text:
    9110.
    WILSON v. GRIFFIN.
    1. The giving of a replevy bond does not convert a foreclosure proceeding into mesne process. It requires a counter-affidavit to do this; and in this case, there being no such affidavit filed at the proper time, the court did not err, on motion of the plaintiff’s counsel, in entering up judgment on the bond, against the defendant and his sureties.
    2. Until such counter-affidavit is made and filed with the proper officer and at the proper time, there is no suit or case to return for trial; and therefore in this case there was nothing to submit to a jury. ■
    Decided July 9, 1918.
    Action upon bond; from Newton superior court—Judge Smith. July 17, 1917.

      Rogers & Knox, for plaintiff in error. King & Johnson, contra.
   Luke, J.

J. J. Griffin brought suit on a replevy bond against W. M. Benedict, as principal, and D. W. Wilson and E. W. Fowler, as securities thereon. The action was made returnable to the March term, 1917, of Newton superior court; and at the appearance term the defendants filed their plea and answer. When the case was called for trial at the July term, 1917, the plaintiff’s counsel abandoned their common-law action and stated to the court that they had a separate and- independent motion to make,, which they thought would dispose of the suit and obviate the necessity of a trial. The motion, which was in writing, states that the movant shows: “that on the 16th day of October, 1916, movant foreclosed a laborer’s lien upon cotton crop of W. M. Benedict, returnable to the January term, 1917, of the superior court of said county, for the sum of $190, and that the same was duly levied upon certain crops of said Benedict; that the said Benedict filed no counter-affidavit .to said foreclosure, and he has filed none to this date, nor has anyone else filed such an affidavit; that in order to release the property from the levy of said foreclosure, the said Benedict gave a replevy bond, with D. W. Wilson and E. W. Fowler as sureties, to pay the eventual condemnation-money in said case; wherefore, movant prays that he have a judgment against the said W. M. Benedict, as principal, and D. W. Wilson and E. W. Fowler, as sureties, for the sum of $190.” Counsel for defendant D. W. Wilson objected to the entertaining of this motion-and the entering of judgment thereon, on the ground that the bond was conditional, and the case should therefore be submitted to- a jury. He also 'asked permission to file a counter-affidavit to the foreclosure. The court declined to allow the counter-affidavit to be filed, and, in response to plaintiff’s motion, entered judgment in favor of the plaintiff;,to which Wilson excepted.

It will be observed from this brief statement of facts that - a levy had been made, the property replevied, and a replevy bond given, but no counter-affidavit was made and filed as required by paragraph 6 of section 3366 of the Civil Code (1910).- Confronted with' this .state of facts, the trial court properly entered up judgment on the replevy bond, against the principal debtor and his sureties, in the same manner as in appeal cases. Plaintiff in error contends that by offering to file a counter-affidavit when the case was called for trial, he sufficiently met the requirements of the Civil Code, § 3366, (6). In refusing the proffered affidavit the trial judge stated that it came too late; and in so ruling we think he was entirely correct. In the case, of Moultrie Lumber Co. v. Jenkins, 121 Ga. 721 (49 S. E. 678), the defendant had made a counter-affidavit and filed it with the levying officer, but it was ruled on the trial that the affidavit was void because sworn to before the defendant’s attorney. This was tantamount to holding that no counter-affidavit had been filed. The defendant then and there offered to amend by swearing to the affidavit before a competent officer. The Supreme Court held that the defendant did not have the right to amend his affidavit, and Justice Lamar, delivering the opinion for the court, said: “But until there is such an affidavit there is no case, nothing to be returned to court, no pleadings to be amended, and no issue to be tried. If, therefore, the counter affidavit was void, the defendant was not in a position on this hearing to have a ruling as to the validity of the foreclosure or levy” (italics ours). It will be noted that in that case the defendant ma.de an attempt to file with the levying officer a counter-affidavit at the proper time, but it was held void, and he was not permitted to amend so as to make a good and valid affidavit; whereas in the case at bar the defendant made no attempt to file such an affidavit with the levying officer at the proper time. Surely, therefore, the defendant in the instant case was in no better position (merely because he offered to file the affidavit on the hearing) than the defendant in the Moultrie Lumber Co. case, supra. The fact that the defendant offered to file a counter-affidavit on the hearing did not save him. The Civil Code, § 3366- (6), after reciting that any person, defendant, or creditor may file such- an affidavit, provides that the "affidavit shall form an issue to be returned [italics ours] to the court and tried as other eases.” It •is apparent that this language contemplates that the affidavit be filed with the levying officer as a condition precedent to his returning the c'ase to court for trial. "Until there is such an affidavit, there is no case, nothing to be returned [italics ours] to the court.” Moultrie Lumber Co. v. Jenkins, supra. It takes the affidavit to convert the proceeding into mesne process. In Giddens v. Jaskins, 7 Ga. App. 221 (66 S. E. 560), it was held that “In the absence of the counter-affidavit -the plaintiff was authorized, under section 2817 [now section 3367] of the Civil Code, to enter up judgment on the Teplevybond against the defendant and his surety in the same manner as in cases of appeal.” See also Tipton v. Conrad, 21 Ga. App. 593 (94 S. E. 815).

The only-other contention of the plaintiff in error is that the court erred in not requiring the plaintiff to make out his case by proper evidence, and in refusing to submit 'the case to a jury, -as the bond was a conditional contract. - The answer to this contention is found in the Giddens and Moultrie Lumber Co. cases, supra, to- wit: no counter-affidavit having been filed at the proper time, in order to arrest the proceedings, there was no “issue to be tried,” and consequently nothing to submit to a jury. In the Giddens ease the court entered up judgment upon the bond exactly as the court did in the ease now under review.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
    9250.
    ACREE v. BANDY, administrator.
    While it has been held that a judgment is not a technical estoppel as to any matter which it was not necessary to determine before the judgment could be rendered (Hunter y. Davis, 19 'Ga. 413; Bradley v. Briggs, 55 Ga. 354; Henderson v. Fox, 80 Ga. 479 (1), 6 S. E. 164), still, where the pleadings include an' issue which might or might not be taken as having been determined by the -verdict and judgment, one setting up the judgment by way of estoppel may show by extrinsic evidence that the issue thus included by the pleadings was then in fact actually litigated, and therefore was determined by the judgment. Johnson v. Lovelace, 61 'Ga. 62; Draper v. Medlock, 122 Ga. 234, 50 S. E. 113, 69 L. R. A. 483, 2 Ann. Gas. 650) ; Halliday v. Bank of Stewart County, 128 Ga. 639, 649 (58 S. E. 169) ; Harris v. Neil, 144 Ga. 519 (87 S. E. 661.) Where a plea of estoppel by a former judg- ( ment is ent.ered, and the record of the previous case shows that the issue at present involved was included among the issues made by-the pleadings in the former case, and thus might have been determined by the former verdict and judgment, and that evidence upon that particular issue was in fact submitted and a contest made thereon at the former trial, the issue must be taken as having been previously litigated, and a general judgment in the former suit becomes a bar by estoppel to a subsequent contest upon the same issue.
    Decided June 9, 1918.
    Complaint; from Gordon superior court—Judge Tarver. August 31, 1917.

      J. G. B. Erwin Jr., Neel & Neel, for plaintiff.

      Maddox, McCamy & Shumate, for defendant.
   Jenkins, J.

When this case was heretofore considered by this court, it was held that the trial judge erred in sustaining the defendant’s demurrer to the plaintiff’s petition. See Acree v. Bandy, 20 Ga. App. 133 (92 S. E. 765). The suit is an action by Mrs. Aeree against an administrator, on an account for alleged services rendered and articles of necessity furnished by the plaintiff to the defendant’s intestate, Elrod. The petition alleges, that the plaintiff rendered Such services and furnished such articles to the decedent -upon his promise to deed to her certain land, and that in accordance with such agreement the deed was actually executed; that some time after the making of the deed, the decedent sought to repudiate, it, and sold the timber thereon to another person; that the plaintiff thereupon filed a suit for injunction against Elrod and that person to prevent them from interfering with the land, and that Elrod filed an answer in that proceeding, in the nature of a cross-bill against the plaintiff, alleging that the deed made by him to her was void because “he was mentally incompetent to make said deed.” The petition in the, present case further states that the former suit “resulted in a verdict and judgment in favor of said administrator and the setting aside of petitioner’s deed, on the ground of mental incapacity of the said Reuben Elrod to make said deed.” This court in its former decision held that the present suit for services-and necessaries furnished to the defendant was not barred on its face by reason of the allegations contained in the petition, since the petition itself does not allege that any issue was made in the former case as to the consideration of the deed, but on the contrary states that the defendant’s intestate contested its validity only upon the ground that the maker was mentally incompetent to execute it, and that for this reason it was set aside and declared null and void. It now appears, however, that the plea and answer of the defendant in the present suit shows that not only was the issue of mental incompetency of the maker of the deed involved in the former litigation, but that one of the issues then made by the plea was the total failure of consideration for the deed; and the present record shows that in the trial of that suit evidence was introduced by the defendant in support of his contention under the issue now involved, and that probably one third of the entire amount of testimony adduced on the former trial was upon this particular point of contest. Upon the record in the former case being introduced at the present trial, and upon testimony showing that the issue raised by the pleadings in that suit as to a failure of consideration for the deed was then actually litigated and contested, the judge directed a verdict in favor of the defendant, upon its plea of estoppel by former judgment.

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

Judgment affirmed.

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


text:
    9296.
    Campbell v. Redwine Brothers.
   Jenkins, J.

1. A factor is one who not only receives goods and mercandise for hire, but, being entrusted with the possession, control, and disposal of the goods of Ms principal for a commission, has a lien for all advances made thereon and expenses incurred in respect thereto. In order to liquidate such demands, he may, as a general rule, and in accordance with the usages of trade, sell a sufficiency of the goods so entrusted (Civil Code of 1910, § 3502; Whigham v. Fountain, 132 Ga. 277, 63 S. E. 1115); but even though the factor’s agency be thus coupled with an interest, if there should be an express contract whereby the goods are to be held until a sale is authorized, the factor is bound by the terms of the agreement as actually made, and is liable to the owner for any damages which may be sustained by reason of an unauthorized sale. Wood v. Jones, 10 Ga. App. 735 (73 S. E. 1099).

Decided July 9, 1918.

Certiorari; from Fayette superior court—Judge Searcy. . September 19, 1917.

W. B. Hollingsworth, for plaintiff in error.

J. W. Culpepper, contra.

2. “A pledge, or pawn, is property deposited with "another as security for the payment of a debt” (Civil Code of 1910, § 3528; Citizens Banking Co. v. Peacock, 103 Ga. 171, 29 S. E. 752) ; and unless otherwise provided by contract, property so received can not be sold by the pledgee until after thirty days’ notice to the pledgor of his intention to sell; and the sale must be in. public, fairly conducted, and to the highest bidder. Civil Code, § 3530; Falliday v. Bank of Stewart County, 112 Ga. 461 (37 S. E. 721).

3. Under the evidence in this case the receipt of the cotton by the plaintiffs “in trust,” as security for a debt of the defendant, was a pledge or pawn. Whether a sale was authorized at the time the sale was made by the pledgees was a matter of dispute, under the testimony; there was no dispute that they failed to comply with the requirements of law governing the sale of property pledged; neither was it denied that the defendant received full credit for the actual value of the property at ' the time of the sale. Feld:' Where a suit is brought by a pledgee for the balance due on an obligation, after giving credit for the net proceeds from the sale of the property pledged, the defendant can elect to 'set up by way of recoupment a conversion of the property, by showing non-compliance with the rules governing such a sale; and the measure of damages is the difference between the amount of the credit allowed and the actual value of the property at the time of the sale. In a eaqe in which the jury is authorized to find that the sale was made at a time when it could be legally effected, non-compliance with the statutory requirements governing the sale will not authorize the defendant to recover by way of recoupment the difference between the valué of the property at the time of the sale and its value at a-subsequent date. Waring v. Gaskill, 95 Ga. 731 (2), 732 (22 S. E. 659); Harrell v. Citizens Banking Co., 111 Ga. 846 (36 S. E. 460).

Judgment affirmed.

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


author: Wade, C. J.

text:
    9538.
    GEORGIA RAILWAY & POWER CO. v. FREENEY.
    1. There was evidence to authorize the verdict.
    2. Evidence that a large number of passengers were in the car, and that in consequence the back platform was more crowded than the front platform, was admissible in behalf of the plaintiff, since it. was a circumstance tending to explain why he attempted to board the front end of the car instead of the rear end, which the defendant contended would have come to a full stop by the time it reached him.
    3. There was no error in the failure to instruct the jury that the plaintiff would not be entitled to recover if by the exercise of ordinary care he could have avoided the consequences of the defendant’s negligence; since the charge of the court expressly confined his right of recovery to the alleged sudden and unnecessary increase of speed and jerk of the car he was attempting to board, and it is apparent that the consequences of this negligence could not have been avoided by the plaintiff by the exercise of such care after the negligence became existent and operative.
    Decided July 9, 1918.
    Action for damages; from city court of Atlanta—Judge Reid. December 15, 1917.
    . Colquitt, Conyers & Latimer, for plaintiff in error.

      Little, Powell, Smith & Goldstein, contra.
   Wade, C. J.

The plaintiff sought to recover of the street-railway company damages for alleged personal injuries. The allegations of the petition show substantially that he received the injuries in the following manner: He was waiting at Lakewood Avenue crossing, a regular stopping point on the East Point car line, to board-one of the defendant’s cars. As the car approached ‘ the crossing it slowed down, and, although continuing steadily to reduce its speed, had not come to a complete stop when he attempted to. board 'it. Just as he was in the act of mounting the front end of the car it suddenly increased its speed, starting forward with a. violent, unusual, and unnecessary jerk, causing him to be precipitated to the ground with such force and in such a manner as to break his leg. The defendant introduced testimony to the effect that the car was moving too rapidly-for the plaintiff to prudently attempt to board it, ¡pid also that it did not start forward with á sudden and unnecessary jerk when he was in the act of mounting the front platform.

It suffices, in ruling on the general grounds of the motion for a new trial, to state, in passing, that we must adhere to the uniform practice of the appellate courts of this State in declining to reverse a judgment of the trial court refusing to grant a new trial upon the general grounds, where there is any evidence to support the verdict. In fact, able counsel for the plaintiff in error recognize ’ that we are powerless to do otherwise, since they say in their brief that “this evidence, while it may be enough to prevent a reversal for lack of evidence, is by no means satisfactory; and any prejudicial error in the trial ought to work a reversal of the case.”

On cross-examination by counsel for the plaintiff, the conductor in charge of the car, in response to the question, “How many people were on the car?” testified: “I had somewhere between 45 and 50 passengers. It was not crowded. The car I had would seat 53 passengers. As well as I remember I brought -51 passengers to town; that is when I took my register reading.” One of the grounds of the motion for a new trial is that the court admitted this testimony, over the objection that it was irrelevant. Regardless of whether the number of passengers was admissible because so closely related to the alleged injury as to constitute a relevant and illuminating circumstance connected with it, we think it is clear that the court did not err in admitting this testimony. The defendant, by its evidence, sought to raise an issue as to the conduct of the plaintiff in attempting to board the front end instead of the rear end of the car, which it was contended would have come to a full stop by the time it reached him; and, in explanation of his attempt to mount the front end, the plaintiff had the right to show that a large number of people were in the car, and that, due to this fact, the back platform was more crowded than the front platform.

Error is assigned because tire court failed to instruct the jury that “the plaintiff would not be entitled to recover if by the exercise of, ordinary care on his part he could have avoided the consequences to himself of the negligence of the defendant, if the defendant was negligent.” It is well settled that if the pleadings and the evidence raise an issrxe as to whether the injured person could have avoided the injury by the exercise of ordinary care, it is error for the trial judge not to instruct the jury thereon, even in the absence of a timely written request. See S. A. L. Ry. v. Bostock, 1 Ga. App. 189 (58 S. E. 136); Southern Ry. Co. v. Gore, 128 Ga. 627 (58 S. E. 180); Atlanta, Knoxville &c. Ry. Co. v. Gardner, 122 Ga. 82 (49 S. E. 818); Atlantic Coast Line R. Co. v. Canty, 12 Ga. App. 411, 417, 418 (77 S. E. 659). It is also true that where there is a general denial of the allegation that the plaintiff was free from fault, or was in the exercise of due care, it is not essential that this defense be specifically pleaded in order to require proper instructions to the jury in regard thereto. West End &c. Ry. Co. v. Mozely, 79 Ga. 463 (4 S. E. 324); Atlanta, Knoxville & Northern Ry. Co. v. Gardner, supra; Atlantic Coast Line R. Co. v. Canty, supra. In the case under consideration the plaintiff expressly alleged that he was free from all fault, attributing the injury solely to the negligence of the defendant, and the defendant in its answer denied this allegation, and thus, under the decisions just above cited', the pleadings sufficiently raised the issue whether or not the plaintiff could have avoided the consequences of the defendant’s negligence by the exercise of ordinary care on his part. The failure of the trial judge in this case to instruct the jury, in regard to the particular defense, that “if the plaintiff could by the exercise of ordinary, care have. avoided the consequences to himself he is not entitled to recover” (Civil Code, § 4426), will not, however, require a reversal; for no possible harm could have resulted to the defendant because of this omission, in view of the specific charge of the court which limited the plaintiff’s right of recovery to the happening or non-happéning of the sudden and unnecessary jerk which he alleged precipitated him to the ground, and eliminated altogether from their consideration any and all questions of negligence on the part of the defendant company as to the rate of speed at which its car was running at the time the plaintiff attempted to board or boarded the car. The court gave the jury the following explicit instruction: “When the plain-, tiff sought to get on the ear while it was moving, whether you believe he was guilty of negligence or not in doing so, he took the chances of the rate of speed at which the car was going, and if there was no negligent increase [italics ours] of the speed of the car and the plaintiff fell by reason of the speed at which the car was going when he sought to get on it, he would not have the right to recover. In other words, if the plaintiff saw the car moving, and sought to get on it while it was moving, and there was no negligent change of the speed of the car or negligent jerk of the car, he would not have the right to recover; he took the chances of the speed of the ear at which it was going when he sought to get on-it.” Under this instruction, the sole remaining issue left for the- jury to consider was whether the speed of the car was negligently changed, or whether there was any negligent jerk of the car at the time the plaintiff was injured; and consequently it would be wholly immaterial, under this instruction, whether the plaintiff was in the exercise of ordinary care or not, in attempting to board the car while it was in motion; and it is apparent from.* all the testimony in the case that if his fall was caused by any change of speed in the car or by a sudden and unnecessary jerk, he.could not have prevented the resulting injury to himself by the exercise of ordinary care after the sudden change of speed or sudden jerk, or between the time of the change or the jerk and his fall to the ground. .It is true the motorman of the ear testified for the defendant that there was no increase of speed at the time the plaintiff undertook to board the car, but it was “slowing up gradually,” and that “when the front end of the car passed Mr. Freeney he grabbed the front.end; when he grabbed it he fell;” and from this testimony it might have been inferred that the injury to the plaintiff was brought about by his failure to exercise ordinary care in attempting to mount the moving car, and therefore a charge as to the consequences resulting from the failure to exercise ordinary care would have been clearly applicable, if the Court had not entirely eliminated from the consideration of the jury all questions of negligence on accohnt of the degree of speed with which the car was moving at the time. Every act of negligence on the part of the defendant except that involved in the sudden and unnecessary jerk complained of, or in the'increase in the speed of the car, being wholly eliminated as a basis of recovery, it was not essential to instruct the jury that a failure on the part of the plaintiff to exercise ordinary care in attempting to board a moving car would defeat a recovery, since under the -charge of the court a recovery was expressly made to depend upon matters not within hi§ power and altogether independent of his care or negligence in mounting the car, and resulting from what thereafter followed. The rule of law requiring the plaintiff to exercise ordinary care -to avoid the consequences of negligence- on the part of the defendant was not applicable in this case, in view of the limited field to which the jury-was confined by the' instructions of the court. In Ga., Fla. & Alabama Ry. Co. v. Sasser, 4 Ga. App. 276, 283 (61 S. E. 505), the uncontradicted evidence showed that coincident with the jerk of the train the deceased fell headlong from .the door of a car and was immediately run over, and it was said by this court that “What a man could have done under these circumstances to have avoided the negligence of the engineer in jerking the train (after he became aware that the negligence vtas existent and operative) is beyond-our power to conceive; for the beginning and the end of'the whole casualty were included in the same twinkling of an eye.” See also Sparta Oil Mill v. Russell, 6 Ga. App. 293, 298 (65 S. E. 37); Savannah Electric Co. v. Lackens, 12 Ga. App. 765 (79 S. E. 53); Savannah Electric Co. v. Fosterling, 16 Ga. App. 196 (2), 198 (84 S. E. 976). In this case the testimony of the plaintiff was to the effect that he fell coincidently with the jerk of the car; and not only,does the evidence of the motorman, already referred to, not distinctly challenge this statement, but the court restricted the entire investigation by the jury to the determination only of whether there was in fact a jerk or sudden increase in speed which'brought about the injuries complained of.

The plaintiff in error relies upon the decision of the Supreme Court in the case of West End Ry. Co. v. Mozely, supra. In that case the following instruction was held to be erroneous, because the judge failed to qualify it by charging that the plaintiff must have used ordinary care to avoid the consequences of the defendant’s negligence: “If the plaintiff signalled the driver to stop, and the driver did not stop, so as to allow the plaintiff reasonable opportunity to alight with safety, but only slackened his speed, and the plaintiff, to avoid being carried beyond his destination, and availing himself of what opportunity was afforded him'to-..alight, endeavored to get off the ear while in motion and was thrown by a' sudden jerk of the ear, the defendant would be liable, provided you. believe from the evidence that the driver was negligent in not stopping the car altogether.” Under this instruction the negligence of the defendant consisted' in failing to stop the car at the plaintiff’s destination, and this negligence was necessarily apparent to him. It was, therefore, his duty to use ordinary care to avoid the consequences of the negligence of the defendant in taking him beyond his destination. The ruling in that case is inapplicable, however, to the case tinder consideration, since by the charge of the court a recovery was here made to depend upon the finding of the jury on the issue of fact as to whether or not the car gave a sudden jerk and the speed thereof was suddenly increased, while the plaintiff was boarding the car, and such jerk or increase of speed/was the sole proximate cause of his injury. If the motorman suddenly increased the speed of the car when the plaintiff was in the act of mounting it, such conduct on his part could not reasonably have been anticipated by the plaintiff, and it -is apparent that in the instant of its occurrence the' plaintiff could have done nothing, in the exercise of ordinary care, to avoid the resulting consequences.

'Judgment affirmed.

Jenlcins and Lulce, JJ„ concur.


author: Bloodworth, J.

text:
    9155.
    SALE CITY GIN & MFG. CO. v. DUKES et al.

    The plea of duress was insufficient; but tbe refusal to strike it was harmless to the plaintiff, the plea not being sustained by the verdict, which treated the note sued on as valid, for its full amount, but allowed the defendants certain credits, set up by another plea.
    Decided July 9, 1918.
    Complaint; from city court of Camilla—Judge Bush. July 5, 1917.
    Sale. City Gin & Manufacturing Company brought suit against B. H. Dukes and A. T. Jones on a promissory note, alleging that there was a balance due thereon of $334.95, besides interest and attoriiey’s fees. The defendants in their answer denied indebtedness in the sum alleged, and denied that “any legal notice sufficient to bind them for attorney’s fees” had been given to either of them. The 3d, 4th, 5th, 7th, and 8th paragraphs of the answer are as follows: “3d. Further answering, defendant B. H. Dukes respectfully shows to the court that the note was given by him to the Sale City Gin & Mfg. Co. under the following circumstances: Said Dukes was, on or about the time of the execution of said note, manager of the Sale City Gin & Mfg. Co., which was a partnership and not a corporation; that about said time other partners in -said company were contemplating a change in the management of said company, and defendant Dukes turned over his books to said other partners to be checked up, and said other partners claimed that the said Dukes was due to the company the sum of $534.95, and threatened defendant Dukes with criminal prosecution if he did not pay over the money or give a note for the amount. Said defendant Dukes at said time was fully confident that he didn’t owe any such amount of money, but, rather than be humiliated and embarrassed by any kind of prosecution, he gave to the plaintiffs the notes sued upon, relying upon the statements made by Mr. C. C. Ifinklea, who claimed to check up said books and who was representing the other partners in the said Sale City Gin & Mfg. Co. 4th. Defendant shows to the court that said note sued upon in the plaintiff’s petition was obtained under duress, and that it did not represent the free and voluntary act of this defendant.” For paragraphs 5 and 6, see thé decision, infra. “7th. Defendant further shows to the court that by reason of the foregoing facts the balance claimed to be due upon said noté' except said $53.05 is entirely without any'.consideration, and for said reason is void, and the same was received and obtained by the plaintiffs while the defendant was under duress, and was therefore void. 8th. Defendant A. T. Jones adopts the answer of B. H. Dukes and shows to the court that he is merely an indorser on said note sued upon, and that said Dukes does not owe said note, and that he is not liable 'thereon as indorser.”
    The plaintiff filed a written motion to strike the plea as being “insufficient in law to set up the. defense of duress,” and because “it does not allege that the threats used were urgent or immediate.” Paragraph 3 of the motion is as follows: “Plaintiff moves to strike the plea of A. T. Jones, surety, for that it is nowhere alleged'in his plea that he did not know of the alleged duress; and the said plea of the said A. T. Jones, for this reason, is insufficient in law, and it does not set up a legal defense against plaintiff’s petition.” The court overruled the motion to strike the plea. The trial of the case resulted in a verdict for plaintiff for $33.05; the plaintiff made a motion for a new trial, which was refused, and the movant excepted, assigning as error the rulings stated.

      PeacocJc & Gardner, for plaintiff. E. M. Davis, for defendants.
   Bloodworth, J.

(After stating the foregoing facts.) Under the rulings in Mallory v. Royston Bank, 135 Ga. 702, 706 (70 S. E. 586), Bond v. Kidd, 1 Ga. App. 798, 801, 802 (57 S. E. 944); Carswell v. Hartridge, 55 Ga. 412 (4), and Tolbert v. Caledonian Ins. Co., 101 Ga. 741 (28 S. E. 991), the motion to strike the plea of duress should have been sustained. This being true, the court erred in admitting evidence complained of which was offered in support of the plea. However, under the pleadings and the facts, these errors were harmless to the plaintiff. Paragraphs 5 and 6 of the plea are as follows: “5th. Defendant further shows to the court that since the execution of said note defendant has discovered that said books were not properly and correctly checked up, and this de~. fendant i-n said accounting was not given credit for various items to which he was entitled to credit on the books of said company, and that the amounts to which he was entitled to credit, and for which he did not receive credit, amount to $281.90; and when said amounts are properly allowed, defendant B. H. Dukes will owe to plaintiff only a small balance, to wit $53.05 principal, which sum, .with accrued interest,’defendant now tenders to plaintiff.” “6th. And defendant shows to the court that when he has received proper credits for the amounts to which he was entitled to credit there is only a balance due to the plaintiff on said note, of said principal $53.05 accrued interest on same.” This portion of the plea was not demurred to, and, without objection, evidence was introduced that “upon going over the books and checking up the amounts, there were items which witness detailed, amounting to $281.90, for which he [Dukes] was entitled to credit, and which should be deducted from the amounts of said note, and . . an item of $20, not set up in his plea, that he paid to Mark Poor for plaintiff, and for which he had received no credit.” Add these items, $281.90 and $20, and we have $301.90. Deduct this from the amount sued for, and. it leaves $33.05, the exact amount of the verdict. Thus it appears that the jury gave no consideration to the plea of. duress and treated the note as valid for the full amount thereof, and that the verdict was rendered on the evidence as applied to the other plea. The plaintiff’s objection to this evidence was made first in this court, and is too late. The court did not err in overruling the motion for a new trial. •

Judgment affirmed.

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


text:
    9174.
    Jelks v. Wesleyan Female College.
    Decided July 9, 1918.
    Complaint; from Bibb superior court—Judge Mathews. July-24, 1917. ‘ ■
    Wesleyan Female College sued Mrs. Jelks on a promissory note for $8,300 and interest, payable to the plaintiff and secured by her deed to certain realty. In her answer she denied indebtedness on the note. She admitted having signed “a certain promissory note which was probably in the amount sued for,” but alleged that at the time of signing it she did not know that the note was payable to Wesleyan Female College, the payee not being named. She admitted that she signed the security deed, but alleged that she was not advised at the time of signing it that the deed was made to Wesleyan Female College, that she was advised that it was to ba ''executed to other and different parties. She alleged further as follows: Defendant’s husband, T. M. Jelks, is a member of E. N Jelks Brick Company, a partnership, which owed to the Commercial National Bank a considerable sum of money. The bank insisted that this loan be reduced, and finally E. N. Jelks, brother of defendant’s husband, and J. J. Cobb, vice-president of the Commercial National Bank,- prevailed upon her to sign a paper calling for a loan of approximately $8,000, as she understood, which was to be applied at the bank in reducing the .debt of her husband and E. N. Jelks. ' She protested against mortgaging her property, but was advised by the above-mentioned parties that her failure to do so would mean bankruptcy for her husband and her brother-in-law. She never made application to Wesleyan Female College or to any other person for a loan, but certain papers were sent to her by E. L. Jelks and J. J. Cobb with a line marked which she was instructed to sign, and the remainder of the paper was not filled out; so she signecl the paper at the place indicated and sent it to Mr. Cobb at the Commercial National Bank, “who afterwards signed said paper as a witness.” She thought that the paper was being executed in favor of the Commercial National Bank. She never had any negotiations with Wesleyan Female College, and never received, saw, or handled any money realized from dhis alleged loan, or knew what disposition, if any, was made of it; nor did she ever realize any benefit from the loan. J. J. Cobb was vice-president of the Commercial National Bank and a trustee of Wesleyan Female College at the time of this transaction, and, in addition to being one of the trustees to whom was entrusted the actual management of that institution, he was chairman of a special committee known as the loan committee of Wesleyan, the duty of which was to pass on all applications for loans. He knew that the money derived from the deed to secure the debt was to be applied on the. debt of defendant’s husband, and knew that she never received or saw any of the money, and that no benefit accrued to her from this transaction; and the plaintiff corporation knew the same state of facts. Neither the plaintiff nor any of its agents turned over to defendant the amount sued for or any amount; and she does not know whether or not the plaintiff let any one have the amount sued for; and if so, it was done without authority from her.' The plaintiff knew all the facts recited above, and, as a matter of law, was charged with notice of these matters, inasmuch as its agent, J. Jv Cobb, knew them.
   Bloodworth, J.

1. The court did not err in sustaining the demurrer to the plea.

2. The plea having been stricken, the paragraphs of the petition were left undenied; and as they were properly.paragraphed and the averments therein were “distinctly and plainly made,” it was not necessary to submit proof of them. Civil Code (1910), §§ 5538, 5539, 5662; Jester v. Bainbridge State Bank, 4 Ga. App. 469 (5), 475 (61 S. E. 926); Ney v. Clere Clothing Co., 5 Ga. App. 325 (2) (63 S. E. 143); Methodist Episcopal Church v. Dudley Sash &c. Co., 137 Ga. 68 (4), 69 (72 S. E. 480).

3. The defendant’s plea having been stricken, the case was in default, and judgment was properly rendered at the first term. The act creating thé city court of Macon expressly provides for this. See Ga. Laws 1900, p. 144, sec. 4.

Judgment affirmed.

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

The defendant demurred generally and specially to the plea, and the court sustained the general demurrer and struck the plea.

W. D. McNeil, for plaintiff in error, cited:

Brobston v. Penniman, 91 Ga. 527 (2); Morris v. Georgia Loan Co., 109 Ga. 12 (2); Fouche v. Merchants Nat. Bank, 110 Ga. 827 (3); Bank of St. Marys v. Mumford, 6 Ga. 44; Sutton v. Aiken, 62 Ga. 734; Mercer v. Morgan, 136 Ga. 632; Veal v. Hurt, 63 Ga. 728; Freeman v. Mut. Bldg. Asso., 90 Ga. 190; Lewis v. Howell, 98 Ga. 428; Chastain v. Peak, 111 Ga. 889.

Hardeman, Jones, Park & Johnston, Harry S. Sirozier, contra, cited:

Park’s Code, §§ 5538-9, 5662; Fowler v. Rome Dispensary, 5 Ga. App. 36 (5); Bedingfield v. Bates Adv. Co., 2 Ga. App. 107; A. C. L. R. Co. v. Hart L. Co., 2 Ga. App. 88 (3); Thomas v. Siesel, 2 Ga. App. 663; Levy v. Bixler Co., 20 Ga. App. 766; Sloan v. Bank, 20 Ga. App. 123; Rood v. Wright, 124 Ga. 849; Third N. Bank v. Poe, 5 Ga. App. 114 (1b); Johnson v. Leffler Co., 122 Ga. 670; 9 R. C. L. 722; Carswell v. Hartridge, 55 Ga. 412; Park’s Code, § 4242; Ga. L. 1900, p. 144, sec. 4; Ney v. Clere Clo. Co., 5 Ga. App. 325.


text:
    8931, 8932.
    McFADDEN et al. v. WHITE CITY MANUFACTURING COMPANY; and vice versa.

    1. Where separate and distinct claims .arising ex contractu between the same parties are joined in the same suit, an instruction by the court which might reasonably tend to mislead the jury into believing that the claims are mutually dependent is erroneous.
    2. Two writings in identical form, containing the terms of an executory contract of purchase and sale of personalty by named parties, and each identified by the same contract number and purporting within itself to be a duplicate of another to be signed by the opposite party, can, when so executed, be connected together, without the aid of parol testimony, and thus meet the requirements of the statute of frauds.
    Decided July 10, 1918.
    Action for breach of contract; fróm city court of Athens—Judge West. May 8, 1917.
    The plaintiffs made two contracts for the sale and delivery of cotton to 4he White City Manufacturing Company,—one dated February 23, 1914, for 100 bale's of a fixed grade, of which 63 bales were accepted and paid for by the defendant, and the other for 200 bales of another grade, of which 97 bales were accepted and paid for. The suit was based on the separate breach of each contract, and the amount of the damages laid in each instance was the alleged difference between the contract price of the refused portion of the cotton and the sum realized from its sale as made by the plaintiffs for the defendant’s account. The defendant moved in' writing to dismiss the action, on the ground that the petition showed that the contracts lacked mutuality and did not in any way purport to bind the plaintiffs. This motion was overruled. In answer to the suit the defendant pleaded that the grade and charaeter of the cotton tendered by the plaintiffs in fulfillment of their own obligations under each of the alleged contracts wholly failed to meet the requirements therein, and that the defendant was for that reason authorized to reject the cotton so tendered., The jury found in favor of the defendant. The plaintiffs except to the refusal to grant their motion for a new trial; and the defendant, by cross-bill of exceptions, complains of the overruling of its motion to dismiss the petition. J

      Erwin, Rucker & Erwin, for plaintiffs.

      II. 0. Tuck, Shackelford & Meadow, Horace & Frank Holden, for defendant.
   Jenkins, J.

(After stating the foregoing facts.)

The first three grounds of the amendment to the motion for a new trial set out extended portions of the charge of the court and complain that the court thus repeatedly instructed the jury as if there was only one contract involved in the suit, and only one alleged breach, thus giving the jury to understand that if any of the cotton tendered under either contract did not come up to the requirements of the agreement, the defendant would thereby be relieved entirely, whereas the .jury were in fact authorized, under the pleadings and the evidence, to find in favor of the plaintiffs as to the tender made under one of the contracts, and against it as to the other. If such must be taken as the reasonable meaning and intent of the charge, the exception is good. The portion of the charge thus excepted to in the first of these grounds is as follows: "Among other things they allege in that petition that this defend-' ant, White City Manufacturing Company, is indebted to them in a certain amount of money, and that such indebtedness is due by reason of the fact that some time in 1914 tíiey entered into a contract with the defendant, White City Manufacturing Company, whereby they sold defendant a certain number of bales of cotton at and for a stipulated price; that under the contract they delivered part of the cotton to the defendant, and that there was a certain part of the. cotton that the defendant, White City Manufacturing Co., failed and refused to take, to wit, some 133' bales of the original purchase. They say that on account of the defendant,White City Manufacturing Company, failing and refusing to comply with its contract and take the balance of the cotton, that the cotton was left upon the hands of the plaintiff; that plaintiff then, under a provision of law, gave the defendant, White City Manufacturing Company, notice of its intention to sell this cotton that under the contract had been sold to the defendant, and still defendant refused to take it under the contract; that plaintiff used all ordinary care in getting the best price possible for the 133 bales of cotton, and did put it up and sell it for the best price obtainable at the time; that it failed to bring the amount that would have been due by the defendant if it had complied with the contract, and therefore they bring suit for the difference of the price of the cotton between the amount sold to the defendant, White City Manufacturing Company, and the price the cotton brought when it was sold for defendant’s account, and they ask a verdict at your hands for the difference.” The second ground complains of the following excerpt from the charge: “Therefore the only question and the only issue that you will determine is whether or not the cotton not accepted—that is, this 133 bales under the contract—came up to the contract by which it was sold and purchased. If it did, then the defendant is bound to take that cotton at the price they agreed to pay for it. If it did not come up to the grade and type by which it was bought, then he is not bound to take it and pay for it. So you will determine all that issue, and you will determine it from the evidence and all the facts and circumstances in the ease, and if you determine the 133 bales of cotton tendered by McFadden Brothers Agency to the defendant, White City Manufacturing Company, came up substantially to the type of cotton that he bought, then I charge you it would be your duty to find a verdict in favor of the plaintiff in this case for whatever he has shown is the difference between the price the defendant agreed to give for the cotton and the price they actually sold the cotton for.” The portion of the charge objected to in the third ground is as follows: “If you find for the plaintiff, assess damages in the manner I have given to you, by determining what the contract price was, and then determine what the cotton Was sold for, and plaintiff would be entitled to recover the difference between those two prices, whatever the evidence discloses to you those figures are.”

It will be seen that the judge did.not in the portions, of the charge indicated, nor did he elsewhere, distinguish the two distinct causes of action as laid by the declaration, and which grew out of the alleged breach of the two similar though independent contracts. It is true that before giving the contentions of the plaintiffs as set out in the first quotation from the charge, the judge told the jury that the grounds of the plaintiffs’ contentions were shown by the petition in the case, which they would have out with them and would have a perfect right to read. However, even if the judge’s explicit statement of the plaintiffs’ contentions can be taken as being thus qualified by the reference to the pleadings, still “it is one thing to state what a party contends, and another and a very different thing to state the law applicable to such contention” (Atlanta Railway Co. v. Gardner, 122 Ga. 82, 93, 49 S. E. 818); and therefore the question at last is whether the fact that the judge thus stated the contentions of the plaintiffs, and defined the issue in the case as being whether the 133.bales of'rejected cotton did or did not come up to the contract .grade, could have confused the jury into believing that if the evidence showed the defendant was authorized in rejecting the tender made under one of the contracts, ihis would have relieved it of liability under the other. In/other words, if the judge failed to submit the issue made under each of the contentions of the plaintiffs, then he failed to submit either, since it was not permissible to limit one by the other. Counsel for the defendant invoked the ruling made by the Supreme Court in Gainesville &c. Railway Co. v. Austin, 127 Ga. 120, 124 (56 S. E. 254), where it was held that it was not incumbent on the court to deal separately with the two counts in the petition as though two distinct and independent cases were on trial. In that case the two counts in a suit for personal injuries differed only in that the plaintiff alleged in one that he jumped from the car to avoid imminent peril, while in the other he alleged that he was thrown from the ear by an electric shock. In the opinion it is stated that the court by its instructions submitted to the jury both of these theories of recovery, and left them to determine which, if either, was sustained by the evidence. In that case, while the two counts set up separate causes of action, though based upon different theories of the same transaction, the court did not fail to submit each of the separate contentions to the jury, and the question as to whether they were made mutually dependent ■ by the terms of the charge does not seem to have been involved. In the instant case there áre two separate and distinct claims of a similar nature-joined by separate counts in the same action, and the plaintiff was entitled to have each of them determined independently of the other. Throughout the able charge of the trial judge not only were the two contracts, forming .the basis for the independent claims, treated and considered as one and the same, but they were thus specifically and repeatedly referred to, and that too in connection with the issue made upon the alleged breach thereof. In our opinion the jury might reasonably have been thus confused.

The alleged errors in the instructions complained of in the remaining grounds of the motion for a new trial are not such as are likely to be involved in the next trial of the case, and need not be discussed.

Under the ruling stated in the second headnote, we think the motion to dismiss the petition was properly overruled.

Judgment on the main hill of exceptions reversed; on the cross-hill affirmed.

Wade, O. J., and Lulee, J., concur.


author: Per Curiam.

text:
    9420.
    National Bank of Tifton v. Piland.
   Per Curiam.

This was an action in trover, growing out of the following facts: ’ The plaintiff, a farmer, sbld to Parrish, a cotton-buyer, for a cash consideration, a bale of lint cotton, weighing 512 pounds, the purchaser giving his draft on Savannah for it and loading the bale in a car with many other bales, bought from other persons, among whom was one Stubbs, to whom also he gave a draft upon Savannah. Both ^drafts were deposited in bank and were presented for payment. Stubbs J was advised by wire that the draft given to him had been dishonored, and he sued out bail-trover against Parrish, causing the ear of cotton to be seized. Thereafter Stubbs, Parrish, the levying officer, and the railroad agent agreed that the car. of cotton should be shipped to Savannah, and at the request of Parrish the railroad company issued its bill of lading to the National Bank of Tiftoñ, which hád no notice of the transaction. Parrish and Stubbs then presented to that bank the bill of lading, with attached draft on Savannah for $3,300. The bank collected the draft and paid Stubbs $2,000, and credited the balance to the account of Parrish. The plaintiff thereupon made demand on the bank for his bale of cotton; the^ demand was refused, and he instituted this action against it. At the conclusion of the evidence adduced at the trial (which- is substantially stated above) the court directed a verdict for the bank. The plaintiff made a motion for a new trial, which was granted. Eeld:

1. The universal rule of the appellate courts of this State that they will not disturb a first new trial, unless it is made to appear that no other verdict than .the one rendered could possibly have been returned under the law and facts of the case, applies in the instant case, for the followr ing reasons:

Decided July 10, 1918.

Trover; from Tift superior court—Judge Eve. December 5, 1917.

Fulwood & Ilargrett, for plaintiff in error.

J. S. Ridgdill, contra.

(а) In compliance with the provisions of the Civil Code (1910), § 4126, relative to trover actions, the plaintiff proved the following facts: (a) That he was a farmer, and that the bale of cotton was the product of his labor; (6) that the sale of the cotton was for cash, and that he was not paid for it; (e) that the property went into the possession of the defendant, either as principal or as agent of another, who had no title to it; (d) demand and refusal to surrender or pay the profits thereof; (e) the value of the property; all of which facts were uncontradicted, the defendant contenting itself with'the defense that it was a gratuitous bailee, and therefore not liable.

(б) “Whoever meddles with another’s property, whether as principal or agent, does so at his peril, and it makes no difference that in doing so he acts in good faith, nor in case of an agent, that he delivers the property tp his principal before receiving notice of the claim of the owner. If an agent takes the property of another without his consent and delivers it to the principal, it is a conversion, and trover will lie for the re'covery of the property or for damages, as the plaintiff may elect.” Flannery v. Harley, 117 Ga. 483, 485.

(c) “An agent, who for and in behalf of his principal takes the property of another without the latter’s consent, is as to him guilty> of a conversion, although, being ignorant of the true owner’s title, the agent may have acted in perfect good faith; and such agent may be sued in trover for the property, even after his delivery of it to his principal.” McConnell v. Prince, 12 Ga. App. 54, and numerous cases there cited. This principle has been followed in the late decisions of Coley v. Dortch, 139 Ga. 239; Wilkes v. Dixie Cotton Co., 143 Ga. 588, 589; Ocean Steamship Co. v. Southern States Naval Stores Co., 145 Ga. 798.

2. The judgment'granting a new trial, is therefore

Affirmed.

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


text:
    9435.
    Corbin v. McCrary.
   Wade, C. J.

1. The plaintiff in error in this case can not withdraw the writ of error, over the objection of his counsel, it appearing that the litigation is such that, if successful, it would result in a recovery of property on which his counsel would have a lien for fees earned in the case. Walker v. Equitable Mortgage Co., 114 Ga. 862 (40 S. E. 1010); Kimbrough v. Pitts, 63 Ga. 496 (2). The motion by the defendant in error to dismiss the writ of error Upon the written consent and request of the plaintiff in error, but over the objection of his counsel, is therefore denied.

2. In the defendant’s motion for a new trial certain statements made by-opposing counsel in his argument to the jury are complained of as being unauthorized by the evidence and prejudicial in their nature; and in this ground it is recited that “defendant’s counsel then and there objected to this argument as being unjust, prejudicial, and without evidence to support it; when the court replied, ‘Don’t go out of the record; the jury remembers what was proven.’ ” It does not appear that counsel then moved for a mistrial or requested the court to instruct the jury to disregard the argument objected to; and by failing'to make such a motion or such a request he waived the right to assign error thereon. “Improper argument is no ground for a new trial where there was no motion for a mistrial, and no request that the jury be instructed to disregard the improper remarks.” Ware v. Lamar, 18 Ga. App. 673 (3) (90 S. E. 364), and eases there cited.

3. The expressions complained of as conveying an intimation of opinion by the court as to what had been proved were, when considered with their context, clearly intended as a mere statement of the contentions of the plaintiff, and must have been so understood by the jury.

4. The instructions complained of in grounds 4 and 5 contained correct abstract statements of the law, and in the absence of the entire charge (which is not specified in the bill of exceptions or brought up in the record, and which does not affirmatively appear to have been reduced to writing and to be therefore available to this court), it must be assumed by this court that these instructions, when considered in connection with the remainder of the charge, were applicable to the case.

5. In the motion for a new trial it is contended that the case was not passed upon by a fair and impartial jury; for the reason that the jury, in deliberating upon the ease and in arriving at their verdict, took into consideration the unauthorized statements of counsel for the defendant, referred to above; and .it is sought to sustain this ground of the motion by affidavits from certain persons to the effect that after the trial several members of the jury asserted that their verdict in favor of the defendant was rendered because of statements of his counsel, which the motion alleges were unsupported by evidence. This ground is without merit. “The affidavits of jurors may be taken to sustain, but not to impeach their verdict” (Civil Code, § 5933) ; and if a verdict may 1 not be impeached by an affidavit of one or more of the jurors who found it, certainly it can not be impeached by affidavits from third persons, establishing the utterance by a juror of remarks tending to impeach his verdict. The affidavit of a party -^hat some of the jurors told him the verdict was caused by a mistake furnishes no cause to set it aside. Smith v. Banks, 65 Ga. 26 (2). Declarations of a juror made after the trial are not ordinarily admissible. Wade v. State, 12 Ga. 25, 28. “Nothing coming from a juror, either directly or indirectly, in the way of a narrative with respect to the manner in which a verdict was arrived at, will be heard to impeach the same.” Southern Railway Co. v. Sommer, 112 Ga. 512 (37 S. E. 735). See also May v. Atlanta, 9 Ga. App. 391 (2); Turner v. State, 20 Ga. App. 165, 167 (5). “Jurors can not impeach, their verdict, and affidavits by members of the jury or of counsel, as to their sayings after dispersing, can not be received for that purpose.” Nelling v. Industrial Manufacturing Co., 78 Ga. 260.

Decided July 10, 1918.

Rehearing denied July 30, 1918.

Eviction; fr.om Taylor superior court—Judge Howard. August 24, 1917. '

O. W. Foy, for plaintiff in error. J ule Felton, contra.

6. There was evidence to support the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9678.
    SCOTT v. ROME RAILWAY & LIGHT COMPANY.
    1. A public-utility corporation furnishing current for' electric lights to an individual user who constructs, owns, and maintains a connecting private line and all attached equipment, wholly free from the control or inspection of the corporation, can not be held responsible for damages on account of deterioration of his private line, .and consequent defects therein, resulting in injury to a trespasser coming in contact with it on private premises, not adjacent to any path in general use by the public, when the private line was not only properly constructed originally, but safely connected with the line of the company generating the electricity, and there was no knowledge on the part of the company as to any subsequent deterioration of the private line.
    2. Under the evidence adduced, the court did not err in awarding a non-suit.
    Decided July 10, 1918.
    Action for damages; from city court of Floyd county—Judge Nunnally. March 18, 1918.

      Harris & Harris, for plaintiff. Dean & Dean, for defendant.
   Wade, C. J.

John W. Scott, a boy 10 years old, brought suit by his next friend against the Rome Railway and Light Company, alleging that while picking blackberries in' an open woodland, he stumbled, and in the act of falling threw up his hand and caught a wire hanging near the ground, which connected with a main wire used by ¡the defendant for the purpose of conveying electric current which it generated, and thereby seriously and permanently injured his hand. The undisputed evidence showed that the wire caught by the plaintiff was originally placed in position by an individual user óf electricity, and was entirely constructed and maintained by the said user, without any inspection or control whatever on the part of the defendant company, which’ furnished by contract the current flowing, over it to supply electric lights on his premises. The superintendent of the defendant company testified in behalf of the plaintiff that his company sold electric power and “furnished the electricity” that went through the line of wire where the plaintiff was injured to 'the house of the individual user, who paid for the current consumed. He testified: “The company did not construct that wire from the. street, from the Black’s Bluff road, over to Averett premises. It was not built by the'defendant company. It took no supervision over the cohstruction of that wire, nor of the maintenance, nor of the inspection of it. It delivered the current to that-line for the use of the Averett property.” He further testified: “When a private party connects, places his own line, and connects with the wire, with the main line, we take no further supervision or control over his private wire. Simply deliver the current at the connecting point, and he maintains the wire, and the poles, and everything. Have nothing to do with the building or maintaining of it. That was -the case in this instance, up to and at the time the boy was injured. I did not know this wire was down or wanting in insplation, up to and at the time the boy was injured.” The evidence disclosed that the injury occurred not only away from the public highway, but also away from any path or road in general use by the public, and on private property on which the plaintiff was a trespasser. There is nothing to indicate even that the defendant company had any knowledge of the condition of the private line, over which-it had no control, and which it neither inspected nor undertook to inspect. There was testimony that the private line was originally constructed in a proper manner, and was therefore in a safe condition when the defendant company began delivering current over it to the individual user.

We think, under the testimony, the court properly awarded a nonsuit. The following rule is laid down in The Law of Electricity, by Curtis’ (1915),’ p. 618: “There seems to be some1 conflict of -authority on the question whether an electric company is .under any duty as to the safety of appliances owned and maintained by its customer but through which it conducts its current. The weight of authority -supports the view that, if the appliances of the customer are not constructed or owned by the company generating the electricity, the company is not bound to inspect the same, and it is not liable for an injury that is received by reason of defects in such appliances, where it has no knowledge of the defect, though the electricity which causes the injury comes from its plant. Thus, if one electric company generates a current and sells it to another for street lighting or distribution to the patrons of the latter, the generating company is not liable for the escape of the current due to the negligence of the latter in insulating or otherwise protecting its appliances.” ■ In 9 Euling Case Law, 1204, § 15, the rule is stated as follows: “It is generally held that where the electric' wires or other appliances which have caused personal injury are not owned nor controlled by the company furnishing the power it is not liable for the damage sustained. Thus where parties undertake to wire their own property, and then apply to' the light company to deliver a current to light the building, they must be assumed to take all risks resulting from the character of the wire which is put in the building and the method of construction which is adopted in putting it in. In such a case, since the company is only employed to deliver the current by connection with wiring already made by the individual who owns the property, its responsibility ends when the connection is properly made under proper conditions and it delivers the current in a manner which will protect both life and property.” There is nothing in the evidence in this case to suggest that the connection made with the line of the defendant company which furnished the current was not “properly made under proper conditions,” or that the defendant generating the current did not deliver the same in a manner which would (so far as such delivery was concerned) “protect both life and property.” “Where such power is simply furnished to a responsible party for use in a system of poles, wires, and appli- ' anees owned and controlled by such party and in proper condition to receive the current safely, the furnishing party - is not required to maintain inspection, or to see at its peril that such equipment is kept safe, but so long as not chargeable with knowledge of some defect therein, it may assume that such safety will be maintained, and the fact that in furnishing such power for arc lighting the seller undertakes to supply and maintain the necessary lamps and carbons does not changb the rule. In order to hold the seller liable it must appear that it continued to furnish and turn on the current after knowing that the purchaser had permitted the equipment to become defective.” Hoffman v. Leavenworth Light &c. Power Co., 91 Kan. 450 (138 Pac. 632, 50 L. R. A. (N. S.) 574). See also various cases referred to in the opinion in that case. Likewise see Fickeisen v. Wheeling Electrical Co., 67, W. Va. 335 (67 S. E. 788, 27 L. R. A. (N. S.) 893). “While there are cases which hold that a company which turns a powerful current on private wires strung along the highway is bound to inspect them from time to time to see that they are securely fastenéd and properly insulated, although they do not belong to it” (9 R. C. L. 1204), the injury in this ease did not occur on the highway or on account of any defect in the line of wire traversing the highway, but occurred away from it and because of a defect (not original) in the private line only.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Bloodwobth, J.

text:
    9189.
    Waller et al. v. Dawson National Bank.
    Decided July 10, 1918.
    Appeal; from Terrell superior court—Judge Worrill. July 7, 1917.
    J. E. Waller, a resident of Terrell county, died in August, 1915, intestate, and was at that time indebted to Dawson National Bank on a promissory note for $300, dated April 6 and due November 1 of the same year. In 1917, there being no administration on the decedent’s estate, the bank, as a creditor, applied tb' the ordinary of the county for letters of administration, the applicant alleging that the decedent left an estate of real and personal property of the probable value of $10,000. A caveat was filed by the decedent’s widow and his son, J. E. Waller, who alleged that the decedent left no estate that required administration, that the widow was entitled to a year’s support, and the entire estate left by the decedent was not as much as $500, in fact was of less value than $100. The trial of the case in the superior court, on appeal from the court of ordinary,, resulted in a verdict in favor of the bank. The caveators made a motion for a new trial, which was refused, and they excepted.
   Bloodwobth, J.

1. Even if it was error to admit in evidence a certified cppy of a petition for letters of administration, filed by J. E. Waller Jr., September 9, 1915, asking that he be appointed administrator on J. E. Waller’s estate, the error does not require a reversal, as he himself, testifying in his own behalf, swore: “I made application for letters of administration upon the estate of my father.”

2. As against the objection urged, it was not error to admit in evidence the execution against J. E. Waller.

3, 4. The excerpts from the charge of the court, set out in grounds 3 and 4 of the motion for a new trial, are not erroneous for any reason alleged.

5. The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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

1. The first special ground of the motion for a new trial is that the court erred in allowing the plaintiff to introduce in evidence, over the objection of- the caveators, a certified copy of a petition filed September 9, 1915, by J. E. Waller Jr., asking that he be appointed administrator on J. E. Waller’s e'state; the caveators objecting on the ground that “it could not be legal evidence in the case whether anybody applied for letters of administration, in this particular matter.” In the application referred to in this ground it is stated that the estate of the decedent consists of realty of the value of $850.

2. It is alleged that the court erred in allowing the plaintiff to introduce in evidence, over the objection of the caveators, “a fi. fa. in favor of a guano company against J. E. Waller, obtained in the city court of Dawson at the July term, 1915;” the objection being that “it had not been proven that the caveators knew anything about the suit, and did not show any notice to them.” This evidence was offered in rebuttal, and as a circumstance tending to show the purpose in recording deeds of Waller to his wife in July, 1915, and in returning the property in her name, instead of his .own name, for that year.

3. The court charged the jury: ' “In passing upon the issues you may look to any admissions made by either of the caveators, . . and see if there is any conflict, or seeming conflict, with the contentions they make here.” It is contended that this was error, because it expressed an opinion that the caveators made admissions, and that the admissions were in conflict with their contentions on the trial, and because there was no evidence on which to base such an instruction.

4. The court charged the jury: “If you believe, from the evidence, that J. E. Waller left an estate, or if you believe he had an estate before his death, and that he owed debts and he conveyed his property to his wife, to defeat his creditors, and that she holds the property now, arid if you believe her purpose in making this caveat—hers or the other defendant’s—was to prevent the administration, for the purpose of defeating the creditors in their' rights to reduce their debts to judgment and attempt to subject any property J. E. Waller may have owned at the time of his death or previous to the time of his death, or if you believe that he had fraudulently conveyed to Mrs. Rebecca E. Waller, so as to prevent administration and defeat the creditors, then you ought to find the issue against them.” It was contended that this was error, because it was not authorized by evidence, 'and because it did not limit the amount-of the estate, arid was not confined to that owned, at the time of the decedent’s death, or to creditors at the time of his death or to the creditors asking for administration. '

5. From the evidence it appeared that at the time of the decedent’s death he and his wife were residing together on a farm, on which they had been living for many years. By two deeds dated in 1903 and recorded about a month before his death, one reciting a consideration of $600 and the other a consideration of $1,100, he conveyed to her 405 acres and 84 acres of land. This land was returned for taxes in her name in the year of his death, valued at $4,000, with household goods, mules, wagons, and other personal property valued at $695, but had up to that time been returned in his name, and not as her property. A witness for the plain till testified that about two weeks before the death of J. E. Waller he went to Waller’s house and made a levy ,on the land on which Waller was living; that Waller “was in possession of that property, . . some five or six hundred acres; . . the place was stocked, and there were ten or twelve plows running on the place; . . he had been in possession of that land all his life. Land in that settlement is worth anywhere from $25 to $50 per acre. . . J. E. Waller looked after the running of the place and the renting out of the land on the place. He rented it out. I have rented from him some.” The caveators testified that the decedent had no property at the time of his death, that at the time of his death and for a number of years preceding it, as well as since that time, Mrs. Waller was in possession of the land in question, controlling it arid renting out a part of it, and during that time his deeds to her, conveying the land, were in her possession. She testified th,at át the time of the execution of the deeds she paid for the land with her own money that she had been saving; she could not tell exactly where she got it. An application by her for a year’s support out of the estate of J. E. Waller was introduced in evidence by the plaintiff.

Yeomans <& Wilkinson, for plaintiffs in error.

M. G. Edwards, B. B. J ones, contra.


author: Bloodwokth, J.

text:
    9192.
    Sweat v. Keystone Type Foundry.
    Decided July 10, 1918.
    Complaint; from Berrien superior court—Judge Thomas. August 11, 1917.
    Keystone Type Foundry (a corporation) sued A. C. Sweat, alleging: (paragraph 2) that the defendant is indebted to the plaintiff in the sum of $447.20 principal, and $142.26 interest, representing balance due on 18 promissory notes, 12 of which are each for $39.20 principal, and 6 for $67.90 principal, and a protested cheek for $49.74 and $1.50 protest fee, copies of which are attached to the petition; and (paragraph 3) that this indebtedness “accrued under and by virtue of a certain lease contract entered into between Keystone Type Foundry and A. C. Sweat under date of the 22nd day of March, 1912, by the terms of which petitioner herein leased to A. C. Sweat . . certain property described in éaid lease for the term of 24 months from the date of said lease, at the rent or hire of $1,682.35 for the use of said property, payable as follows, namely: cash $456.32, and the balance in install-’ ments payable at the office of A. C. Sweat, Nashville, Ga., as follows: 24 monthly'installments of ten notes for $67.90 each, and thirteen notes for $39.20 each, and one note for $37.43, and said lease distinctly providing that -no 'title to said property should pass by said lease, but that upon the faithful performance of all covenants and conditions of said lease, then the lessee should have (but not otherwise) the right to purchase said property upon the prompt payment to the lessor of the sum of $1.00; a complete copy of which lease is hereto attached, made a part of this paragraph and petition,” etc. It is alleged that the indebtedness described is past due, and the defendant refuses to pay it; and the petition concludes as follows: “Wherefore your petitioner brings its suit for the purpose of foreclosing its special, lien upon said property described in said lease, and obtaining a general judgment against all the property of defendant/ and to that end prays process,” etc.
   Bloodwokth, J.

1. The court did not err in overruling the demurrer to the petition.

2. Under the facts ,of this case it was not necessary for the plaintiff to make a demand on the defendant before bringing suit; nor was it necessary that suit be brought “within twelve months after maturity of the last installment of indebtedness.”

3. There-was no error in the rulings of the court complained of in the 3d ground of the amendment to the motion for a new trial, nor in the refusal of the judge to direct a verdict as complained of therein.

4. Grounds 4 and 7 of the motion for a new trial are but amplifications of the .general grounds.

5. The excerpt from the charge complained of in ground 5 of the motion is not objectionable as an “expression of an opinion that plaintiff was entitled to the amount sued for,” nor for any other reason urged against it.

6. The charge of .the court as to the form of the verdict, as set out in ground 6 of the motion, is not subject to the attack made upon it.

Judgment affirmed.

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

The defendant demurred to the petition, on the grounds: (1) that the petition alleges, in the second paragraph, that the indebtedness is a balance due on promissory notes, and in the third paragraph alleges that the defendant is indebted by reason of a lease contract; and it is impossible to tell whether the suit is on the notes or on the contract, and the plaintiff should be required to elect on which it will proceed; and (2) in the prayer of the petition the foreclosure of a special lien is asked; “this prayer should be'stricken and denied for the reason that there are. no allegations which entitle the plaintiff to a foreclosure of a lien, because the plaintiff should be required to elect whether it is suing On the notes or suing on the contract, or foreclosing a purchase-money lien.” The.demurrer was overruled.

In the defendant’s answer he denied the material allegations of the petition, and he pleaded failure of consideration and sought to. recoup damages. The verdict was as follows: “Wé, the jury, find in favor of plaintiff for $245.00 principal and $105.00 interest, also $49.70 principal, $1.50'protest fees, and 7% on check, also judgment in favor of said lien.” The grounds of the amendment to the motion for a new trial were in substance as follows:

I.. There is no evidence that a demand was made on the defendant for the balance due under the lease contract, and that he refused to pay.

2. The suit to foreclose the lien was not brought in 12 months after maturity of the last installment of indebtedness, and therefore the plaintiff was not entitled to foreclose its special lien.

3. “Movant contends that it was harmful error for the court to exclude the following motions and overrule each and every one o’f them.” Counsel for the defendant moved that the court direct a verdict for the defendant, because, although the suit was for an amount less than the amount of the notes introduced in evidence, which, according to the plaintiff’s pleading, were paid except the amount sued for, no credits were entered on the notes and it was not shown on which notes the indebtedness was due. Counsel for the defendant insisted that the plaintiff elect the notes on which the indebtedness was claimed. The court ruled that in the absence of direction, the payment should go on the first notes, and stated that the jury would be instructed accordingly.

4. The evidence did not authorize the item of $49.74 and protest fees thereon.

5. The court erred in charging the jury as follows: “You will find in favor of the plaintiffs and against the defendant for the amount sued.for, and that the lien be foreclosed as prayed, unless you believe from the evidence in the case that the defendant has established, and by the evidence established, that there was a defect in the articles sold and failure of consideration as .pleaded by the defendant.”

6. The court erred in charging as follows: “If you find in favor of the plaintiffs the total amount sued for upon the notes, the form of your verdict would be: 'We, the jury, find in favor of the plaintiffs, for so many dollars and cents principal, and so many dollars and cents interest on the notes sued upon; and then you will say by your verdict that you find that the plaintiffs have a special lien as prayed. So your verdict will be either, 'We, the jury, find in favor of the plaintiffs’ so many dollars and cents principal, and so many dollars and cents interest on the notes sued for, or, 'We, the jury, find in favor of the plaintiffs’, so many dollars and cents principal, and so many dollars and cents interest on thenotes sued for, ‘and the plaintiffs have a special lien as prayed; in any event they would have that, if you find in'favor of the plaintiffs.” It is contended that this was error because, if the suit was based on the notes, the plaintiff was not entitled to more than a common-law judgment, and would not have the fight to foreclose á special lien in this manner of procedure. N

7. The'verdict was error, for reasons set out.

8. The court erred in not instructing the jury that the burden was on the plaintiff to satisfy them, by a preponderance of testimony, as to'the amounts paid by the defendant, and the notes upon which the credits should be placed, thus giving them a method by which they could ascertain the amount, if any, due by the defendant to the plaintiff. , . ^ ■

Hendricks, Mills & Hendricks, for plaintiff in .error.

W. B. Smith, W. D. Buie, contra.


author: Beoyles, P. J.

text:
    9330.
    Baker v. City of Atlanta.
    Decided July 10, 1918.
    Action for damages; from Fulton superior court—Judge Pen-' dleton. October 16, 1917:

      T. J. Bipley, W. M. Bailey, for plaintiff.

      J. L. ■Mayson, D. Hewlett, for defendant.
   Beoyles, P. J.

The court overruled the general ground of the demurrer to the petition, but sustained all of the special grounds of the demurrer', and allowed the plaintiff ten days within which to amend his petition to meet these special grounds. To this ruling no exception was taken, nor is error assigned thereon in the bill of exceptions. Therefore the ruling that the petition was subject to these special demurrers became the law of the ease. The plaintiff, within the ten days allowed, filed a purported amendment to his petition. This amendment, however, was in all substantial respects merely a reiteration of the various allegations contained-in the original petition, and clearly failed to meet the objections raised by the special grounds of the demurrer. No further amendment was offered in the ten days allowed in the court’s order. Under these facts the court did not err in dismissing the plaintiff’s ease. Hinson v. Mutual Fertilizer Co., 19 Ga. App. 121 (91 S. E. 241).

Judgment affirmed.

Bloodworfh and Harwell, JJ., concur.


author: Broyles, P. J.

text:
    9355.
    Pappa v. Pope.
    Decided July 10, 1918.
    Action, for 'breach of contract; from Wilkes superior court— Judge Walker. November 7, 1917.
    - Pappa-sued Pope for breach of a contract to exchange land. From the petition it appears that on August 3, 1916, the plaintiff and the defendant made a written contract for the exchange of certain town lots and farm lands. Among the lots described are “38 lots located on Bast Fair Street and East End Avenue in DeKalb county, Ga.,” and the contract, after stating that Pappa “is the owner” of these lots, adds that “title to the above-mentioned property on East Fair Street and East End Avenue is in the name of the wife of the said Pappa, and the said Pappa obligates himself to deliver good title, to said property to said Pope.” It is stipulated that “The exchange of properties is to take place as soon as the titles can be examined. . . A reasonable time is to be allowed for the examination of the titles to ’the above-described properties, and if the titles are not good and can not be made good in a reasonable time, this' contract is to be cancelled and the parties restored to their original positions.” Pappa is to deliver to Pope the property described as owned by Pappa, free from liens or incumbrances, except a loan of $4,000 on 610 North Boulevard. The petition alleges, that after the contract was made, the petitioner “promptly put into the hands of defendant and his attorney and representative, Carroll Latimer, the tille papers to his property, and employed I. T. Irvin Jr. to look into the title of the defendant to the property of defendant. 3. Petitioner found no deficiencies of the title of said Pope which petitioner was not willing to waive, though’ the title was nob in all respects perfect or clear as to some of the property. 4. About September 8 defendant returned, some of the petitioner’s title papers, saying that the title was not satisfactory, but declined to state wherein the title was deficient or unsatisfactory. 5. Your petitioner straightway set about correcting any deficiency he could find, employing lawyers to search for such and correct them. Within thirty days and ■within, a reasonable time the corrections were submitted to the defendant and said attorney and representative, the title' of petitioner being then and theretofore good and sufficient and capable of being made good in a reasonable time. 6. Said representative Latimer, however, refused to accept the same, and said that defendant would in no event go forward with the trade, still not pointing out any defect or trouble that required remedy. 7. On September 25, 1916, said defendant wrote petitioner, stating, that he would not carry out said trade, and petitioner wrote in reply insisting that defendant should do so. 8. About October 15, 1916, the representative of petitioner, Mr. R. B. Blackburn, called upon said Mr. Latimer, the representative, and offered to prepare all necessary conveyances, and offered in petitioner’s behalf to execute conveyances to defendant and otherwise carry out the undertakings of petitioner in this behalf, and requested compliance by defendant, but said Latimer said it was unnecessary, because defendant would in no ease go forward with the trade, and would absolutely refuse to carry the same Out. 9. Said Latimer was agent and representative of defendant in the matter and authorized to speak for him. 10. Nevertheless, thereafter, on December ■—■, 1916, petitioner went to . . see defendant and again offered to carry out said trade, and requested defendant so to do on his part, when said defendant absolutely refused to do so or proceed further therein. 11. Petitioner .was at all said times and is now ready and willing and offers to carry out ail obligations resting-on him under said .contract, and to'deliver to said Pope the property mentioned in said contract as to be by him delivered, free of liens and incumbrances except $4,000' on 610 North Boulevard as therein specified: Taxes thereon for 1916 have been paid. 12. Said defendant, however, as aforesaid, absolutely refuses to carry out his obligations in the premises, or to convey or transfer to petitioner the property he bound himself to convey, but has broken his contract as aforesaid. 13. By said breach of contract defendant has injured and damaged petitioner in the sum of $6,602.75.” - Different items of damages are specified.
   Broyles, P. J.

Under the particular facts of the case the court erred in dismissing the amended petition on general demurrer.

Judgment reversed.

Bloodworth, J., concurs. Harwell, J., concurs du'bitante.

By amendment it was alleged: “25. The said contract was fully known and authorized by the said plaintiff’s wife,- Mrs. Katie ■ Pappa, and as to her property he acted as her agent and in her behalf, and she was ready and willing and had agreed to convey said property at any time to the said defendant, or otherwise as said defendant might direct, and petitioner was thus at all times ready, willing, and able to deliver good title to said property to defendant, title to which it was understood and agreed was in the wife of petitioner. 26. Petitioner’s said wife had, at all the times mentioned in the petition, herself good title to said property averred to be in her, she having been in adverse possession thereof under color of title, to wit, a deed of gift from petitioner, for -about twenty years, and those under whom she claims having had such possession under color of title for more than forty years, and there being no adverse claimants of title. 27. Petitioner had in himself, at all the times mentioned in the petition, good and merchantable [title?] to the property to be conveyed by him under said contract, and was ready] willing, and able to convey the same to said Pope,, having title to each of said properties by regular chain of recorded conveyances from the State down to' himself, and having also been in possession of each under color of title and adversely for more than seven years, and his predecessors in title having had such adverse possession for more than forty years under color of title. .28. During the month of August, 1916, after petitioner placed his conveyance, in the hands of defendant, the defendant employed said Latimer and the Atlanta Title Guaranty Company to investigate petitioner’s titles upon the records. As a result, defendant and his said agents requested of petitioner-rectification of the title above mentioned as being in Mrs. Katie Pappa, in three'respects'only, to wit: 1. It was complained that'three deeds in the chain of title, all dated prior to 1879, were defectively recorded, in that the caption was written DeKalb county and they were attested by an officer of Fulton county. 2d. That the eonveyánce claimed to be into one Jesse Boob, or Baub, was recorded as into Jerre Boob. 3d. That no proof was furnished as to the heirs of Jesse Baub. Nó other complaint was made of'this title, and no complaint at all of any other title at +his time. 29. Petitioner thereupon (though the first-mentioned complaint constituted no defect, he having said original deeds and they all being over thirty years old, and there being no" claim of any conflicting title) sought and found one of the subscribing witnesses and had said deeds probated for record, one in a few days and the others within a reasonable time. 30. As to the second complaint, he produced the original deed, which read' to Jesse Banb really, and the same was recorded accordingly. 31. As to the third defect, he procured the affidavit of . . a relative of Jesse Baub’s family and accounted for his heirs at law, and showing that none of them could claim the property; the same having been sold under order of the court of ordinary of DeKalb county, as appeared by the records, in 1897, as the property of Jesse Baub, to pay taxes and other debts, to George Hillyer, and passed from him to petitioner, and thence to petitioner’s said wife, all title of said heirs being thereby divested, independently of prescription, 32. Said Pope at no time made any objections to said title'on account of the title being in the wife of petitioner, or on account of ’her not having actually executed any deed or procured any order of the superior court, if such were necessary; and such contention was not made in the answer of defendant filed in this case, nor mentioned till the week preceding this November term of this court to petitioner’^ attorney and in argument before the court. Petitioner was given no opportunity to do anything in reference thereto, if anything be necessary to be done, but defendant’s making other objections aforesaid and making no complaint as to this waived any ground of complaint thereabout. . 33. Defendant, instead of making further complaint about said title then, during the month of September, 1916, said the title to the property described as being on Larkin street was not good, but, on inquiry by petitioner as to the trouble found, defendant refused to give any information thereabout, but declared he would in no event proceed with the contract, though petitioner offered to meet and exchange the deeds called for by their contract, and otherwise to perform on his part; all within a reasonable time as aforesaid. It was then that petitioner employed attorneys, for himself to endeavor to find any defect of which complaint might be made, as alleged in the petition, they finding none. 34. As to the other properties contracted to be sold, no complaint of the title was made prior to said absolute refusal by defendant to proceed, and pending .this suit defendant has in writing, through his attorney of record, stated that no defect in them was found or insisted on.”

The petition as amended was dismissed on demurrer, on the ground that it sets forth no cause of action.

Samuel E. Sibley, W. A. Slaton, for plaintiff, cited:

Cowdery v. Greenlea, 126 Ga. 786; 39 Cyc. 1981, 1983, 2079, 2081, 1541, 1984, 2089, 2096, 2103, 2105, 2110, 2112, 2114, 1988-9; Horne v. Rodgers, 113 Ga. 227; Booth v. Saffold, 46 Ga. 278 (2); Irwin v. Askew, 74 Ga. 582 (4); Mobley v. Lott, 127 Ga. 572; Civil Code (1910), § 4402; Wells v. Smith, 54 Ga. 263; Butler v. Frank, 7 Ga. App. 655 (2), 657; Hawkins v. Taylor, 61 Ga. 171 (2); Civil Code (1910), § 3609 (3).

W. Carroll Latimer, R. C. Norman, for defendant:

Maupin on Marketable Title (1907), 704, 710, § 281; Morgan v. Morgan, 15 U. S. 299; Danforth v. Perry, 20 Ill. App. 130; Cornell v. Andrus, 36 N. J. Eq. 321; Pfaff v. Cilsdorff, 50 N. E. 670; Wellmaker v. Wheatley, 123 Ga. 201; Civil Code (1910), § 4638; Tippins v. Phillips, 123 Ga. 415; Prater v. Sears, 77 Ga. 28; Marchman v. Fowler, 145 Ga. 682; Cowdery v. Greenlea, 126 Ga. 790; North Highlands Land Co. v. Holt, 144 Ga. 43; Civil Code (1910), §§ 3009-10, 4152; Cain v. Ligon, 71 Ga. 692; Sasser v. Sasser, 73 Ga. 275.


text:
    9370.
    Phillips & Son et al. v. Bagwell Motor Car Company.
    Decided July 10, 1918.
   Bloodwobth, J.

1. The ground of the motion for new trial alleging error “because the court erred in forcing defendant into trial without the witness I-Ioyt Bagwell” is without merit. It does not appear that the defendant made a motion for a continuance or postponement, or complied with the provisions of § 5715 of the Civil Code (1910).

2. The other questions raised by the motion for a new trial depend for decision upon a consideration óf a brief of- the evidence. While “the insertion of some questions and answers in a brief of evidence, where apparently necessary to present t\ie evidence with lucidity and precision, does not necessarily constitute a breach of the requirement that testimony be presented in narrative form,” a brief of evidence should not include objections to evidence, rulings of the court thereon, and colloquies between court and counsel; and where the purported brief is loaded with such unnecessary, irrelevant and superfluous matter, it will not be considered^ by this court, and no question depending on the evidence will be decided. A brief of evidence should “include, therein only material evidence.” Civil Code (1910), § 6093; Bunn v. Atlantic Coast Line R. Co., 18 Ga. App. 66 (88 S. E. 798); Fulton Lodge v. Roberson, 18 Ga. App. 586 (89 S. E. 1088); Whitaker v. State, 138 Ga. 139 (4a), 145 (75 S. E. 254).

Judgment affirmed.

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

Mortgage foreclosure; from city court of Hall county—Judge Wheeler. October 22, 1917.

O. N. Davie, K. D. Kenyon, for plaintiffs in error.

Sloan & Sloan, contra.


author: Harwell, J.

text:
    9388.
    Dalton Fruit and Produce Company v. Puryear.
    Decided July 10, 1918.
    ■ Action for damages; from Whitfield superior court—Judge Tarver. November 17, 1918.
    Carl Puryear sued the Dalton Fruit & Produce Company for damages in the sum of $200 on account of the death of a mule that he had rented to the defendant. He alleged that the defendant failed to exercise due diligence in the care of the mule, and caused its death by overfeeding. He introduced evidence to the effect that the mule.was in good condition when turned over to the defendant, and that it died because of having been overfed by the defendant’s agent. The defendant by its evidence sought to show that the mule was not overfed, and that the death of the animal did not result from negligence on the part of the defendant or its agent. The jury returned a verdict in favor of the plaintiff, for $102.90. The defendant’s motion -for a new trial was overruled, and the movant excepted. The only ground of the motion, other than the usual general grounds, was as follows: “Because during the consideration of the case by the jury after the case had been submitted to the jury for consideration by the court, after the jury had been out for twenty-four hours considering the case, the presiding judge erred when he called the jury before him and the following took place: ‘By the court: Mr. Foreman and gentlemen, have you agreed upon a verdict, or are you likely to agree? By juryman: No, sir, we couldn't agree. By the court: Without indicating how you stand, that is as to which number favor one side and which the other, you might tell me how you are divided. By juryman: 10 to 3. By the court: Is it a question of fact or a question of law that is_ causing the trouble ? By juryman: It is a question of evidence, question of fact. By the court: As to that I can't be of any assistance to you. I want to say this to you, gentlemen, you should discuss.this case carefully, review all of the evidence, go over it again, if necessary in order to fix in your minds what it is. I don't ask you or advise you to surrender any conscientious convictions that you may have relative to the truth of the evidence or what your verdict should be, but at the same [time] it 'is not improper for me to say No you that you should endeavor to get the other man’s viewpoint of the evidence, try to decide whether or not he might be right, and, after taking into consideration all of the facts as they have gone before you, and considering the case from every angle that you are able to do, try, if possible to do so conscientiously, to reach a verdict. I will let you retire, gentlemen, and renew your consideration of the case. You may retire.’ This was an undue intimation on the part of the court that the,two should get the viewpoint of the ten, and amounted to a practical direction to the jury to make a verdict.”
   Harwell, J.

1. The statement by the court to the jury, complained of in the motion for a new trial, was not erroneous for the reason assigned, namely, that it was an undue intimation that the minority should accept the viewpoint of the majority and make a verdict. Compare White v. Fulton, 68 Ga. 511 (3); Central R. &c. Co. v. Neighbors, 83 Ga. 444 (2), 447 (10 S. E. 115),; Parker v. Ga. Pac. Ry. Co., 83 Ga. 539 (8, 9), 548 (10 S. E. 233); Golatt v. State, 130 Ga. 18 (3), 21 (60 S. E. 107).

2. There was evidence sufficient to support the finding of the jury that the mule’s death was caused by negligence of the defendant’s agent in / overfeeding it; and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

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

J. J. Gopelancl, W. C. Martin, for plaintiff'in error.

Glenn & House, contra.