text:
    329.
    SIMS v. SCHEUSSLER.
    1. A copy of an instrument required by law to be recorded, taken from the proper registry and duly certified, is presumptive evidence of the existence of an original.
    2. The proper custodian of a canceled mortgage is the mortgagor, and of an outstanding uncanceled mortgage the mortgagee. Where it appears that due notice has been served on the mortgagee to produce the original mortgage, and that the mortgagor resides beyond the jurisdiction of the court, a sufficient foundation is laid to admit as secondary evidence a properly certified copy of the mortgage.
    3. The issues in the ease and the law applicable thereto were fully, fairly, and correctly submitted; and no material error appears, except in the exclusion of certain testimony set out in the opinion.
    Complaint, from city court of Floyd county — Judge Hamilton. November 16, 1906.
    Argued May 6,
    Decided September 19, 1907.

      Denny & Harris, for plaintiff.

      C. N. Featherston, Dean & Dean, for defendant.
   Hill, C. J.

Sims brought suit against Mrs. Scheussler on a note made by her and indorsed bj' her husband. In her plea she admitted the execution of the note, and that the plaintiff was the holder thereof. She defended on the ground that the note was without legal consideration, and was made by her in assumption of the debt of her husband to the plaintiff or as security for such debt, and was therefore void and could not be enforced as to her. The jury found in favor of the defendant, and plaintiff’s motion for a hew trial was overruled. The evidence in the record shows that Sims and defendant’s husband were partners engaged in the hardware business, and that, prior to the execution of the note sued on, Sims sold his interest in the business to Scheussler for the balance of the purchase-price amounting to $2,460.96. These notes were not paid at maturity, and the note for $1,200, sued on, was the outcome of efforts made by Sims to collect them. To this point the evidence presents no conflict. The plaintiff contended, that, soon after the sale of his interest in the hardware business to Scheussler, the latter gave his wife a mortgage for $6,000 on the whole.stock of hardware goods; that when he made an effort to collect his purchase-money notes, he was met by this claim of the wife; that he thereupon employed an attorney and threatened to attack the validity of this mortgage as against his notes; that in the negotiations which followed, the wife Anally gave him the note sued on for the notes held by him, made by her husband for the purchase of the goods covered by the mortgage, and in full settlement of his claim of priority of payment out of said stock of goods; that these purchase-money notes were thereupon transferred and delivered to the defendant, and the mortgage cancelled by a transfer to the mortgagee of the stock of goods; that the consideration of the note sued on was the notes made by Scheussler in payment of xhe' hardware stock, and the settlement of any claim, legal or equitable, based upon said notes; that therefore the note sued on and made by the wife was for her own benefit, and to protect her interest in the property covered by her mortgage. If this was the truth of the transaction, the note made by the wife was a valid contract, and enforceable against her under the law of this State, A wife can buy the notes of her husband, or she can make a valid obligation in settlement of such notes, if they apparently constitute a prior claim against property derived from her husband and to which she has title or interest. Daniel v. Royce, 96 Ga. 566, 23 S. E. 493; Lowenstein v. Meyer, 114 Ga. 709, 40 S. E. 726; Atlanta Land Co. v. Austin, 122 Ga. 374, 50 S. E. 124.

The defendant denied the foregoing contention of the plaintiff. She denied that she held any mortgage on the hardware stock, or had any interest in said stock or any claim against her husband in connection with said stock of goods. She contended, that the-note sued on was made by her solely for the purpose of paying or assuming the debt of her husband to the plaintiff as represented by the notes held by him against her husband, and that her said note-was given by her as security for the payment of said notes made by her husband. If this contention was the truth of the transaction, the note was invalid and void as against the defendant. Civil Code, §2488. Any contract of the wife to which a creditor of the husband is a party, the purpose of which is to make the wife the husband’s surety or by which she assumes the payment of her husband’s debt, is invalid, and can not be enforced against her. Berry v. Goodger, 80 Ga. 620, 6 S. E. 19; Nelms v. Keller, 103 Ga. 746, 30 S. E. 572; Bank v. Carlton, 96 Ga. 470, 23 S. E. 388; Johnson v. Leffler Co., 122 Ga. 670, 50 S. E. 488; White v. Stocker, 85 Ga. 200, 11 S. E. 604; Bank of Cartersville v. Bayless, 96 Ga. 684, 23 S. E. 851; Chastain v. Peak, 111 Ga. 889, 36 S. E. 967.

The evidence in the ease was close and directly conflicting as to- • the material facts, and it was doubtful what was the real transaction between the parties. Every fact and circumstance was therefore valuable and weighty which tended to support the contention of either side. The learned trial judge in his charge submitted the issues and the law fairly, fully, and correctly. In our opinion, however, he erred in excluding certain testimony offered by the plaintiff, A copy of a mortgage for $6,000, dated December 29, 1886, in favor of Mrs. Christine E. Scheussler, covering a stock of hardware as security for a note of even date with the mortgage, and payable to Mrs. Scheussler January 10, 1887, recorded in the clerk’s, office of the superior court of Eulton county January 24, 1887, and duly certified by the clerk of said court, was offered in evidence by the plaintiff. This certified copy also showed a cancellation of said mortgage^ signed by Mrs. C. E. Scheussler on April 30, 1888, in consideration of the transfer by tbe mortgagor to tbe mortgagee of a stock of hardware described in the mortgage. This satisfaction the certified copy stated was entered of record December 17, 1885. Of course this last date was a palpable clerical error. Before the certified copy of the mortgage and note was offered in evidence, proof was made that the defendant had been duly served with notice to produce the original, and that she had responded that she was unable to comply, and denied the existence of the original or that it had ever been in her possession or control. The court excluded this testimonj'', on the ground that there was no proof of the existence of the original. We think this was error. Clearly the ground upon which the ruling was based was erroneous. If the testimony was for any reason inadmissible, the reason for its exclusion would be immaterial. In our opinion, under the facts before the trial court, this testimony was competent. If the mortgage in question had been paid off and canceled, the proper custodian was the mortgagor. The defendant denied' the existence of the original; but insisted that if a genuine original had ever existed, the entry from the record showed that it had been paid before the giving of the note sued on, and the testimony was therefore not relevant or material. If the mortgage had been paid off, its proper custodian was the mortgagor, and the evidence showed that he had died out of the State, beyond the jurisdiction of the court, seven years before the suit was brought. If the mortgage had not been paid off, its proper custodian was the mortgagee, the defendant, who had been duly served with notice to produce. These facts show proper 'diligence as foundation for the introduction of the certified copy. The existence, genuineness, and contents of a deed shown to be lost or destroyed, or beyond the jurisdiction of the court, may be proved by a certified copy of it, if it has been properly and legally probated for record. Eady v. Shivey, 40 Ga. 684; Hayden v. Mitchell, 103 Ga. 435, 30 S. E. 287; Brown v. Oattis, 55 Ga. 416; Lunday v. Thomas, 26 Ga. 537; Civil Code, § 5172. The proper registration of the mortgage was presumptive evidence of the ■existence of an original, and the evidence that all the search for the original had been made which the law required entitled the ' plaintiff to the benefit of this secondary evidence. The testimony was relevant and material. It tended to strengthen the contention •of the plaintiff, that the defendant had an interest in the stock of hardware sold by him to her husband, in which he also claimed an. interest, and that her note was made for her benefit to protect that interest.

We think the court also erred in ruling out the statement of J. H. Lumpkin, a witness for the plaintiff, that “Mrs. Seheussler had some kind of a claim on the property,” referring to the stock of hardware. This witness had testified that he was present with the plaintiff, Mr. Seheussler, Mrs.-Seheussler, and Mr. Burton Smith, attorney for plaintiff, when the note sued on'was signed by Mrs. Seheussler. He was representing Mr. and Mrs. Seheussler as attorney in the negotiations leading up to the execution of .the note, and gave testimony as to what took place at the negotiations,— stating that “Mrs. Seheussler had some kind of a claim on the property. Whether this was called a mortgage, or bill of sale, or transfer, in the negotiations with Sims and his attorney which resulted in the giving of the note by Mrs.' Seheussler, I am not quite positive.” Objection was made to the statement that “Mrs. Seheussler had sdme kind of a claim oi the property,” and the court excluded it. This was not an effort to prove the contents of a written instrument, but was the statement of-a substantive fact. Especially was this testimony admissible in view of the evidence of Mrs. Seheussler, that she had no claim of any sort on the stock of hardware, or against her husband. That she had some kind of claim on the property at the time she executed the note sued on was material as tending to show a valid consideration for it.

The other assignments of error are without substantial merit; but we think the plaintiff, in view of the great conflict in the evidence, was entitled to every fact and circumstance relevant to the issue of the validity of the note sued on, and tending to establish the truth of his contention. Judgment reversed.


source: Caselaw Access Project

author: Hill, C. J.

license: Public Domain

text:
    336.
    Goodwyn v. Central of Georgia Railway Company.
   Hill, C. J.

I: The declaration of the plaintiff, made to a physician, that , he felt no sensation of pain resulting from sticking a needle into his finger, does not fall within any of the exceptions to the rule as to hearsay, and was properly excluded. Atlanta Street Railroad Co. v. Walker, 93 Ga. 463, 21 S. E. 48; Broyles v. Prisock, 97 Ga. 643, 25 S. E. 389; Atlanta, K. & N. Ry. Co. v. Gardner, 122 Ga. 82, 49 S. E. 818. Especially was there no error in excluding declarations of the plaintiff, as to his physical symptoms and suffering, which were no part of the res gesto of the injury, when the plaintiff himself as a witness fully described the character and extent of his injuries. “The higher and better evidence is that of the person who has actual knowledge of the truth of the pains and other feelings to which the complaint relates.” Atlanta Street R. Co. v. Walker, 93 Ga. 467.

Certiorari, from Pike superior court — Judge Reagan. October 12, 1906.

Argued May 7,

Decided September 19, 1907.

W. W. Lambdin, B. P. Searson Jr., for plaintiff.

Hall & Cleveland, J. F. Redding, for defendant.

2. An objection that the court erred in refusing to allow a witness to answer a question asked on the direct examination will not be considered, where the expected answer is not set out, so that the court can determine whether the evidence would have been admissible. Hagerstown Steam-Engine Co. v. Grizzard, 86 Ga. 574, 12 S. E. 939.

3. The testimony of the engineer of the backing train, that at the time he struck the car in which plaintiff was at work he was moving back at the usual speed necessary for switching and making couplings of that character, was properly admitted. Civil Code, § 5287.

4. The court instructed the jury that the law required the defendant railroad company to show that at the time of the injury its agents and servants were in the exercise of “ordinary care,” instead of charging the rule of diligence in the language of the Civil Code, §2321, to wit, “all ordinary and reasonable care and diligence.” The words “ordinary care” embody the same degree of diligence as the words “ordinary and reasonable care and diligence,” and have substantially the same significance. The words “ordinary” and “reasonable,” descriptive of diligence, are synonymous, and are used interchangeably in statutes and by the courts; especially is this true, when the court defined correctly the meaning of “ordinary care” in a proximate portion of the charge.

o. The court charged the jury that “ordinary care” is that care that a prudent man would exercise under like or similar circumstances.” The use of the word “a,” instead of the word “every,” made no material change in the definition, and could not have misled the jury.

fi. The court instructed the jury as follows: “The plaintiff alleges and asks for damages for pain and suffering. In determining the question as to whether you will allow damages for pain and suffering, the court can give you no rule. There is no rule except the enlightened conscience of intelligent, honest jurors.” Considered alone this instruction would be error, but, in connection with the entire charge, it is clear that the court in this excerpt was referring to the measure of damages for pain and suffering, and not to plaintiff’s right to recover damages for pain and suffering.

7. The other assignments of error are wholly without merit; and the verdict, approved by the trial court, is fully warranted by the evidence.

Judgment affirmed.


text:
    383.
    SIMONS & COMPANY v. BURT.
    1. The judge of the superior court is -without jurisdiction to render a final judgment on a certiorari, where there is no question of law which must finally govern the case, but only issues of fact are involved.
    2. Where the judge of the superior court is of the opinion that the verdict against plaintiff in certiorari is without evidence to support it, the proper judgment is to sustain the certiorari and remand the case for a new trial.
    Certiorari, from Muscogee superior court — Samuel B. Hatcher, judge pro hac vice. February 23, 1907.
    Submitted June 20,
    Decided September 19, 1907.

      J. E. Chapman for plaintiff.

      T. T. Miller, Ed. Wohlwender, for claimant.
   Hill, C. J.

Simons & Company, plaintiffs in error, instituted suit by attachment against McGhee, which was levied by serving summons of garnishment on Pou & Company. The answer of the garnishees admitted an indebtedness of $127.70. Burt dissolved said garnishment, claimed the fund, and traversed the answer of the garnishee, and issue was joined thereon by plaintiffs in attachment. On the trial of the claim ease in the justice court, to which the attachment was made returnable, a verdict was rendered finding the fund subject to the attachment. The claimant carried the case to the superior court by certiorari. On the hearing the certiorari was sustained by the judge pro hac vice, and a final judgment entered in behalf of the claimant. Exceptions were taken to this judgment, .because contrary to law and without evidence to support it and for the reason that such final judgment depended upon an issue of fact, there being no question of law which must finally govern the ease.

The claimant, by his evidence, showed that before the attachment was levied by service of the summons of garnishment, he had bought from the defendant in attachment 110 cords of wood which had been shipped by his (claimant’s) direction to the garnishee, to whom claimant had sold said wood. It was contended by the plaintiffs in attachment, that the sale of the wood was not complete; that there had been no separation and delivery of the 110 cords of wood by the defendant in attachment to the claimant, but that said 110 cords was a part of 175 or 200 cords which were shipped by the defendant in attachment to the garnishee. There was much conflict in the evidence as to whether the sale of the 110 cords was a •completed sale, or only an executory contract. There was also conflict in the -evidence as to the amount of wood shipped to the garnishees. If the judge of the superior court was of the opinion that the evidence preponderated in favor of the claimant or plaintiff in certiorari, he had the right, in the exercise of his discretion, to sustain the certiorari and remand the case for another trial; but he erred in rendering a final judgment. This would be so .even where there was no conflict in the evidence, if there was no controlling question of law, “because it could not be known with certainty that the evidence on another trial would be the same.” Williams v. Bradfield, 116 Ga. 705, 43 S. E. 57; Bass Dry Goods Co. v. Electric Co., 123 Ga. 640, 51 S. E. 579. We think, therefore, that the court erred in rendering a final judgment for the claimant; and we reverse this judgment and direct that the case be remanded to the justice court for a new trial. Judgment reversed.


text:
    387.
    Linder v. Hutton & Gibbs.
    Complaint, from city court of Wrightsville — Judge Faircloth. February 14, 1907.
    Submitted June 20,
    Decided September 19, 1907.

      E. L. Stephens, for plaintiff in error. J. L. Kent, contra.
   Hill, C. J.

No material error appears, and the undisputed evidence fully supports the finding of the court. Judgment affirmed.


text:
    411.
    RHODES & SON FURNITURE COMPANY v. FREEMAN.
    1. Where personal property of A is delivered into the possession of B under a promise to be returned on a certain named contingency, and B refuses to return the property to A on the happening of said contingency, A has an election of remedies. He can sue in trover, or he can waive the tort and bring an action ex contractu on account for the value of the property.
    2. There was no error in overruling the certiorari.
    Certiorari, from Richmond superior court — Judge Hammond. February 2, 1907.
    Argued. June 21,
    Decided September 19, 1907.

      Dorsey, Brewster, Howell & Heyman, Charles A. Picquet, Walter Pearce, for plaintiff in error. Austin Branch, contra.
   Hill, C. J.

The defendant in- error brought suit in a justice’s court against the plaintiff in error, ón open account for the sum of $35, and obtained a judgment. On certiorari, this judgment was-affirmed.. The uncontroverted facts make the following case: The Rhodes & Son Furniture Company sold to Diana Freeman a set of furniture for $165. As part of the purchase-price she was -to be allowed $35 for an old set of furniture which she delivered to the vendor. The purchase was made by Diana Freeman on condition that it should be approved by her husband. He did not approve, and Diana demanded the return of her old furniture by the Rhodes: Company according to the understanding, but the company refused to return it, and subsequently sued out an attachment for the $130, balance of the purchase-money of the new furniture, and seized the same; and Diana Freeman brought suit on account for her old. set of furniture. It is contended by plaintiff in error that the judgment overruling the certiorari was error for two reasons: (1) Because the evidence established a conversion of the furniture by the Rhodes Company, and the remedy was either in trover for the conversion, or for damages on account of the breach of duty by the company in failing to comply with its agreement; and such suits sounding in tort, the justice’s court was without jurisdiction. (2) Because the plaintiff in error, as defendant in the justice’s court, pleaded that in the particular matter- out of which the claim of $35-arose it had sworn out a purchase-money attachment, and that said cause was still pending; the evidence supported this plea, -and pending the controversy in the attachment case the plaintiff could not maintain her suit for the old set of furniture, it being a part of the purchase-money.

The rule of law Is well settled that the plaintiff may waive the. tort and sue for money had and received to his use, where the property has been turned into money. Jones v. Smith, 62 Ga. 347; Buchanan v. McClain, 110 Ga. 480, 35 S. E. 665; Clark on Contracts, 776. It is onty where personal property has been wrongful^ taken and converted in some other manner than by a cale, and where no money has been received for it, that the remedy against the wrong-doer is restricted to an action ex delicto. But where personal property has been delivered to one under a contract express or implied, to be returned on certain conditions, and such personal property is not returned as agreed, suit can be brought either in tort, or the tort can be waived and suit brought in assumpsit for the value of the property. Spencer v. Hewett, 20 Ga. 426; Buchanan v. McClain, supra; Pomeroy’s Code Remedies, § 569. The undisputed evidence in this ease is that the contract of purchase was to be rescinded and the old set of furniture returned to the defendant in error, if the trade was not approved by her husband, and that the value of said old set of furniture was $35. The contingency which was to prevent a complete consummation of the sale did happen, but the furniture company refused to rescind, kept the old furniture, and sued for the purchase-price of the new. It seems clear that the plaintiff in the court below had a selection of remedies — suit in trover, or in assumpsit for the value of the property.

The pendency of the attachment suit for the purchase-money presented no legal reason why the plaintiff could not sue for the value of the furniture. The evidence does not show that she was making any resistance to the attachment suit. On the contrary it seems that she treated the contract of sale as rescinded, and, failing to get her property returned to her, was suing- for its agreed value.

Under the facts, and without reference to any mere technical question of procedure, we think the justice of the case is with the defendant in error. The furniture company has retaken its property, and should either return or be made to pay for that of the defendant in error. Judgment affirmed.


author: Russell, J.

text:
    412.
    RHODES & SON FURNITURE COMPANY v. JENKINS.
    1. An action for money liad and received lies in behalf of the plaintiff to recover his money in the hands of a defendant, who, in equity and good conscience, has no right to. retain the same.
    2. If one sells the property of another without authority, the owner may waive the tort and sue him for the money; likewise, if one wrongfully obtains the money of another, he may waive his damages and sue for money had and received.
    3. A constable’s sale, not held at the time and place and in the manner provided by law, is void. Civil Code, §4166. Where an attachment for purchase-money is levied on property to which the plaintiff in attachment has reserved title, the sale is void unless prior thereto §5432 of the Civil Code be complied with.

      4. A seizure and illegal sale and purchase at such sale of the property by the vendor who had theretofore sold such property under a conditional contract of .sale effects a rescission of the contract, and the purchaser is entitled to recover the amount of the purchase-price paid by him, less the reasonable value of its use while in his possession.
    Certiorari, from Richmond superior court — Judge Hammond. February 2, 1907.
    Argued June 21,
    Decided October 3, 1907.

      Dorsey, Brewster, Howell & Heyman, O. A. Picquet, Walter Pearce, for plaintiff in error. Austin Branch, contra.
   Russell, J.

The defendant in error, Christopher Jenkins, brought suit, in a justice’s court, against Rhodes & Son Furniture Company, for money had and received, and obtained a judgment in his favor. The furniture company carried the case to the superior court by certiorari, averring that the verdict of the jury in the justice’s court was error, because: “ (a) It was contrary to the law and the evidence, (i) The action declared upon was for an open account, while if defendant had any remedy whatever, it was a suit in tort, for damages, (c) That, under the evidence, the suit attached to the summons set forth no cause of action, (d) That the evidence disclosed that an attachment for the purchase-money had been brought by petitioner against plaintiff, in the notary public ex-officio justice of the peace court, 120th district, G. M., of Richmond county, and judgment rendered, and property sold under said judgment; and the suit in question was a collateral attack upon said judgment, upon the ground that the property had not been properly sold, (e) That the evidence disclosed that $33.25 sued for had been voluntarily paid petitioner, without fraud or duress, and therefore could not be recovered.” The certiorari, coming on to be heard on February 2, 1907, was overruled and dismissed by his honor Judge Hammond of the superior court.

It'appears, from the evidence in the justice’s court, that the plaintiff, Christopher Jenkins, purchased from the A. G. Rhodes & Son Furniture Company a lot of furniture on the installment plan. The payments were to be one dollar a week, and the plaintiff had paid $33.00. He was behind two weeks in his payments. Defendant’s agent demanded the balance. Plaintiff’s wife was sick, and he informed the company of this fact. The furniture company refused to wait, and swore out an attachment for the purchase-money, under which the property was seized. The plaintiff was absent from his home at the time of the levy, and his wife was sick in bed in confinement, and unable to object. Under the attachment the property was sold, part at the court ground and part at Bhodes Furniture Company’s store. The plaintiff demanded the amount he had paid of the furniture company, and they refused to pay his money back. Judgment by default was rendered against the defendant on the attachment, on June 27, 1906, and the property was sold by the constable, as above stated, and purchased by the A. G-. Bhodes & Son Furniture Company themselves on July 25, 1906. The attachment was levied May IS, 1906, and the plaintiff began his suit June 18, 1906.

To the suit filed by Jenkins to recover the money paid by him the defendant’ set up the attachment proceedings and pleaded that it was not indebted to the plaintiff. In other words, it insisted that it was entitled to have both the furniture and the money that had been paid for it. The jury in the justice’s court and the judge of the superior court thought otherwise, and we concur in their judgment. The learned counsel for plaintiff in error argues that “Jenkins admitted that he made the contract to buy the property; admitted that he was in default on the payments; admitted that the property had been seized by a constable. lie did not allege or set up any fraud, and his sole excuse for not promptly meeting his payments was that he had had sickness in his family which, had interfered with his payments.” Counsel in his brief insists that the certiorari should be sustained upon all its grounds, and that the verdict was contrary to law and the evidence. It is insisted that the suit should have been “one in deceit or fraud” and was one improperly brought for money had and received, because the evidence did not disclose any contractual relation by which the furniture company was to refund any of the money. The main con-ten cion of the plaintiff in error, however, is that Jenkins’ rights, if any, are precluded by the judgment in the attachment proceeding. The action was properly brought for money had and received. This action lies in all cases for the plaintiff’s money in the hand of the defendant, which in equity and good conscience he has no right to retain; and it is necessary for the plaintiff to prove only two things: liis right to the money, and the defendant’s possession. “Whenever the plaintiff could recover in a court of equity, he can recover in an action for money had and received. Chitty on Con. 474. 2 T. R. 153; 1 Cowper R. 372; 6 Peters. 68. This is also ruled in the 7th Ga. 68, 69." Philips v. Crews, 65 Ga. 277. The $33.25, which the plaintiff had paid the defendant, was in the defendant’s possession. The only question, then, was the right of the plaintiff to this money. If the plaintiff showed that he paid the money, he would have the right to require the defendant to account for it, and would be entitled to recover, unless the defendant showed cause why he 'should not refund it. This the defendant attempted to do- by evidence of the attachment, judgment, and sale thereunder. If the defendant had shown a proper judgment and legal sale thereunder, the plaintiff’s action would have been defeated, but the sale, for-two reasons as shown by evidence, was utterly void. According to the testimony of the constable himself, part of the property was sold at the place of holding justice’s court and the remainder at thq, furniture company’s place of business. There was no evidence that the sale took place within the legal hours of sale, or that the advertisement was posted at three public places, as required by law. Civil Code, §§4165, 4166. The judgment set up by the defendant as a defense was not collaterally attacked, as insisted, but the sale thereunder properly disregarded as void. The contract evidencing the purchase of the furniture by Jenkins is called, throughout, a rent contract, and all the payments to be made are designated as rent; but under the decision in Hays v. Jordan, 85 Ga. 742 (followed in Ross v. McDuffie, 91 Ga. 121; Blitch v. Edwards, 96 Ga. 610; National Bank v. Goodyear, 90 Ga. 728; Halliday v. Bank of Stewart County, 112 Ga. 464; Glisson v. Heggie, 105 Ga. 33; Snelling v. Arbuckle, 104 Ga. 366; Cottrell v. Merchants Bank, 89 Ga. 519), it is not a lease, but a contract of conditional sale with the title reserved in the vendor, and no quitclaim conveyance being shown to have been filed and recorded prior to the levy and sale, the sale was for that reason also void. Civil Code, § 5432. Cooper v. Smith, 125 Ga. 167; Cade v. Jenkins, 88 Ga. 791; Glisson v. Heggie, 105 Ga. 33. The furniture company elected to rescind the contract and retake the property. The contract was at an end. Having made their election, they could not keep plaintiff’s money. He was entitled to recover what he had paid, less a reasonable amount for the use of the property during the time while he had it in possession. The amount to be thus deducted was to be fixed by the jury; and as the defendant introduced no evidence as to the value of the use, it can not complain that the jury only made a deduction of twenty-five cents. It could not complain, in the absence of such evidence, if the jury had made no deduction at all: We agree with learned counsel for plaintiff in error that it is immaterial why' the defendant in error defaulted in his payments, and that the furniture company had the right to retake the prop•erty, regardless of Jenkins’ misfortunes; but when it retook the furniture and at a void sale itself became the purchaser, it became liable, under the uniform current of authorit}', to account to Jenkins for the money received by it from him on a contract which itself preferred to abandon. The point is, not whether the plaintiff below had a good reason for his default ^(in law he had none), but whether the vendor, who had reserved title, elected to stand ■on its title or proceed without regard to the contract. It elected The latter, and must abide the consequences. ‘

Judgment affirmed.


text:
    414.
    Caudell v. Southern Railway Company.
    Action for damages, from Habersham superior court — Judge Ivimsey. January 30, 1907.
    Argued June 25,

    Decided September 19, 1907.

      J. C. Edwards, J. L. Perkins, for plaintiff.

      McMillan & Erwin, for defendant.
   Hill, C. J.

Tlie plaintiff having failed to prove his ease as laid, the court should have awarded a nonsuit. The defendant having introduced no testimony, the direction of a verdict in its favor was erroneous. Proctor & Gamble Co. v. Blakely Oil Co., 128 Ga. 606, 57 S. E. 879.

The judgment is reversed, with direction 'that in the trial court a judgment of nonsuit be substituted for the judgment rendered.


text:
    540.
    KELLAM v. THE STATE.
    'The facts in this case do not. slioiv a violation of section 672 of tlie Penal Code, and-the verdict is set aside and a new' trial ordered.
    Accusation of unlawful sale of crop, from city court of Wrightsville — Judge Faircloth. May 20, 1907.

      Submitted July 17,
    Decided September 19, 1907.

      E. L. Stephens, for plaintiff in error.

      J. L. Kent, solicitor, contra.
   Hill, C. J.

The plaintiff in error was a tenant and was convicted of a violation of section 672 of the Penal Code. The evidence showed that the tenant delivered to the landlord two bales. of cotton, which paid his rent, being all the cotton made by him during the year; that he also owed the landlord $59 for three tons-of gitano advanced to him during the j^ear in which the crop was-made, to aid in making it. The tenant was also indebted to the landlord $114, paid for him by the landlord before he moved to-his place. The tenant, in addition to the two bales of cotton delivered in payment of rent, tendered to the landlord all the “stuff”' that he had made during the year on the place; and the landlord refused to accept it, because “it was nothing but a little trash of corn and fodder, and was worthless.” The tenant also turned over-to the landlord his mule, buggy, and harness, and the landlord allowed him $110 for the property, on what he owed him. The-tenant sold the seed out of one of the bales of cotton for $5.16. He stated that he was compelled to do this to get something to eat,, as the landlord did not furnish him any rations. For ■ the sale of these seed, and using the money therefrom, the landlord prosecuted the tenant for a violation of section 672 of the Penal Code.

We think the facts in this case do not show that essential element of this offense, a fraudulent intent. The tenant seems to have-acted in the utmost good faith. He paid his rent in full; and offered to turn over to the landlord his entire crop, which was-refused, and did turn over to the landlord his mule, buggy, and harness. The tenant owed $59 for advances made to make the-crop. His mule, buggy, and harness, according to the landlord,, were worth $110. This was more than sufficient, to pay the advances, and we- think should have been first applied in payment of the debt for the advances. But it does not appear that the value of the property delivered to the landlord by the tenant and the value of the crop which he tendered to the landlord would not have been sufficient to fully pay the debt due for advances, and the old debt contracted before the relation of landlord and tenant existed. The facts in this case show that the tenant was acting honestly, and had done everything possible to pay his landlord, and had in fact paid him in full for all advances made to aid in making the crop. It would be unjust to let this verdict stand; and the judgment refusing a new trial is Reversed.


text:
    556.
    LEE v. THE STATE.
    The verdict is sustained by the evidence, the law was correctly presented by the trial judge in his charge, and no reason appears why a new trial should be granted.
    Conviction of manslaughter, from Clayton superior court— Judge Roan. May 24, 1907.
    Argued July 17,
    Decided September 19, 1907.

      Watterson & Blalock, Candlers, Thomson & Hirsch, R. L. D. McAllister, for plaintiff in error.

      William, Schley Howard, solicitor-general, contra.
   Russell, J.

The plaintiff in error was indicted for murder, and .convicted of voluntary manslaughter. He excepts to the overruling of his motion for a new trial, and assigns error as to certain instructions given by the trial judge in his charge to the jury, as well as upon the judge’s refusal to charge. He complains of the admission of evidence as to dying declarations, and of the failure of the State to introduce the testimony of a certain witness. In view of the fact that the plaintiff in error was found guilty of voluntary manslaughter, and not of murder, some assignments of error are immaterial in their effect on the defendant; but we will consider each assignment seriatim. The first assignment of error alleges that the charge of the court confused the provisions of §§71 and 73 of the Penal Code, and tended to create upon the minds of the jury the impression that the provisions of §73 qualify and limit the provisions of §71. It is well settled that §73 does not qualify or limit the law of justifiable homicide contained in §71. Section 73 applies exclusively to cases of self-defense in a mutual combat in which both parties have been at fault. Section 71 refers to cases of apparent danger when the homicide is committed in good faith to prevent the commission of any of the offenses mentioned in § 70, or under the- fears of a reasonable man that such an offense will actually be committed unless the person who is actually or apparently about to commit the wrong be killed. Our Supreme Court lias held that "instructions as to these two branches of the law of justifiable homicide should not be so given, as to confuse the one with the other.” In the cases of Teasley v. State, 104 Ga. 738, 30 S. E. 938, and Ragland v. State, 111 Ga. 211, 36 S. E. 682, new trials were granted because the practical effect of the charges therein complained of was to deprive the defendant of any right of self-defense unless his life were actually in danger, while, as a matter of law, the defendant had an equal right to kill in order to prevent a felony upon his person or his property.

In this case the trial judge, after charging the jury that “if at the time of the killing of White by the defendant (if the defendant is shown to have killed White), the circumstances were such as to excite the fears of a reasonable man that a felony was about to be committed on his person, and if under the influence of such fears, if such existed, Lee shot and killed White, he would not be guilty of any offense but would be entitled to a verdict of not guilty,” repeated the same principle by instructing the jury: “If jmu believe from the • evidence or from, the defendant’s statement the deceased was not, at the time he was slain by the accused, attempting to commit a felony on the person of the accused by taking his life or otherwise, yet if the circumstances at the time were such to the defendant as a reasonable man, that he believed it was necessary for him to shoot and kill in order to save himself from an assault amounting to a felony upon him, the killing would be justifiable.” The court proceeded to say: “If a person kill another in his defense, it must appear that the danger was so urgent, or was apparently so to the defendant at the time of tlm killing, that in order to save his own life, or to save himself from a serious personal injury amounting to a felony, the killing of the other was absolutely necessary. It must appear also that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given.” I-Iad the court charged § 73 in immediate connection with the instructions first quoted, the exception might have been well taken, because the jury might have been confused, but the judge,.after saying that it must appear that the danger was so urgent and pressing, also referred to the other separate defense by adding, “or was apparently so to the defendant;” and instead of limiting the jury to a killing done in order to save the defendant’s own' life, he states, as an additional right of the defendant, the right to kill "to save himself from a serious personal injury;” so that, instead of confusion, the.legal rights contained in §§71 and 73 were both clearly presented to the jury. One who slays another can only claim immunity under the doctrine of absolute self-defense when the danger is urgent and pressing; and the danger must at least appear to be equally. as .urgent- and pressing before the doctrine of reasonable fears will apply. "The doctrine of reasonable fear as a defense does not apply in any case of homicide where the danger apprehended is not urgent and pressing, or apparently so, at the time of the killing.” Jackson v. State, 91 Ga. 271, 18 S. E. 298, 44 Am. St. R. 22. In the case of Williams v. State, 120 Ga. 873, 48 S. E. 368, it was insisted that, an instruction similar to the one of which complaint is made in this case was not applicable, and could , only be applicable in a case where the evidence disclosed a mutual intent to fight; but the Supreme Court refused to concur in that view.

The plaintiff in error also insists that the law contained in §71 of the Penal Code is confused with that contained in §73, and that the impression was created upon the minds of the jury that the law contained in §73 qualified and limited that contained in §71, by the following charge of the court:. "If you have a reasonable doubt, gentlemen, as to whether the defendant acted, when he shot, under circumstances calculated to excite the fears of a reasonable man, or whether he felt at the time he shot, or had reason to feel from the circumstances, that it was necessary to shoot to save his life, limb, or person, he would be justifiéd in so doing; but gentlemen, I charge you further, if you believe from the evidence in this casé, or from the statement of the defendant, that White, the deceased, made an assault upon the defendant with a •dangerous weapon, such as a fire-poker, and you find that such a weapon, if it had been used upon the defendant by White, would have been a weapon, thus used, likely to have produced death, yet if you believe that the deceased desisted, and put down the weapon, -and was making no effort with such weapon or any other weapon to inflict an injury upon the defendant at the time he was shot by the defendant, and it further appears that the defendant shot him not in the fear of a reasonable man that he was in any serious personal danger at the time, bnt that he shot him in a passion aroused as a result of an assault that had ended, and for no other cause, then, gentlemen, the defendant would not be justifiable in. thus killing him, but would at least be guilty of the offense of voluntary manslaughter.” In our opinion, the defendant could not reasonably expect a more favorable charge than the foregoing, and there is no merit in the objection that §§11 and 13 are confused by the language employed. The instruction just quoted is also objected to, because of the use of the words “at least,” and because it is contended that the law relating to homicides growing out of mutual combat was not applicable to the case. We do not agree to the contention that the use of the words “at least” amounted to an intimation of opinion on the part of the judge as to the guilt of the accused. It is a deprecatory rather than an inflammatory expletive. As a matter of fact, if the defendant shot the deceased .after an assault already ended and when he was in no possible danger, the court could have very aptly instructed the jury that the killing might be murder.

As to the remaining objections, it is well settled that mutual combat can exist where there is mutual intent to fight, though only one of the parties strikes a blow. We have not discussed the two* foregoing assignments of error more at length, for the reason that no complaint is made as to the instructions given by the trial judge on the subject of voluntary manslaughter, and the evidence fully authorized the verdict of the jury finding the defendant guilty of that grade of homicide. Certain evidence was admitted as to-statements alleged to have been made by the-deceased, which it is-contended were improper and prejudicial to the defendant. Mrs. Tigner testified that the deceased said, it was not done in self-defense; that Will Lee did not have to do it; that he regretted very much that it happened; that he wanted to live; that he had lots to live for, but was not afraid to die. He said that he would like to live for the sake of his old mother, who was blind. Upon, defendant’s counsel objecting to this evidence and moving to strike it out, the court sustained the objection by merely saying “yes,” and certified that he intended thereby to sustain the objection and was so understood by counsel. As no further ruling of the court was invoked, consensus tollit errorem; the plaintiff in error can not be heard to complain. Niagara Ins. Co. v. Williams, 1 Ga. App. 603, 57 S. E. 1018. We can not sustain the objection made to the admission of the evidence relating to dying declarations, upon the ground that the proper foundation had not been laid, inasmuch as it appears to show that there was ample evidence that ibe deceased was in articulo mortis and conscious of his condition. ■Certainly the evidence was sufficient to require the judge to submit to the jury, under proper instructions, as he did, the question as to whether the statements were really dying declarations. Nor did the court err in refusing the requests of the defendant’s counsel to charge upon the subject of dying declarations, because the legal principles contained in the -requests, so far as pertinent to the case, were fully covered in the charge of the court upon that subject.

The plaintiff in error insists that the court erred in refusing to charge the jury, as requested in writing, that “where a party has ■evidence in his power and within his reach by which he can establish a fact if it be true, or a condition if it exists, and omits to produce it, or, having more certain and satisfactory evidence in his power, relies upon that which is of a weaker and inferior nature to prove his claim, a presumption arises that the facts are not as claimed by him, or that the circumstances do not exist.” Movant contends that this charge -was pertinent and applicable and should have been given to the jury for the following reasons: “It appeared from the evidence of the witness B. O. Settles, as contended, that at the time when movant went into the office of the railroad company, just prior to the shooting, there was present, besides the deceased White, and the witness Settles, one John Taylor, who heard and saw everything that occurred between the deceased and movant up to the time of the shooting; that .both Taylor and Settles left the room prior to the shooting, Taylor leaving before Settles; that at the time the shooting occurred Settles was in such a position that he could not possibly have seen the parties; but that when Settles arrived on the platform outside the office where the difficulty took place, immediately afterwards, he found ‘Taylor standing just outside a window, commanding a view of the interior of the office. It thus appeared from the State’s own evidence that, the only eye-witness to the shooting was Taylor, who was present in the court-room at the time of the trial, but was never introduced as a witness. No reason was given by the solicitor-general why Taylor was not introduced in evidence. It affirmatively-appeared that Settles did not see the shooting, and that there was no eye-witness unless it was Taylor. Taylor was in no way connected with deceased or movant. In view of these facts, all of which appeared on the trial of the cause, and in view of the argument of counsel for the defendant thereon, movant contends that it was the duty of the court to submit to the jury the question whether Taylor did see the shooting, and, if so, to charge tbe rule of law embodied in the request quoted.” There is no merit in this ground of the motion, in view of the fact that the defendant could have introduced the witness as well as the State. There was no evidence showing that the witness Taylor actually saw the combat, or that his testimony would be.any more certain or satisfactory than that of the witness Settles; and the State, as any other party, has the right to rely upon the rule that the testimony of a single witness is generally sufficient to establish- a fact.

There is no merit in any of the remaining grounds of the motion for new trial, all of which relate to requests for charges which were not given by the court. The principle involved in each of these requests was fully and clearly presented to1 the jury in the charge as delivered, and no possible ground for complaint appears. The defendant might well have been convicted of the offense of murder. He certainly has no reason to complain of the leniency extended by the jury in'basing their verdict upon the theorji- advanced by his own statement as to the offense, and very fully and fairly presented by the judge in his charge to the jury.

Judgment affirmed.


text:
    597.
    Howard v. The State.
    Accusation of carrying concealed weapon, from city court of Sjdvester — Judge Park. June 12, 1907.
    Submitted July 18,
    Decided September 19, 1907.

      Payton & Hay, for plaintiff in error.

      J. H. Tipton, solicitor, contra.
   Hill, C. J.

In the absence of any written reguest for more specific instructions, the charge as a whole sufficiently and without material error submitted the issues involved; and the verdict is amply supported by the evidence. Judgment affirmed


text:
    608.
    HARRIS v. THE STATE.
    The evidence submitted authorized the charge made by the court upon the subject of voluntary manslaughter, and the verdict of the jury, finding the defendant guilty of that offense. The case is controlled upon the facts, as to part of the evidence, by the decision in Gann v. State, 30 Ga. 67. The verdict was not a compromise; but the evidence presenting three theories as the truth of the case, the right and duty of selection upon the jury was propertly exercised by them.
    Conviction of manslaughter, from Coweta superior court — Judge Freeman. June 11, 1907.
    Submitted July 18,
    Decided September 19, 1907.
    W. A. Post, W. C. Wright, for plaintiff in error.

      J. R. Terrell, solicitor-general, W. L. Stallings, contra.
   Russell, J.

The plaintiff in error was indicted for the offense of murder and found guilty of the offense of voluntary nianslaughter. He excepts to the judgment overruling his motion for new trial. Only two questions are made in the record. Did the evidence authorize the verdict; and did the court err in charging the jury upon the subject of voluntary manslaughter? It is insisted by learned counsel for the plaintiff in error that a new trial should have been granted on each of the grounds of the original motion, and especially on the ground set forth in the aprended motion which complained that the court erred in charging the jury the law of voluntary manslaughter, for the reason that under the evidence and the statement of the defendant this law was wholly inapplicable to the case. The rule may be stated to be that where the evidence, in every view, requires a finding of murder or of not guilty, the law of voluntary manslaughter should not be given in charge; though if the evidence and defendant’s statement clearly shows that he should have been found guilty of murder and he is only convicted of voluntary manslaughter, he will not be heard to complain, although the jury may have been instructed as to the law of voluntary manslaughter when it was not applicable to the case. In the present case the court properly instructed the jury as to the law of voluntary manslaughter. The charge upon this subject, which is excepted to as inapplicable to the .evidence, is as follows: “You will observe, gentlemen, that one of the material facts in the bill of indictment to which I call your attention is, that if it be true that Ben Harris did, in the county of Coweta, on or about the time charged in the.bill of indictment, unlawfully make an assault upon Pete Boozer, as charged in the bill of indictment, with a loaded gun, and if you. further believe that the assault was unlawful, yet, gentlemen, if you do not believe that it was made with malice, and if you believe that he shot and killed him, yet, gentlemen, if you do not believe that he killed him with malice, why, then, as before stated, you could not convict him of the crime of murder, but you could consider, gentlemen, whether or not under the evidence in this case he was guilty of the offense of voluntary manslaughter. Now manslaughter, the law says, is the unlawful killing of a human creature,- without malice, either express or implied, and without any mixture of deliberation whatever. Murder, you will note, is the unlawful killing with malice. Manslaughter is the unlawful killing without malice. In both cases the killing is unlawful and intentional. The deliberate intent to kill is the distinctive element that differentiates murder from manslaughter. In all cases of voluntary manslaughter the result must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied. Provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to ’free the person killing from the guilt and crime of murder. The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible; for if there should have been an interval between the assault or provocation given and the homicide, of which the jury in all cases shall be the judges, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge and be punished as murder. You will observe, gentlemen, from the definition I have given you, that to reduce a killing that is unlawful from murder to manslaughter, the law says, there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice. Now, an assault is defined to be an attempt to commit violent injury upon the person of another. A serious personal injury means an injury greater than a provocation by mere words, and less than a felony. So, gentlemen, you look to the evidence in this case and determine from the evidence whether or not this man Pete Boozer, the deceased, made an assault -upon the person of Ben Harris. If he made an assault, gentlemen, then determine whether or not it was a felonious assault. If he made an assault, gentlemen, but it was not a felonious assault, why, gentlemen, you could consider whether or not the assault made, if less than felonious, whether or not such an assault would justify the excitement of passion and exclude all idea of deliberation and malice, either express or implied. You can consider, gentlemen, whether or not the deceased, Pete Boozer, made an attempt to commit a serious personal injury upon the defendant, Ben Harris, an injmy, gentlemen, that would be less than a felony. You can consider whether or not there were other equivalent circumstances; that is, circumstances that would produce the same state of mind that an assault would produce. If you. should believe, gentlemen, that this excitement of passion that is supposed to be irresistible was thus engendered by an assau.lt> or by an attempt' to commit a serious personal injury, by an assault that is less than a felony, on the defendant, or if there were other equivalent circumstances that would justify the excitement of passion and exclude all idea of malice, either express or implied, and if the defendant acted under such a passion and not in a spirit of revenge, and shot and killed Pete Boozer, why then, gentlemen, he would not be guilty of murder, but, if not acting under circumstances of justification, he would be guilty of the offense of voluntary manslaughter. But to- reduce a crime from murder to voluntary manslaughter the killing must be -the result of that sudden, violent impulse of passion supposed to be irresistible; for if. there should have been an interval of time between the provocation and the homicide, sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder. So, gentlemen, in applying the law of voluntary manslaughter to this case, if you do apply it, you may look to the evidence, taking into consideration the statement of defendant, to see. what assault less than a felony was made by Pete Boozer upon Ben Harris; if not, see what attempt was made, if any, to commit a serious personal injury upon Ben Harris, if any was made, less, than a felony. Take it all into consideration, gentlemen. If such an assault was made, or such an attempt to commit a serious personal injury was made by the deceased upon the defendant, and it endangered that sudden, violent, impulse of passion which is supposed to be irresistible, and the defendant acted under the impulse-of passion, if the passion was thus engendered and he acted under it and shot and killed Pete Boozer under the influence of this passion, and not in a spirit of revenge, as before stated, he would not be guilty of murder, but would be guilty of voluntary manslaughter, if you find that the killing was not done under circumstances of justification, to which I will presently call your attention. So. that, gentlemen, upon this branch of the case, if you find that it is true that Pete Boozer is dead, and that the defendant, Ben Harris, killed him, as Charged in the bill of indictment, and you should find that he killed him intentionally, and that the killing was unlawful, and you find that the killing was the result of that sudden, violent impulse of passion supposed to be irresistible, and not.under circumstances of justification, and you further believe that the interval between the assault or provocation given, if any was. given, and the homicide was not sufficient for the voice of reason and humanity to be heard, of which time the jury in all cases shall be the judges, then, gentlemen, the defendant, under such circumstances, would be guilty of the offense of voluntary manslaughter.”

We have quoted the foregoing portion of the charge to the jury, which is excepted to, in its entirety, because we think it especially pertinent to the evidence and clearly expressed to the jury. And in view of the evidence in the case, the excerpt from the charge complained of is its own best answer to the complaint. We have very closely scrutinized the evidence and applied it to the above quotation from the charge, with the result that we are satisfied that voluntary manslaughter was involved in the case. The jury were properly instructed upon the subject, and their verdict, finding the defendant guilty of manslaughter, was authorized. The evidence in the case is very voluminous. It could be of no practical benefit to indulge in a long and tedious rehearsal of the facts submitted to the jury, and we have, therefore, contented ourselves with simply stating the conclusions deducible from the evidence. According to some of the testimony for the State, the deceased was standing still and looking downward when he was shot by the defendant. This evidence would authorize a verdict finding the defendant guilty of murder. Evidence from a number of witnesses introduced in behalf of the defendant is, that the deceased was attacking the defendant with an extremely dangerous knife, that he was in imminent danger of losing his life, and that the killing was necessary. This evidence, if believed by the jury, would have required a verdict of acquittal, especially in view of the fact that it was supplemented by proof of threats made by the deceased against the defendant, which had been communicated to the defendant. But in addition to all this, there was also evidence clearly showing a mutual intent to fight on the part of both the defendant and the deceased; that the parties had a sudden quarrel, and in the heat of blood, without any previous deliberation or malice and both being armed with and using deadly weapons, the defendant killed the deceased. If this evidence was preferred by the jury, a verdict for voluntary manslaughter is authorized. As the jury had to consider all the evidence and base their verdict upon such of the testimony as they preferred to believe, the charge of the court was clearly applicable.

Omitting two of the witnesses, whose testimony the jury may not have believed, the case, upon its facts, is controlled by the decisions in Gann v. State, 30 Ga. 67, and Caruthes v. State, 95 Ga. 343, 22 S. E. 837, which are very similar. It does not appear from any source that there was premeditation, and. the current of the evidence leads our minds, as it did those of the lower court and jury, to the conclusion that upon a sudden quarrel the parties fought upon the spot, the combat being with deadly weapons, no undue advantage was taken on either side, and' that the killing was voluntary manslaughter. As said by Judge Lyon in Gann v. State, whenever the killing is the result of irresistible passion alone “and not from any mixture of malice or deliberation, then the killing is not murder, hut is voluntary manslaughter, no matter how that passion may be aroused; for if there is no malice either expressed or implied, or criminal neglect, there can be no murder . . . When the provocation given is of such a character that it so excites the slayer with such . . passion that he can not resist its influence, and when the killing is caused by such passion and not solely on account of tbe provocation given,” the defendant is guilty of manslaughter and not murder. Any other presentation of §65 of the Penal Code would leave a large number of cases of homicide unprovided for, which are neither murder, involuntary manslaughter, nor justifiable. See 1 Hale’s P. C. 453; 1 Hawkins, 31 §§ 22, 29; 4 Bl. Com. 191. “Upon words of reproach or any sudden provocation the parties come to blows and a combat ensues, no undue advantage being sought or taken on either side, and death ensues under such circumstances, the offense of the party killing will amount only tp -manslaughter.” 1 Russell on Crimes, 585.

Judgment affirmed.


text:
    610.
    Lunsford et al. v. The State.
    Indictment for -larceny, from Worth superior court — Judge Spence. June 8, 1907.
    Argued July 18,
    Decided September 19, 1907.

      Payton & Play, for plaintiffs in error.

      W. E. Wooten, solicitor-general, J. H. Tipton, contra.
   Hill, C. J.

1. The verdict against W. B. Lunsford is wholly without any evidence to support it, and is therefore contrary to law.

2. The examination of two of the witnesses was "conducted by the trial judge in such manner as to violate the spirit of section 4334 of the Civil Code as construed by this court in Sharpton v. State, 1 Ga. App. 542, 57 S. E. 929; and a new trial is ordered for both defendants.

Judgment reversed.


author: Hill, C. J. Powell, J.,

text:
    621.
    Ragland v. The State.
   Hill, C. J.

In cases of alleged arson, where nothing appears but the burning, th'e law presumes that the fire was the result of accident or some providential cause, and the burden is on the prosecution to overcome this legal presumption and prove beyond a reasonable doubt .the existence of a criminal design.

In the opinion of a majority of this court, the facts and circumstances in the record do not even tend to show that the fire was a felonious one; and the verdict is without legal support,-and must be set aside and a new trial ordered. Judgment reversed.

Powell, J.,

specially concurring. I think that the circumstances introduced by the State, tending to show that the burning was not accidental but was felonious, -were sufficient to give “scope for legitimate reasoning by the jury,” and therefore sufficient to support the verdict as to that point; but I concur with the majority of the court in holding that the circumstances by which the State claims to have connected the defendant with the crime are too wholly inconclusive to justify a verdict of guilty.

Indictment for arson, from Campbell superior court — Judge Roan. May 20, 1907.

Argued’ July 18,

Decided September 19, 1907.

J. H. Longino, for plaintiff in error.

William Schley Howard, solicitor-general, contra.


text:
    16.
    DeLOACH MILL MANUFACTURING COMPANY v. TUTWEILER COAL, COKE AND IRON COMPANY.
    1. An express warranty may be created as a part of a contract of sale, by the use of such terms of description of the article sold as preclude any danger of mistaking or confusing that article with any other. An express warranty is exclusive of all warranties arising by implication.
    2. Where a manufacturer sells iron as Standard Alabama No. 1 Soft, and Alabama Foundry No. 2 Pig Iron, and the purchaser relies upon the description, there is an express warranty only that the articles sold shall be equal to the description. There is no implied warranty in such case that the brands of iron thus purchased shall be reasonably suited for any particular purpose. The description in the invoice by which the iron was bought and sold is equivalent to an' express warranty that the goods purchased are what they are described to be; and it is immaterial whether the purchaser knew the purpose for which the buyer intended to use the iron, or whether in fact the iron was suitable for the purpose intended by the buyer, provided the seller furnished the article described, the buyer in such ease having preferred an express warranty to those implied by law in the absence of express warranty.
    3. The admission of evidence of experiments is largely in the discretion of the trial court; and this discretion, unless manifestly abused, will not be controlled. For evidence of experiments to be admissible, there must be substantial similarity as to the essential and material fact affecting tho comparison'; if the comparison be predicated upon substantially different facts, the evidence will not be only irrelevant but will tend to confuse the jury.
    4. An implied warranty may be deemed to have been waived where the article or commodity purchased (after full opportunity for examination, discovery of its defects, and rejection) is accepted and used.
    Complaint,’ from city court of Atlanta — Judge Reid. March 10, 1906.
    Argued January 9,
    Decided October 3, 1907.

      Hines & Jordan, for plaintiff in error.

      DuBignon & Alston, contra.
   Russell, J.

The hill of exceptions calls for a review of the judgment of the lower court in striking the fourth' and fifth paragraphs of the defendant’s answer and in refusing a new trial. The paragraphs which were stricken (exceptions being taken pendente lite) were as follows:

“4. For further plea in this behalf, this defendant says, that on February 6th, 1904, this defendant purchased from the plaintiff, through its agents and brokers, Rogers, Brown & Co., one hundred and twenty-five tons of Standard Alabama Number 2. Foundry Pig Iron at the price of $10.00 per ton of 2240 lbs., f. o. b. cars furnace, Birmingham, Alabama; and on the same day, this defendant purchased from plaintiff, through its said agents and brokers, one hundred and twenty-five tons of Standard Alabama Number 1 Soft Pig Iron at the price of $10.50 per ton, 2240 lbs., f. o. b. furnace, Birmingham, Alabama. The amount mentioned in plaintiff’s petition was made and contracted by defendant solely for and on account of said iron, so sold and to be delivered to it by plaintiff, and without any other consideration therefor. Said goods were purchased by defendant, as plaintiff then well knew, for the purpose of being manufactured by this defendant at the foundry into various castings used by this defendant in machines made and manufactured by it in its factory in the city of Atlanta; and plaintiff, as a part of the contract of sale and consideration of said account) impliedly warranted and represented that said goods were fit, proper, and reasonably suited for such purposes. Defendant accepted and purchased said goods for the purpose of manufacturing the same into castings for machines so made and manufactured by it at its said factory, trusting in said representations and warranty of plaintiff, as plaintiff well knew. Said iron was not fit for said purpose, and was not reasonably suited therefor, the same being dirty iron and containing too little silicon and too much graphitic carbon, and the said iron has always been and is altogether useless and worthless to this defendant.
“5. For further plea in this behalf, this defendant sa3rs that it began using said iron in its said foundry in making said castings, on or about May 15, 1904. The output of its foundry was thirteen tons per diem. The necessary cost and expense to this defendant of making each, day’s output was $100.00. By reason of said iron, so sold and delivered by plaintiff to defendant, and so used by it in its foundry in making eastings as aforesaid, being dirty nor fit and reasonably suited for the purpose,of being, moulded, into said castings, the defendant buying said iron, from the plaintiff for the said purpose, and the plaintiff well knowing, that the- defendant purchased it for said purpose, one third of -said output was absolutely worthless and a total waste in the foundry, -whereby this defendant sustained a daily loss of $33.33 1-3 for the period -of thirty days, making a total loss to thi^ defendant of $1,000:00. This defendant was put to this necessary.expense and loss in attempting to use said.iron for the purpose,aforesaid, and,for the purpose for which the same was bought, and before this defendant knew that the defects in said castings were .due to the inferior quality of said iron. -Said loss- and damage to this defendant arise, naturally and according to the usual course of things, from the ■failure of the plaintiff to deliver to this defendant the iron which it purchased from the plaintiff, and such as the parties contemplated when such contract was made, as the-probable result of its breach. • Said loss and 'expense in attempting to use said iron and in converting the same into castings was due solely and directly to -said breach of plaintiff’s- contract to furnish to this defendant Standard Alabama Number 2 Foundry Pig Iron and Standard Alabama Number 1 Soft Pig Iron reasonably suited for the purpose aforesaid, for which this defendant purchased the same. This defendant recoups said loss and damage against the account of the plaintiff sued on in this case.”

The effect of the judge’s ruling in striking paragraph four was & holding that the contract was one of express warranty and therefore excluded any implied warranty. The fifth paragraph was stricken because, in the judgment of the court, the defend.ant’s damages, if any, were not to be measured by the rule which ■defendant was endeavoring to apply, if indeed they were not too :remote for recovery at all. '

We have no difficulty in sustaining the judgment of the lower ■court in striking paragraph four of the answer. Alabama Iron No. 1 Soft, and Alabama No. 2 Foundry, are as- apt terms of •description for two grades of iron, — as distinctive and as well -.understood by those engaged in the iron business, as the different grades of cotton are known by those engaged in the cotton business.. A term that is well known as conveying the idea of identity ancL individuality of characteristics, quality, and use, and is understood by buyer and seller as such (while this understanding is not always necessary) may import a warranty. Words of description do-not always import an express warranty, but they do when (as in. the contract in this case) they have reference-to an article of property whose features and qualities are so well known to those engaged, in the business of producing or selling such article that it can not be mistaken for any other thing. As wé have heretofore remarked in Crankshaw v. Schweizer Mfg. Co., 1 Ga. App. 363, 58 S. E. 222, it is often difficult to determine the line of demarcation between implied' conditions and such -description as will constitute ah express warranty and thereby exclude the warranty implied by law.. The determination of the question depends often on the fullness- and particularity of the description. If one contracts for quinine,, we have an article whose appearance, taste, and effects identify it and distinguish it from other articles; but an implied warranty would exist that the quinine was reasonably suited for the purposes-intended. But if I contract for Powers & Weightman’s quinine,, the express warranty on the part of the seller that the quinine-shall be of a particular manufacture or brand excludes any other warranty. In our opinion, the rule excluding all implied warranties where there is any express warranty is illogical, and sometimes works injustice; but it is the settled rule in this State and nearly all of the States of the Union. In Johnson v. State, 71 Ga. 470 (2), the court ruled that “it is only in the absence of an express warranty that resort can be had to an implied warranty * and where there was an express warrant}', the court could refuse to-charge on the subject of implied warranty.”

If the defendant had purchased 175 tons of iron, the law would have implied that it was merchantable and reasonably suited for all the purposes for which it was intended. Civil Code, §3555-But when the buyer'specified that he wanted Standard Alabama. No. 1 Soft Pig Iron and Standard No. 2 Foundry Pig Iron, the seller expressly warranted that the iron to be delivered would be those two grades of iron and no other, and the presence of the express warranty excluded any implied warranty whatsoever. The-very particularity of description created an express warranty. The-buyer relied upon his own judgment exclusively as to the purposes to which the particular iron selected was fit, and relieved the seller of any concern or responsibility, except that he should furnish the exact kind and grade of iron selected by the buyer, identified- in the manner indicated by the descriptive term used, and the custom of the iron trade. Americus Grocery Co. v. Brackett, 119 Ga. 489. It may be insisted that the fact that in the exercise of the right of choice we have purchased Powers & Weightman’s quinine, of No. 2 corn or Alabama No. 2 Foundry Pig Iron, should not relieve the seller from furnishing quinine that will cure, or corn that will make good white meal, or iron that will make good castings. The question is, did we buy an article whose identity was so well established by description that it could not be mistaken for anything else, and were we furnished with that article?

Standard Alabama No. 1 Soft Pig Iron- and Standard Alabama No. 2 Foundry Pig Iron were what the seller contracted to deliver and the purchaser to pay for. Standard Alabama No. 1 Soft Pig Iron is determined by fracture and inspection. The only question, then, that could arise was, was the iron that the DeLoaeh mills received Standard No. 1 and Foundry No. 2?

The court was right in striking the fourth paragraph of the answer, and we think the fifth paragraph would go with it; for, even if the damages sought are not too remote, the measure of damages which could be recouped would be the- difference between the contract price of the iron ordered and the market price of the iron delivered when it was delivered at Atlanta.

In view of the defendant’s admissions, it is profitless to discuss any of the grounds of error insisted upon in the motion, except those which pertain to the admission or exclusion of evidence which would illustrate the issue as to whether the iron ordered was that purchased. Under the admissions of the defendant the verdict rendered was inevitable, unless the defendant proved that the iron delivered was not Standard Alabama No. 1, and Standard Alabama No. 2, Foundry; and this it failed to do.

The admission to entitle to open and conclude is contained in paragraph three of defendant’s amended answer, and is as follows: “This defendant admits the purchase of the iron for the recovery of the price of which this suit is brought, from the plaintiff at the price set out in said petition, its delivery to this defendant, the making of the account sued on, that the plaintiff is the holder and owner thereof, that said account is past due, and that plaintiff is entitled to recover the' amount sued for, unless the defendant makes good its defense set out in said answer.” There was on]}’one question left in the case. Was -the iron delivered Standard Alabama No. 1 Soft Pig Iron and Standard Alabama No. 2 Foundry Pig Iron? The defendant having assumed the burden of proof, unless it showed that the iron delivered was not Standard Alabama No. 1 Soft Pig Iron and Standard Alabama No. 3 Foundry Pig Iron, the plaintiff was entitled to recover the unpaid balance of the purchase-price in full. If the defendant was not furnished'the grades of iron it bought, and proved-that fact, then it would be entitled to recoup as damages the difference between the market value at the time and place of delivery and the price paid. The defendant failed to show that the iron was not what it bought, and hence the question of damages could not arise.

In the first and second grounds of the amendment to the motion it is insisted that the court erred in refusing to let a witness testify" that Standard Alabama No. 1 and Standard Alabama No. 2 iron had been used in the same way as the iron bought from plaintiff, and made good castings, and that the iron bought from plaintiff did not make good castings. This testimony was addressed to the point i-n issue, whether the iron delivered was the iron bought; and had we been presiding, we think we should have allowed the testimony. But we are not prepared to hold that the judge erred in rejecting this testimony of experiment, especially in view of the admission of a prima facie case by the defendant and the further fact that the defendant had used all of the iron in its business. The admission of evidence of experiment, as held by this court in Hudson v. Atlanta & West Point R. Co., ante, 352, 58 S. E. 500, is a matter peculiarly within the discretion of the trial judge; and this discretion will not be interfered with unless it be apparent that it has been abused.

In our view of this case a discussion of the remaining grounds of the motion would be profitless. The errors assigned would not warrant a new trial. The verdict was right and should not be set aside. Under the admissions of the defendant a verdict in favor of the plaintiff was inevitable. Thé turning point in the case was, . whether die contract of sale included an express warranty, or did not. Upon this subject see Henderson v. Milling Co., 126 Ga. 279; Miller v. Moore, 83 Ga. 684 (1); Biddle on Warranties, § 111; Seitz v. Brewer’s Refrigerating Mach. Co., 141 U. S. 510; Bradford v. Manley, 13 Mass. 144; Bonekins v. Bevan, 3 Serg. & Rawle, 37; Henshaw v. Robins, 9 Metcalf, 83; Hawkins v. Pemberton; 51 N. Y. 198, et cit.; White v. Miller, 71 N. Y. 129. And in the well-considered case of Dounce v. Dow, 64 N. Y. 411, the facts are practically the same as in this case.

Even if the trial court had been in error in holding that the implied warranty of suitableness was excluded by the express warranty, still the judge did not err in refusing a new trial, because all implied warranties could well be deemed to have been waived by the defendant, who, instead of rejecting the iron, used it after full opportunity to examine it and ascertain whether it was merchantable and suited for the. purposes intended or not. Henderson v. Milling Co., supra, Judgment affirmed. .