there .is enough in the pleading to amend by.” Civil Code (1910), § 5681. The petition in this ease, showing a plaintiff and a defendant, and setting' forth sufficient data' to indicate and specify a particular cause of action, presented enough to amend by. Civil Code, § 5682. -A plaintiff in attachment has a fight as a matter of law (Civil Code, § 5110) to amend his attachment, bond, declaration, and return. Guckenheimer v. Day, 74 Ga. 1.

It has been -held that where an attachment was inadvertently made returnable to an inferior court instead of to the county court, it was amendable by substituting the word “county” for the. word “inferior.” Covington v. Cothrans, 35 Ga. 156. Other cases in point are Blake v. Camp, 45 Ga. 298; Williams v. Buchanan, 75 Ga. 789. The court did not err in overruling the demurrer.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Wade, C.' J.

text:
    9550.
    Veal v. Darley.
   Wade, C.' J.

An appeal to the superior court from the judgment of a justice’s court was dismissed because the affidavit in forma pauperis, given in lieu of an appeal bond, was defective. Thereafter the appellant moved, during the same term of the court, to reinstate his appeal and amend his affidavit, and to the judgment refusing-to reinstate the appeal he excepted. It was not contended' in the motion to reinstate, or in the brief of counsel for the plaintiff in error, that the affidavit was not fatally defective, or that the court originally erred in dismissing the appeal, and it is clear that the court ‘did not err in refusing to grant the motion to reinstate the case.

Decided May 17, 1918.

Appeal; from Laurens superior court—Judge Kent. November 24, 1917.

Fred Kea, Hal B. Wimberly, for plaintiff in'error.

Larsen & Crockett, contra.

Judgment' affirmed.

Jenkins and Luke, JJ., concur.


text:
    9570.
    TERRY v. THOMPSON & BROS. INCORPORATED.
    1. “The general rule of law declaring the duty of a master in regard to furnishing a servant a safe place to work is usually applied to a permanent place, or one which is quasi permanent. It does not apply to such places as are' constantly shifting and being transformed as a direct, result of the servant’s labor, and where the work in its progress necessarily changes the character for safety of the place in’which it is performed, as it progresses.”
    2. A servant assumes the ordinary risks of his employment, and is bound to exercise skill and diligence to protect himself.
    3. The trial court did not err in dimissing the petition on demurrer.
    Decided May 17, 1918.
    Action for damages; from Muscogee superior court—Judge Howard. February,.11, 1918.

      McCutchen & Bowden, for plaintiff."

      Battle & Hollis, for defendant.
   Wade, C. J.

In tbe bill of exceptions error is assigned upon the judgment of the trial judge sustaining a demurrer to the plaintiff’s petition in an action for the homicide of her son, alleged to have been caused by the negligence of the defendant in failing to furnish him a safe place in which to work. The allegations of the petition indicate that the homicide occurred by reason of the following facts: that the deceased, a minor, was employed by the defendant as a day laborer in the construction of a certain building, and that'on April 12, 1917, the day of the injury, he and several other fellow-servants were engaged in the particular work’ of nailing down flooring in the building; that- the defendant had caused to be placed against certain posts or columns in the center of the building several very heavy wooden doors, in an extremely unsafe and insecure manner; that, due to the unsafe and careless position of the said doors, any jar or jolt incident to work being done near or adjacent to them would cause them to fall, and that this condition was known to the defendant, but not to the deceased; that while the deceased was intently engaged in nailing down the flooring, the jar or vibration incident to his work, as well as that of his fellow-servants in also nailing down flooring and in moving a particular ladder, caused the doors to be precipitated upon him, injuring him so badly that he died several days thereafter. Other' allegations were, that the deceased was free from fault in every particular, and that his death was caused by and through the negligence of the defendant. ' The petition concluded by alleging the following grounds of negligence: “(1) in not furnishing her said son a safe place to work; (2) in furnishing a dangerous place and instructing her said son’to work therein; (3) in placing said heavy doras against the posts or columns in such a position that said doors were dangerous and unsafe; (4) in placing said doors in such a position that they would fall on account of the jar of the working that it was necessary to do in building said warehouse; (5) in placing said doors in such a negligent and careless position that the work being conducted in said building would cause them to fall; (6) in injuring, hurting and killing her. said son.”

Having set forth the substantial allegations of the petition as to the circumstances under which the catastrophe occurred, we do not deem it necessary to do more than briefly state our reasons for affirming the judgment sustaining the demurrer and dismissing the petition. Clearly, much that is alleged as to the master’s knowledge of the conditions existing at the time of the injury, as well as to negligence upon its part, and also as to the lack of’ knowledge and exercise of care upon the part of the deceased, amounts to no more than mere conclusions of the pleader, which necessarily depend" upon the particular facts upon which these conclusions are based. It is a well-established principle that a demurrer admits the facts as stated in the petition, but not the legal conclusions drawn therefrom by the pleader. See Lewis v. Amorous, 3 Ga. App. 50, 53 (59 S. E. 338). Looking to the petition as a whole (which must be construed most strongly against the pleader), it is plain that the existence of the danger incident to the unsafe and negligent manner in which the doors were placed -against the posts was obvious to and assumed by the servant as an. ordinary risk of his employment. Unquestionably the duty rested upon the master to furnish the servant a reasonably safe place in which to work. However, this rule usually applies to a permanent place or a quasi-permanent place, and not to such a place as is constantly changing or shifting as a direct result of the servant’s labor. In the case of Holland v. Durham Coal &c. Co., 131 Ga. 715 (63 S. E. 290), the rule was stated as follows: “The general rule of law declaring .the duty of a master in regard to furnishing a servant a safe place to work is usually applied to a permanent place, or one which is quasi permanent.. It does not apply to such places as are. constantly shifting and being transformed as a direct result of the. servant’s labor, and where the work in its progress necessarily changes the character for safety of the place in which it is performed, as it progresses.” This doctrine was subsequently applied to _ the case of a person who was employed to cut down a tree, which fell upon and injured him. Hagins v. Southern Bell Telephone Co., 134 Ga. 641 (68 S. E. 428, 137 Am. St. R. 270, 20 Ann. Cas. 248). Again it was applied where a person was engaged to make an excavation, and the soil caved in-upon him. Thomas v. Georgia Granite Co., 140 Ga. 459 (79 S. E. 130). See also, in this connection, Southern Ry. Co. v. Taylor, 137 Ga. 704 (73 S. E. 1055); Ludd v. Wilkins, 118 Ga. 525 (45 S. E. 429); Upchurch v. Culpepper, 17 Ga. App. 577 (87 S. E. 834); Robertson v. Merchants & Miners Transportation Co., 18 Ga. App. 568 (90 S. E. 104).

The facts in these several cases are not exactly similar to those involved in the’ ease under review, but undoubtedly the principles of each are applicable. The facts, however, in the recent case of Cowart v. Southern Marble Co., 144 Ga. 254 (87 S. E. 252), are very similar to those involved in the instant case. It appears that in that case (as in this case) the plaintiff sought a recovery upon the theory that the master failed to furnish a safe place to work. Other allegations in the Cowart case were, in substance, that the master was negligent in not putting proper supports under certain marble slabs to prevent them from falling over; whereas in the present case it is alleged that the master was negligent in not nailing the heavy wooden doors to the upright posts against which they were temporarily placed in an inclined position, in the center of the building in which the deceased was working, so as to prevent them from falling. Also it was alleged in the Cowart case that the master was negligent in using, in close proximiity to said marble-slabs, a powerful and heavy steam crane, the operation of which made the soft and groggy ground vibrate, thereby causing the defectively piled pieces of marble to topple over, etc.; just as in the case under consideration the plaintiff claims that the work of the deceased, and his fellow servants, in nailing down flooring in close proximity to certain doors and in moving a ladder, caused the building to vibrate and jar, resulting in the precipitation of the doors upon the deceased. In the Cowart. case the Supreme Court affirmed a judgment sustaining a general demurrer, on the ground that the danger to which the servant was subjected was obvious to him and one which under the circumstances he assumed. Here the work which the deceased was employed to perform tended directly to make the place where he was working unsafe. The dangers incident to the unsafe and negligent manner in which the doors were placed against the posts must have been obvious to the deceased as a man of ordinary intelligence, or at least as apparent to him as to the master, if not more so. Hnder the circumstances detailed in the petition, he necessarily knew that the resulting jar or vibration incident to any nailing in close proximity to the unsafe and insecure doors would in all probability, in obedience to the natural law of gravity, cause them to fall over and thus endanger his safety.

On this line the ease of Williams v. Atlantic Coast Line R. Co., 18 Ga. App. 117, 122 (89 S. E. 158), is closely analogous to this ease. It was there said: “Any extensive knowledge of the laws of physics can not, of course, be expected of ordinary laborers, but the existence of those primal forces which govern the universe and control all matter, and which come necessarily'under the observa-’ tion of every man, whether learned or unlearned, master or servant, - during the entire term of his natural existence, must be held tó be within his knowledge at all times and places and under all condi-tions. . . Among all the great forces of nature, perhaps the dawning intelligence first makes acquaintance with gravity, for even the infant, before he is able to toddle along unaided, discovers that an object released from his feeble grasp will fall, and may produce pain if dropped upon his tender foot or hand, and during all the years which ,lie between infancy and old age the influence of this universal power is daily witnessed by every reasoning person, and to some extent is often apparently noted and guarded against by animals supposed to be incapable of reason. The ordinary results to be expected from the operation of the attraction of gravity are so well understood and so universally recognized by mankind that we involuntarily dodge a falling object and avoid passing under or near heavy objects, insecurely or insufficiently supported aloft from the bosom of mother earth, and it is just as natural for one instinctively to avoid placing himself beneath or near an unattached, heavy, overhanging object as it is for the eye almost automatically to close when nearly approached by any rtiissile or other foreign matter. The plaintiff must necessarily, therefore, haVe known at the time he assumed or decided to remain in the position of risk that any jar or sudden movement would almost certainly detach the unsupported and heavy metal shoe from the engine, and that gravity would then inevitably bring it with dangerous momentum to the ground; and he .was in far better position at the exact time than was the master (acting through its foreman) to know where and when the shoe would probably fall when the locomotive was moved, and to estimate the danger of the place and of his position when the fall occurred, notwithstanding his allegation that he was so situated that he could not at the time see the shoe itself.”

The court did not err in dismissing the petition on demurrer. •

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9596.
    Jones et al. v. Funston.
   Wade, C. J.

1. Where personal property is recovered in a bail-trover action, and no alternative judgment is rendered, and thereafter the defendant sues out a writ of certiorari, giving the usual condemnation bond, and at the hearing the certiorari is dismissed for want of legal notice, and judgment is rendered against the plaintiff and his surety on the certiorari bond, for the cost of the proceeding only, suit on that bond may thereafter be instituted against the principal and the surety for- the value of the property recovered in the original trover action, to be ascertained by proof, where the property itself can not be found to answer the judgment therefor, oy has been destroyed or has ceased to exist. See, in this connection, Civil Code (1910), § 5205.

Decided May 17, 1918.

Action upon bond; from city court of Hinesville—Judge W. C. Hodges. January 23, 1918.

N. J. Norman, for plaintiffs in error.

Ben A. Way, contra.

(a) The case of Franklin v. Kriegshaber, 114 Ga. 947 (41 S. E. 47), relative to the liability of a surety on a supersedeas bond executed where a bill of exceptions was sued out to the Supreme Court, and the case of Bryan v. Simpson, 92 Ga. 307 (18 S. E. 547), and similar cases relative to the proper judgment to be returned on an appeal bond in a claim ease, have no relevancy to the question raised in this case. 2. The trial court did not err in overruling the general demurrer.

Judgment affirmed.

Jenkins and Luke, JJ., conewr.


author: Bloodworth, J.

text:
    9402.
    Beck v. Armour Fertilizer Works.
    Decided May 17, 1918.
    Complaint; from Murray superior court—Judge Tarver. November 3, 1917.

      E. II. Bech, W-. E. Mann, for plaintiff in error.

      King & Starr, contra.
   Bloodworth, J.

There is no merit in any of the grounds of the amendment to the motion for a new trial. The evidence authorized the verdict.’ Judgment affirmed.

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