text:
    1041.
    CENTRAL BUILDING CO. et al. v. GEORGIA RAILWAY & POWER CO.
    The order oí the trial judge setting aside the first verdict and judgment in this case did not change the effect of his prior orders striking the plea to the jurisdiction, the demurrer, and the motion to dismiss the suit; and when the case again came up for trial it was proper for the court to dispose of it without reference to the stricken plea, demurrer, and motion to dismiss.
    Decided December 16, 1919.
    Certiorari; from Fulton superior court—Judge Pendleton. December 11, 1918.

      James & Bedgood, for plaintiffs in error.

      Colquitt & .Conyers, C. Bon Miller, contra.
   Jenkins, P. J.

The Georgia Railway & Power Company brought suit on a promissory note for $200, in tbe municipal court of Atlanta, against the Central Building Company, incorporated, the Carlton Supply Company, incorporated, and the Carlton Supply Company, not incorporated, but as a partnership composed of John A. Carlton and Thad Adams. The suit was also against J. G. Oglesby Jr., indorser, who was the payee in the original note. All the defendants filed their answers, and in addition the Carlton Supply Company, a corporation, the Carlton Supply Company, a partnership, and the copartners above named, entered a special plea to the jurisdiction, alleging that none of them were residents of Fulton County, but that they were all residents of Colquitt county, Georgia. These last-named defendants also demurred upon the ground that the petition did not allege that the copartners were residents of Fulton county, Georgia, and also entered a motion to dismiss, setting up their non-residence, and that service had not been perfected in accordance with law. When the case came on for trial before his honor J. B. Bidley, one of the judges of the municipal court, there was no appearance on the part of the defendants who had filed the special plea, the demurrer, and the motion to dismiss, and on motion of counsel for the plaintiff the plea, the demurrer, and the motion to dismiss were stricken, and orders taken accordingly. A verdict and judgment were also rendered on the note for the plaintiff against all the defendants as sued for. Subsequently an order was passed setting aside the verdict and judgment, but the record does not disclose that the orders striking the special plea, the demurrer, and the motion to dismiss were ever vacated. When the case again came on for trial before his honor L. Z. Eosser Jr., another judge of the municipal court, there was again no appearance for any of the defendants, and upon proof being made, verdict and judgment were rendered against all the defendants as sued for. The defendants who filed the special plea to the jurisdiction, the motion to dismiss, and the demurrer, applied for a certiorari upon the ground that the last verdict and judgment were rendered without any disposition being made of the special plea, the motion to dismiss, and the demurrer, and upon the further ground that their counsel were then in attendance upon the Supreme Court. It does not appear, however, that any motion for continuance upon such ground had been made, and the trial judge in his answer to the petition for certiorari states that he is unable to certify that such was the reason for their absence. The answer of the trial judge in the certiorari proceedings specifically denies the statement contained in the petition for certiorari to the effect that the final judgment in the case was rendered without any disposition being first made of the special plea, the motion to dismiss, and the demurrer, and, on the contrary, sets forth in his answer that they each stood stricken under the previous order entered by Judge Bidley. The petition for certiorari was dismissed by the judge of the superior court, and a new trial denied. Held: The action of the judge of the superior court is sustained, for the reason that it appears that at the time the case came on for trial there remained nothing in the case but the petition of the plaintiff and the answer of the defendants, and therefore the exceptions taken are without merit.

Judgment affirmed.

Stephens and Smith, JJ„ concur.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    10407.
    Martin, trustee, v. Taylor et al.

   Jenkins, P. J.

This was a suit- by the trustee in bankruptcy of the Macon Coal & Wood Co., a corporation, against Eden Taylor Jr., and Brown B. Taylor, to recover certain personal property purchased by the defendants from the corporation within two months previous to the adjudication of bankruptcy of the corporation. The basis of the plaintiff’s contention is that the sale- was fraudulent by virtue of the provisions of the bulk-sales law contained in sections 3226 et seq., of the Civil Code (1910). The ease was tried by the judge of the superior court of Bibb county, sitting as both judge and jury, under an agreed statement of facts, and he rendered a judgment in favor of the defendants. The suit as brought was for the following property: Eight mules, three two-horse wagons, one coal wagon, several parts of other wagons, eight sets of harness, one iron safe, all other office fixtures, barns, office buildings, scales, machinery, machine sheds, and coal and wood tools and implements that were then (at the time of the sale) on the premises of said company, the good will of said company, the rights of said company in and to a certain lease held by it on certain premises of the Macon, Dublin & Savannah Railway Company, expiring on December 15th, 1917; all the coal on the yard of said company at that time, being one ton; and. all the wood on the yard of said company at that time, being six and one quarter cords. The agreed statement of facts contains the following statement: “Negotiations for the sale extended ovevr the period from Eebruary 1st to Eebruary 12, 1917. An agreement as subsequently consummated was reached on the latter date. It was distinctly agreed that no coal nor wood was included in the sale, and none was to be bought by the defendants. At the time there was no coal nor wood on the premises. During the .week ending Eebruary 17, 1917, after the terms of sale had been agreed on, a carload of wood came in from a customer. All of that wood was sold by H. C. S. Einlay to the customers and trade of the Macon Coal & Wood Company, except six and a quarter cords. This remnant was on the yard when the defendants took charge, and they agreed to take the same at $18.75. That purchase was made individually and separately between defendant B. B. Taylor and H. O. S. Einlay, as individuals, and payment was made for the same by the individual check of said B. B. Taylor. The Macon Coal & Wood Company dealt only in coal and wood. On Eebruary 19, 1917, it had on hand no stock of merchandise except said remnant of wood. In the course of trade it is often the ease that as much as six and even as much as fifteen to twenty cords of wood are sold to one customer at a time. The defendants, since taking over the operation of the business, have frequently sold to one customer upwards of ten cords of wood at a time; as in addition to a retail wood business the Macon Coal & Wood Company and the defendant as purchasers of the same do a wholesale business in the way of supplying bakers, iron foundaries, brick yards, etc.” Held:

Decided December 16, 1919.

1. The provisions of sections 3226 et seq. of the Civil Code (1910) pertaining to the purchase and sale in bulk of any stock of goods, wares, or merchandise, being in derogation of common law, must be strictly construed (Cooney v. Sweat, 133 Ga. 511, 66 S. E. 257, 25 L. R. A. (N. S.) 758); Stovall Co. v. Shepherd Co., 10 Ga. App. 498, 73 S. E. 761); and while the words “goods, wares, or merchandise” are not to be taken in such a restricted sense as to exclude the usual and customary accessories used in connection with a business to which they are appropriate, whenever their transfer is included in the sale of any stock of “goods, wares, or merchandise” in bulk out of the usual or ordinary course of the business or trade of the vendor, so as to include substantially the entire business (Parham v. Potts-Thompson Co., 127 Ga. 303, 56 S. E. 460), still, in order for the provisions of the bulk-sale law to have application, there must be an intent between the parties to substantially effect a sale of a stock of “goods, wares, or merchandise,” and where such is not the case, the mere sale of fixtures and accessories alone would not bring the transaction within the scope and purview of the law referred to. Eor this reason, the court did not err in rendering judgment in favor of the defendants.

2. It being admitted by the parties to this case that under the terms of the sale it was distinctly agreed that no wood or coal was included, the mere fact that pending the negotiations a small remnant of wood amounting to six and one quarter cords unexpectedly came into the hands of the vendor, and that one of the defendants, as an individual, bought and paid for the same with his personal check, would not necessitate a different application of the rule, the trial judge not being compelled to find that such an ordinary purchase was in point of fact a fraudulent scheme or device by which it was sought to circumvent the operation of the statute, it further not appearing that the sale of the accessories was in anywise conditioned or dependent upon such separate and independent purchase of the remnant of vrood.

Judgment affirmed.

Stephens and Smith, JJ,, concur.

Trover; from Bibb superior court—Judge Mathews. February 87, 1919.

John B. L. Smith, Grady G. Harris, for plaintiff.

Hall & Grice, for defendant.


author: Stephens, J.

text:
    10429.
    Harris v. Warmack.
    Decided December 16, 1919.
    Complaint; from Catoosa superior court—J. E. Rosser, judge pro Rae vice. February 3, 1919.

      W. B. Mann, M. L. Harris, for plaintiff.

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

1. Where the owner of real estate listed it with a broker for the purpose of sale upon certain terms, and the broker failed to procure a purchaser upon such terms, but did procure one who entered into a contract directly with the owner upon different terms, part of the consideration of the. latter terms being a conveyance to the owner by the purchaser of a lot, but where such contract of sale was not consummated, by reason of the inability of the purchaser to convey the lot to the owner, because the purchaser had no title to the lot and could not obtain title thereto, the purchaser for this reason was not “ready, willing, and able” to buy upon the terms agreed upon by him with the owner, and the broker, not having procured a purchaser “ready, willing, and able” to buy upon any terms, did not earn any commission upon the alleged sale.

2. The verdict was demanded by the evidence, and it is therefore not necessary to consider any of'the alleged errors in the judge’s charge.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    10546.
    Odum Brothers Co. v. Adler.
    Decided December 16, 1919.
    Certiorari; from Fulton superior court—Judge' Bell. March 8, 1919.

      Julius D. Ward, Burress & Dillard, for plaintiff in error.

      Napier, Wright & Wood, contra.
   Stephens, J.

There being only issues of fact in this case upon which the evidence was conflicting the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    10584.
    ROSS v. GARRAUX.
    While ordinarily, upon the pendency of a motion for new trial, it is necessary to obtain an order of the trial judge, in order to extend beyond the statutory period the time within which a movant may present and have approved a brief of evidence, the necessity for such order and the approval of the brief of evidence within the statutory period may be waived by agreement between counsel, either express or implied. Counsel for the respondent may, by his conduct in open court in consenting to a motion for continuance made by the movant for the express purpose of perfecting and presenting for approval a brief of evidence beyond the statutory period, and by his subsequent acts, be considered as having waived the necessity for an order extending such time, or as having waived his right to insist upon the filing and approval of the brief of evidence within the statutory period.
    Decided December 12, 1916.
    (Certiorari granted by the Supreme Court.)
    Motion for new trial; city court of Atlanta—Judge Reid. March 18, 1919.

      Hill & Adams, for plaintiff in error.

      Brewster, Howell & Heyman, James H. Warren, contra.
   Stephens, J.

Plaintiff in error filed a motion for new trial in the city court of Atlanta. The trial judge granted a rule nisi thereon, setting the hearing for Saturday, November 30, 1918, in term time. There was no order respecting any extension of the time for filing for approval a brief of the evidence. IJpon the call of the motion on the date set the following occurred, as is set out in the bill of exceptions: “Counsel for plaintiff appeared in open court, and when said motion was called made the following statement and request: ‘May it please your honor, we have ho brief of the evidence in this case, and have not been able to prepare the amended motion for new trial, because the court reporter is ill, suffering of influenza, and has not written out the record. We do not know when he can furnish the record in this case. We want the time extended until he recovers and writes out the evidence and charge;’ whereupon the judge looked to Mr. James E. Warren, attorney of record for defendant in the case, for an expression as to what should be done. Mr. Wa/rren was present in open court and stated that he had no Abjections. The judge passed the motion without setting it for a day certain, and without comment, which plaintiff understood to be an extension of the time requested. No written order was presented or signed, but the above conversation took place in open court on the day set in the rule nisi for the hearing of said motion for new trial.” (Italics ours). After repeated continuances and happenings as hereinafter set out, the motion came on to be heard on Saturday, March 8, 1919, when counsel for the movant presented for approval a brief of the evidence. Upon objection then filed by other counsel for the respondent to the approval of the brief of the evidence, and a motion by him to dismiss the motion for new trial upon the ground that no brief of evidence had been filed or approved at the trial term and within the time allowed by law, the judge dismissed the motion for new trial. This action of the trial judge is before this court for review.

While a brief of evidence in a motion for new trial must be presented to the trial judge for approval within the time fixed by statute, unless the time for such presentation is extended, it is not always necessary that such extension of time be provided for by an order of court. An approval of the brief of evidence by the trial 'judge within the statutory period allowed for its presentation is not jurisdictional, and may therefore be waived by the respondent. Such waiver may be by express agreement between counsel or parties, or implied by their conduct in the progress of the case. In the case of Cook v. Childers, 94 Ga. 718 (19 S. E. 819), it was held: “By arguing the motion for new trial, without moving to dismiss the same for failure to file a brief of evidence in due time, the respondent in the motion waived this matter of objection, and consequently it is not good as a ground of exception to the judgment granting a new trial.” In the case of Moxley v. Kinloch, 80 Ga. 46 (7 S. E. 123), it was held: “Though, in a consent order, the privilege of filing a brief of evidence be limited to a specified day in vacation, yet if after the day has elapsed counsel for both parties agree in writing that the brief is correct, entering their agreement on the brief and signing the same, and counsel for respondent in the motion for new trial then, at the request of counsel for movant, file the brief, thus co-operating in the business and with no express reservation or notice of any purpose to insist on time as of the essence, this is a waiver of the right to insist upon it, both as to filing and approving the brief; and such filing, together with a subsequent approval by the judge, will suffice as a substantial compliance with the order.” Chief Justice Bleckley, in the opinion in that case, said: “Time, when of the essence of anything, may be waived by the parties; and counsel are competent to make waivers for their clients in matters of practice. If they can make express ones they can make implied ones; if they can waive by agreement, they can waive by conduct. Here, if there was any purpose not to acquiesce in this as a compliance with the order, notice should have been given of it, or else the counsel should have declined to co-operate with counsel for the motion. The consequence of that co-operation and failure to give notice led'to the incurring of expense and trouble and labor in following up this motion. If they intended to take advantage of the delay, then was the time to make it known, so that future conduct might not be rested upon faith in their acquiescence. We think that good faith between opposing counsel in the conduct of cases requires that notice shall be- given, under such circumstances, of non-acquiescence. This is no effort to give effect to an agreement or consent in parol. It is a consent from conduct, and the witness as to what was done is, himself, one of the counsel for the respondent. We get information of all this from what he testifies, and ¿s it comes up in the record from his testimony. There is no effort to prove any of these facts from anybody but the counsel himself; and though, as it appears neither of respondent’s counsel had any purpose or intention to waive, yet they did not make known that secret or concealed state of mind; and those not admitted to their consciousness could not be aware of the meaning they attached to their conduct, and therefore their conduct must be judged by the meaning which would ordinarily be attached to it by those who were external to their consciousness. It is not designed to impute to them any purpose to mislead or deceive; but we say that they must be judged by conduct as it appeared to those who were outside of their consciousness, and not by what may have been the internal purpose or intent.”

In Mayor &c. of Brunswick v. Davenport, 131 Ga. 465 (62 S. E. 584), where it was held that a strict compliance with the statute as to the filing of a brief of evidence in a motion for new trial may be waived by consent of counsel, Justice Evans, writing the opinion of the court, said: “A failure to file the brief of evidence in term or within the time limited by the term order is ordinarily a good ground for dismissing the motion. Taliaferro v. Columbus R. Co., 130 Ga. 570 [61 S. E. 228]. But the filing of the motion and. the filing of the brief . . stand upon very different footings. As was observed in Hilt v. Young, 116 Ga. 712 (43 S. E. 76), ‘The requirement that a motion for a new trial shall be deposited with the clerk, so that it may be put upon record and be subject to examination, is one in which others than the litigants may be interested. The judgment under review may be one affecting title to property. One having no notice of the pendency of the motion might purchase the execution and suffer loss thereby/ It is the pendency of the motion which affects third parties with notice. The brief of the evidence in the case is a necessary accompaniment of the motion—the motion is not complete without it. The essential office of the brief of evidence is to illustrate the merit of the grounds of the motion. The movant is required to present to the court a substantial photograph of the case, in order that the judge may determine whether the grounds of the motion show errors of such a character that a new trial should be had. The public are not interested or concerned with the merits of the motion. A filing of the brief of the evidence has never been recognized by this court as a jurisdictional fact. Thus it has been ruled that when a motion for a new trial has been fully argued, it is too late to move to dismiss it because the order fixing the time for the hearing has run out. Davis v. Howard, 57 Ga. '607. Again it has been held that ‘by arguing the motion for new trial, without moving to dismiss the same for failure to file a brief of evidence in due time, the respondent in the motion waived this matter of objection, and consequently it is not good as a ground of exception to the judgment granting a new trial/ Coolc v. Childers [supra]. A respondent in a motion may insist upon a strict compliance with the law in respect to the filing of the brief of evidence, and, after the time limit for filing the same has expired, is entitled to move for a dismissal of the motion, unless he has expressly or impliedly waived the filing■ of the brief of evidence at an earlier time.” (Italics ours.)

It seems therefore clearly established that counsel by their conduct may impliedly waive the time for filing a brief of evidence in a motion for new trial. Conduct of counsel for the respondent'in' the case now before us, it seems, amounted to a waiver' of the ¡respondent’s right to insist upon the filing of the brief of evidence within the statutory period. On Saturday, November 30, 1918, the date set for the hearing of the motion for new trial, counsel for movant, in open court, made the statement above quoted and attributed to him, in which he asked for a continuance of the ' motion until he could prepare a brief of evidence from the notes to be furnished by the official stenographer, who was at that time ill. Although counsel for respondent stated only that “he had no objections,” this amounted to an agreement at that time to continue the case, and extend the time indefinitely, even beyond the statutory period, for filing and presenting for approval the brief of evidence, and counsel for movant so understood it. The court in pursuance thereof continued the hearing without setting it for a day certain, but passed no written order in the case. On Saturday, January 4, 1919, which was the last day of the term, and more than thirty days from the trial, counsel for movant, who had then prepared what he claimed to be a brief of the evidence, presented it for the judge’s approval. The latter suggested that counsel submit the purported brief of evidence to counsel for the respondent, which counsel for movant immediately did. So far as the record discloses, counsel for the respondent made no objection and did not refuse to accept the brief of evidence then submitted to him by counsel for movant. Under the rules of the court, as stated in the bill of exceptions, all motions not disposed of upon the date set are automatically carried over until' the next call of the motion docket. Afterwards, on the next call of the motion, on Saturday, January 11, 1919, upon an announcement of ready by counsel for movant, counsel for the respondent requested that the hearing be passed, which request the judge granted. No objection to the brief of evidence was then made by counsel for respondent. On the following Saturday, January 18, 1919, counsel for respondent, after an announcement of ready by counsel for movant, again requested a postponement of the hearing, which request the court again granted. No objection to the brief of evidence was then made by counsel for respondent. On Saturday, January 25, 1919, when the motion was again called, the court passed the motion on account of the illness of counsel for movant. No objection of any kind was then offered by counsel for respondent. Finally, on Saturday, March 8, 1919, upon the call of the motion, both sides announced ready. Counsel for movant then presented a brief oí the evidence for approval. Counsel for respondent thereupon objected to the approval of the brief of evidence, upon the ground that the same had not been presented for approval within 30 days from the date of trial and within the term at which the motion for new trial was filed, the term having expired January 4, 1919, and on this ground moved to dismiss the motion for new trial, which motion the court granted.

Counsel for respondent, upon the first call of the motion, if he did not expressly agree and consent thereto, at least gave counsel for movant to understand that he would waive the filing and approval of the brief of evidence within the statutory period, and having later allowed counsel for movant to submit to him a brief of the evidence, and thus, by his conduct, acquiesced in such understanding, and, in the language of Judge Bleckley in the case of Moxley v. Kinloch, supra, having “co-operated in the business,” the respondent was in good conscience estopped from moving to dismiss the motion for new trial upon the ground that no brief of evidence had been presented for approval within the time allowed by law.

In the case of Moxley v. Kinloch, supra, the only semblance of an agreement between the parties occurred after the time for presenting for approval the brief of evidence had expired, and consisted in an agreement between counsel as to the correctness of the brief of evidence and the filing, by agreement, of the same with the clerk. While in the instant case the subsequent conduct of counsel for respondent did not as decisively “co-operate in the business” as did that of counsel for respondent in the case cited, yet his subsequent conduct, taken in connection with what happened upon the first call of the motion, amounted to an agreement to waive the time for approving the brief of evidence and extending the time of filing indefinitely until counsel for movant could prepare it. Counsel for respondent in the instant case as effectively “co-operated in the business” as did counsel for respondent in the ease cited, where the court held that the conduct of counsel for respondent amounted to a waiver of any right which he may have had to move for a dismissal of the motion for new trial for failure to file the brief of evidence within the time allowed by law.

In the case of Taliaferro v. Columbus Railroad Co., supra, where it was held that a brief of evidence is indispensable to the validity of a motion for new trial, and that where the brief of evidence was not filed within the time allowed by law, nór an order stipulating an extension of time was passed, the motion for new trial should have been dismissed, the question as to the power of counsel to expressly or impliedly waive such time of filing or the taking of a formal order extending the time was not passed upon. In that case there was no agreement to extend the time for presenting a brief of evidence for approval, nor was there anything in the conduct of the parties or their counsel which could amount to an express or implied agreement to waive the time of filing the brief of evidence for approval, or the taking of a formal order extending such time. This case is therefore distinguishable from the instant ease and is not authority, in view of the facts now before us, to sustain the contention of defendant in error. In the instant case, while no order was taken' extending the time in which to preseiit for approval a brief of evidence, the action of the attorney for respondent, as has been seen, amounted to a waiver of any failure upon the part of the movant to present for approval a brief of evidence within the time allowed by law.

The trial judge therefore erred in dismissing the motion for new trial.

Judgment reversed.

Jenlcins, P. J., and Smith, J., concur.


text:
    10610.
    Holt v. Georgia Railway & Power Company.
   Stephens, J.

1. Lost earning capacity being an entirely separate and distinct item of damage from pain and suffering, and it being the duty of the trial judge to submit to the jury all of the substantial issues made by the pleadings and the evidence, it follows that, where in a suit for personal injuries a claim for future impaired earning capacity was one of the substantial issues made by the pleadings and the evidence, the law relative thereto should have been given in charge to the jury, without special request therefor.

2. Where in such a case the petition sets out the petitioner’s injuries and alleges, “that he now suffers from the same and will continue to suffer from the same as long as he lives, . . [and] that on account of said injuries he has lost entirely his earnings since the date of said injury, and that his earning capacity is destroyed,” and where the evidence shows such physical injuries to the plaintiff, from which a jury may reasonably infer that the plaintiff has been permanently or totally disabled and will continue so for any period of time in the future, the issue as to lost earning capacity, both partial and total, is presented.

Decided December 16, 1919.

Action for damages; from Fulton superior court—Judge Bell. March 28, 1919.

McClelland & McClelland, B. B. Arnold, Boy 8. Brennan, for plaintiff.

Colquitt & Conyers, for defendant.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


text:
    10631.
    McDonald v. Southern Railway Company.
   Stephens, J.

1. Lost earning capacity being an entirely separate and distinct item of damage from pain and suffering, and it being the duty of the trial judge to submit to the jury all of the substantial issues made by the pleadings and the evidence, it follows that, where in a suit for personal injuries a claim for lost capacity to labor and' earn money was one of the substantial issues made by the pleadings and the evidence, the law relative thereto should have been fully given in charge to the jury, without special request therefor.

2. Where in such a case the petition sets out the petitioner’s injuries and alleges that they are permanent, and that the petitioner has become totally disabled, and where the petition prays damages, as a result of said injuries, for “lost capacity to labor and earn money,” and where the evidence shows such physical injuries to the plaintiff, from which a jury may reasonably infer that the plaintiff has been permanently or totally disabled and will continue so for any period of time in the future, the issue as to lost earning capacity, either partial or total, is presented.

3. The trial judge instructed the jury as follows: “The plaintiff sues for pain and suffering which he alleges he has suffered and endured by reason of the negligence of the defendant. That is a legitimate specification of damages, and he would be entitled to damages for pain and suffering, if you.find the case has been made out; and as to that there is no rule to measure damages for pain and suffering and diminished capacity to labor as distinguished from earning capacity, except the enlightened conscience of impartial jurors under the sanctity of their oaths. If you find this case has been made out, you would ascertain from the evidence whether the plaintiff has suffered much or little, the character and extent of his suffering, and give him such damages as your enlightened consciences would approve. The plaintiff contends that his injuries are permanent, and that he will suffer in the future on account of this injury, on account of the alleged negligence of the defendant. You would consider that, if the injuries are permanent and he is likely to suffer pain in the future, and if you should allow him anything for future pain and suffering, why you would have to reduce that amount to its present cash value, figured at the rate of seven per cent. He also sues for lost wages. That is a matter of evidence. If he is entitled to recover, he would be entitled to recover the amount of money he has lost by reason of this injury, and you would find that from the evidence. Eind what he was earning, how long he has been out of employment by reason of this injury, and give him such an amount as the evidence shows him to be entitled to under that specification. . . You need not consider those two items, doctor’s bills and medicine, but consider the other items, pain and suffering and lost wages.” In this charge the judge nowhere submitted to the jury the question of plaintiff’s right to recover for lost capacity to labor and earn money, but expressly confined the jury to the issue as to wages lost up to the time of the trial.

Decided December 16, 1919.

Action for damages; from Fulton superior court—Judge Bell. April 21, 1919.

J. Caleb Clarice, for plaintiff.

McDaniel & Black, for defendant.

4. The other assignments of error are without merit.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


text:
    10683.
    Tuxworth v. Barber.
    Decided December 16, 1919.
    Complaint; from DeKalb superior court—Judge Smith. May 13, 1919.

      J. B. Stewart, for plaintiff in error.

      McElreafh & Scott, contra.
   Stephens, J.

1. In a suit upon a promissory note by a plaintiff who is the transferee of the note, where the defendant admits a prima facie case and assumes the burden of proving his defense that the plaintiff purchased the note with notice of an infirmity therein, the trial judge does not err in directing a verdict for the plaintiff, upon the failure of the evidence to disclose any fact or circumstance within the knowledge of the plaintiff prior to the purchase of the note which would put a prudent man on his guard as to any defense, which the defendant might have had against the payee of the note.

2. The court properly excluded parol testimony as to the contents of a suit in the municipal court of Atlanta.

Judgment affirmed.

Jenkins, P. J., concurs. Smith, J., disqualified.


author: Jknkins, P. J.

text:
    10687.
    Colfax Gin Company v. Buckeye Cotton Oil Company.
   Jknkins, P. J.

The Colfax Gin Company sued for the purehase-priee of a carload of cottonseed sold by it to the Buckeye Cotton Oil Company, contending that it was entitled to recover for the amount of seed as shown by the weights when loaded at Colfax, Ga., the point of shipment. It was provided by the contract of purchase that the defendant was to pay for the cottonseed a stated price per ton “f. o. b. Colfax, Ga.” The defendant contends that it should only pay for the amount of seed received at the point of destination, and in an amendment to its plea and answer alleges that “in the cottonseed-oil business it is a custom to settle and pay for all shipments of cottonseed at mill weights,—that is, the weight at time and place of delivery; and said custom is of such universal practice that it becomes a part of all contracts for shipment and purchase in carload lots of cottonseed, and was a part of the contract in this case.” The court allowed this amendment, over the objection of the plaintiff that “the contract sued on was not ambiguous, and that the defendant could not set up and prove in defense of the suit the alleged custom which sought to vary the terms of the contract;” and to this the plaintiff excepts, contending that “f. o. b. Colfax,” as contained in the contract, meant that title to the seed passed to the buyer as soon as loaded, and that any loss in weights would fall on the purchaser. Held:

1. While a custom or usage of trade can not be set up to vary a written unambiguous contract whose terms are incompatible therewith (Emery v. Atlanta Real Estate Exchange, 88 Ga. 321, 330 (2) (14 S. E. 556); Albany &c. Railway Co. v. Merchants &c. Bank, 137 Ga. 391 (4) (73 S. E. 637); Brunswig v. East Point Milling Co., 11 Ga. App. 9 (74 S. E. 448), the words and letters “f. o. b. Colfax,” as contained in the contract of purchase, would ordinarily mean merely “free on board” at that point, and that the defendant was to be responsible for the cost of shipment (Reese v. Weinberger, 108 Ga. 533, 535 (34 S. E. 28, 75 Am. St. R. 73); and the contract as made was therefore silent as to what weights were to govern in the settlement for the cottonseed. It follows that the court did not, for any of the reasons assigned, err in allowing the amendment offered by the defendant. Political Code (1910), § 1 (4); Branch v. Palmer, 65 Ga. 210. And while, in the absence of an agreement to the contrary, delivery of freight to a common carrier is regarded as delivery to the consignee, and any loss or damage to the goods while in transit would fall on the purchaser, this rule may be varied by agreement (McCook v. Halliburton-Myers Co., 14 Ga. App. 381) (80 S. E. 863); and if at the time the contract of purchase in the instant case was made there existed a custom, such as that alleged by the defendant, which was of such universal practice as that it became by implication a part of the contract, this would amount to such an agreement as would prevent the application of the general rule above stated.

2. “An agreement by a creditor to receive less than the amount of his debt can. not be pleaded -as an accord and satisfaction, unless it be actually executed by the payment of the money, or the giving of additional security, or the substitution of another debtor, or—some other new consideration” (Civil Code of 1910, § 4329), and, in the absence of ah agreement to the contrary, a bank check thus tendered as in full payment is not such until it is itself paid. Civil Code (1910), § 4314. Thus, where a claim is unliquidated because of a bona fide dispute as to the amount due, and the debtor sends a check to the creditor for the amount which the debtor claims he is due, but for less than the amount claimed by the creditor, with and upon the express condition written upon the check that it is to be in full settlement of the disputed claim, it is only where the creditor either has agreed to accept, or after the tender actually does accept, such a cheek as being of itself in full settlement of the unliquidated demand, that the mere retention of such an unpaid check can be set up as an accord and satisfaction. Edwards Bottling Works v. Jarnagin, 11 Ga. App. 162, 163 (74 S. E. 1004); Charles W. Tway Co. v. Hedenberg, 24 Ga. App. 520 (101 S. E. 199); Sims v. Bolton, 138 Ga. 73, 75 (74 S. E. 770); Hamilton v. Stewart, 108 Ga. 472 (34 S. E. 123); Jenkins v. National Mut. B. & L. Asso., 111 Ga. 732 (36 S. E. 945); Redmond v. Atlanta & Birmingham Ry., 129 Ga. 133 (58 S. E. 874); Bass Dry Goods Co. v. Roberts Coal Co., 4 Ga. App. 520 (61 S. E. 1134). The evidence in this case being in conflict as to whether or not there had been an express agreement that the check itself was to be accepted as payment, the court erred in directing a verdict for the defendant.

Decided December 16, 1919.

Complaint; from city court of Macon—-Judge Guerry. March 22, 1919.

Feagin & Hancock, Deal & Renfroe, for plaintiff.

Miller & Jones, for defendant.

3. Since the unpaid check given by the defendant to the plaintiff was produced by the plaintiff upon the trial of the case, and was introduced in evidence, the formal tender or surrender thereof to the defendant is not necessary as a condition precedent to final judgment in favor of the plaintiff for the full amount sued for, if otherwise entitled thereto. Sims v. Bolton, supra; Belmont Farm v. Dobbs Hardware Co., 124 Ga. 827, 829 (53 S. E. 312).

Judgment reversed.

Stephens and Smith, JJ., concur.


text:
    10696.
    Stewart v. Hardin.
   Jenkins, P. J.

1. The plea of the defendant, in so far as it seeks to set up the fraudulent procurement of the note as a defense, fails to conform to the requirements of law. Hanes v. Farmers &c. Bank, 20 Ga. App. 129 (92 S. E. 896); Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (2), 516 (94 S. E. 892). The note as signed by the defendant must therefore be taken just as if it had been written and signed with his own hand, and the promise as made knowingly entered upon. Not being permitted to deny the promise, he can not alter or change by parol any of its written terms. Lynchburg Shoe Co. v. Daniel, 23 Ga. App. 186 (98 S. E. 107). But notwithstanding such a promise recites a consideration, it is still the right of the maker to prove by parol that it was really without consideration, and any facts pertinent to such an issue thus made are relevant. Hawkins v. Collier, 101 Ga. 145 (28 S. E. 632). Thus, treating as mere surplusage the allegations of the plea seeking to annul the promise itself by setting up as a defense its fraudulent procurement, it appears from the plea that the defendant received nothing, and the plaintiff parted with nothing in consideration of the note being signed, and that what he now seeks to do is not to deny the promise, but to avoid the consequence thereof, for the reason that it was a nudum pactum. Beazley v. Gignilliat, 61 Ga. 187; Hall v. Morrison, 92 Ga. 311 (18 S. E. 293); Mackin v. Blalock, 133 Ga. 550 (66 S. E. 265, 134 Am. St. R. 220); Jones v. Georgia Fertilizer Co., 21 Ga. App. 170 (94 S. E. 81); Mimbs v. Stephens Hardware Co., 22 Ga. App. 88 (95 S. E. 377); Simmons v. International Harvester Co., 22 Ga. App. 368 (96 S. E. 9); Rheney v. Anderson, 22 Ga. App. 417 (96 S. E. 217). The trial judge therefore did not err in overruling the plaintiff’s demurrer, on the theory held by him that the plea set up a valid defense by denying a consideration for the promise.

Decided December 16, 1919.

Complaint; from Jones superior court—Judge Park. June 7, 1919.

The defendant in his answer admitted the execution of the note sued on, and pleaded that the note “was given through a fraud perpetrated upon him by James Stewart as agent for F. M. Stewart (the plaintiff), as follows:" In February, 1915, defendant sold to A. T. Small a certain tract of land in Jones county, which defendant had rented to Jaque Marsh, and Marsh’s rent note for the place for that year, which defendant held, was turned over to Small. Subsequently James Stewart came to defendant with a note in his hands which he claimed was the said rent note, and told defendant that Small wished him (James Stewart) to get defendant to indorse it to Small. Defendant, having the utmost confidence in James Stewart, and not being able to read without glasses and not having his glasses with him, signed the note sued on, believing that it was an indorsement of the rent note. The note sued on purports to have been signed September 15, 1911, while in fact it was not signed at that time, but was signed in February, 1915. Defendant would not have signed it without reading it or having some one read it to him, if he had not had the utmost confidence in James Stewart. The note sued on is totally without consideration, for the reasons set out above, and defendant is not indebted in any amount to the plaintiff, and the plaintiff, through his agent James Stewart, has perpetrated a fraud on defendant without any fault on the part of defendant.

2. A defendant must stand or fall upon his defense as laid. Trentham v. Bluthenthal, 118 Ga. 530, 534 (45 S. E. 421); Hunnicutt v. Chambers, 111 Ga. 566 (36 S. E. 853); Burdette v. Crawford, 125 Ga. 577 (54 S. E. 677); Rodgers v. Caldwell, 122 Ga. 279 (50 S. E. 95); Clegg-Ray Co. v. Indiana Scale & Truck Co., 125 Ga. 558 (54 S. E. 538); and since the defendant by his evidence admitted that the note actually represented a disputed consideration, and thus failed to sustain his plea as made, setting up a want of consideration, he would not, in the absence of a sufficient plea of fraud, be able to vary by parol the terms of his unconditional promise by which the disputed claim had been liquidated. Branan v. Warfield, 3 Ga. App. 586 (60 S. E. 325); Barco v. Taylor, 5 Ga. App. 372 (63 S. E. 224). The defendant’s own evidence having failed to sustain the plea as entered, the court erred in overruling the motion for a new trial.

Judgment reversed.

Stephens and Smith, JJ., concur.

Willard W. Burgess, F. Holmes Jacicson, for plaintiff.

J. B. Jachson, for defendant.


text:
    10699.
    Bank of LaFayette v. Phipps et al.

   Jenkins, P. J.

The Bank of LaFayette, Ga., brought an action against E. F. Phipps and his mother, Mrs. Anna Phipps, upon certain promissory notes signed by them apparently as joint makers. Both defendants admitted the execution of the notes, but E. F. Phipps interposed a plea setting up as a defense his discharge in bankruptcy, and Mrs. Anna Phipps set up as a defense that she signed the notes merely as surety for her son, and that, being a feme covert, she could not legally become surety; that the plaintiff charged a usurious rate of interest on the notes, having collected eight per cent, ipterest in advance, and, the notes having contained a waiver of homestead, her risk as surety was thereby increased, and she was for this reason discharged from any liability as surety on the notes. Upon the trial of the case the defendant E. F. Phipps introduced in evidence a certified copy of his discharge in bankruptcy, and the trial court, in the charge to the jury, directed a verdict in his favor. The evidence in behalf of the defendant Mrs. Anna Phipps tended to establish her plea as made, while that in behalf of the plaintiff tended to show that she not only received a part of the consideration of the notes, but that the advance was actually made partly upon her credit, to her and for her, and that she was therefore not merely surety, but a, joint obligor with her son.' The jury returned a verdict for the defendants; the plaintiff made a motion for a new trial, and to the judgment overruling the motion the plaintiff excepted. Held:

X. It being shown by the evidence that the indebtedness sued on, which was provable in bankruptcy, was in existence at the time one of the defendants filed a petition in bankruptcy, and this defendant having introduced in evidence a certified copy of his discharge in bankruptcy, the trial court did not err in directing a verdict in his favor; there being no insistence upon the part of the plaintiff that it did not have -notice or actual knowledge of the proceedings in bankruptcy, or that the debt and the name of the creditor were not duly scheduled. Beck & Gregg Hardware Co. v. Crum, 127 Ga. 94 (56 S. E. 242); Travis v. Sams, 23 Ga. App. 713 (99 S. E. 239 (2); Kreitlein v. Ferger, 238 U. S. 21 (59 Law. ed. 1184). The second special ground of the motion for a new trial is therefore without merit.

2. It is the duty of the trial judge, without any written request, to state to the jury with equal fullness, and fairly to each side, the contentions of both parties, and in doing so no material contention of either party should be omitted. Cochran v. Jones, 85 Ga. 678, 682 (11 S. E. 811); Whelchel v. Gainesville Ry. Co., 116 Ga. 431 (3) (42 S. E. 776); Seaboard Air-Line Ry. v. Sikes, 4 Ga. App. 7 (6), 12 (60 S. E. 868); Georgia Brokerage Co. v. Frazier, 11 Ga. App. 498 (75 S. E. 827). Thus, where to a suit on a promissory note the defendant, a married woman, admits a prima facie case, but interposes such a plea as the one entered by the defendant in this case, “the plaintiff is not required to file a replication in order to contest the justice of the plea. In charging the jury upon the issues involved on the trial of such a case it is the duty of the presiding judge to submit to the jury the contentions of the plaintiff in reply to such plea, taking such contentions from the evidence.” Parker v. Parrish, 18 Ga. App. 258 (89 S. E. 381). The trial judge, in charging upon the contentions of the parties, stated fully those of the defendant Mrs. Phipps as set up in her plea, but failed to state the contrary contention of the plaintiff, which was to the effect that this defendant had participated in the procurement of the loan as ,a credit extended in part to and for herself. While, later on, instructions were given for the purpose of drawing the legal distinction between a principal and a. surety, and the difference in the legal effect of such contracts when entered upon by a married woman, still it is one thing to state what a party con- • tends, 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).

3. Error was assigned upon the following excerpt from the charge of the court: “But the distinction is simply this, whether or not she (the defendant) meant originally to borrow the money herself, to obtain the money, or to get consideration out of the loan, or whether she meant merely to go surety for her son, in order to extend to him a credit or obligation upon the part of the bank in order to aid him in his financial difficulties, if he had financial difficulties, so, if in that way she became surety, she would not be bound at all; but if it was an original undertaking on her part, she would be bound.” Held: Whether the relationship of a promisor to his or her payee is that of joint principal, or that of surety, is a question to be determined by the facts, and is not to be governed by the opinion that either of the parties to the contract might have entertained. Duckett v. Martin, 23 Ga. App. 630 (99 S. E. 151 (3)). Thus, the charge of the court making the undisclosed intention and private understanding of the defendant the criterion by which the jury were to determine her relationship to the notes was not a correct statement of the rule. Third National Bank v. Poe, 5 Ga. App. 113 (62 S. E. 826).

Decided December 16, 1919.

Complaint; from Walker superior court—Judge Wright. June 6, 1919.

Shattuck & Shaituclc, for plaintiff.

Rosser & Shaw, for defendants.

4. While the excerpt from the charge complained of in the sixth special ground of the motion for a new trial is not of itself an entirely accurate statement of the law, yet, when considered in connection with the entire charge, it is not such error as would of itself require the grant of a new trial.

5. It was a disputed issue as to whether a note for $36, given for interest, represented eight per cent, interest by way of discount in advance, or was given for accrued interest. Even though it be conceded that a portion of the amount of this interest note represented usury, it having been executed prior to the passage of the act of 1916 (Ga. L. 1916, p. 48), the court erred in charging the jury as follows: “There is a little note of some thirty-six dollars, alleged to have been given in payment of interest. I charge you, although she [the defendant] might not have been surety, but might have been a joint obligor of the note, yet if the bank charged this interest, it was usurious interest, as to small note, thirty-six dollars, she would not be liable for that in any event, whether she was either surety or joint maker of the notes.” See Croom v. Jordan, 20 Ga. App. 802 (93 S. E. 538); West v. Atlanta Loan & Saving Co., 22 Ga. App. 184 (95 S. E. 721).

6. The request to charge set out in the eighth special ground of the motion for a new trial was not applicable to the facts of this case, and the court did not err in refusing the request. The other alleged errors not specifically considered and disposed of are not likely to recur on another trial.

Judgment reversed.

Stephens and Smith, JJ., concur.


author: Jenkins, J.

text:
    10703.
    Gunn v. Globe & Rutgers Fire Insurance Co.
   Jenkins, J.

Mrs. Gunn brought suit for the value of an automobile, under a policy of insurance protecting her against “theft, robbery or pilferage, excepting by any person or persons in the assured’s household or in the assured’s service or employment, whether the theft, robbery, or pilferage occur during the hours of such service or employment or not.” The evidence discloses that the plaintiff had been induced to purchase the ear, a second-hand one, by virtue of the representations of one C. R. Miller, an automobile mechanic, who at the time of the purchase was a lodger of the plaintiff; that shortly thereafter the car got out of order, and that the plaintiff stated to Miller, who in the meantime had removed from the plaintiff’s residence, that it was “up to him to fix it;” that the car was turned over to Miller for such purpose under the statement above quoted, and without any understanding that Miller was to receive compensation for his services in repairing it. The evidence indicates that after the car had been entrusted to Miller he fraudulently converted it to his own use. Upon these facts being made to appear, the trial court granted a nonsuit. Held:

Decided December 16, 1919.

Action on insurance policy; from city court of Atlanta—Judge Eeid. May 8, 1919.

E. M. & G. F. Mitchell, for plaintiff.

Smith, Hammond & Smith, for defendant.

Under the terms of such a policy, written to indemnify an owner against loss by “theft, robbery, or pilferage,” the usual and ordinary meaning of these words, involving the wrongful and fraudulent taking and carrying away of the article stolen, should have application, and the reasonable intention of the contract should not be extended to cover the fraudulent conversion by a bailee of the property so entrusted. The true and manifest intent and spirit of the contract should not be so technically construed as to require that it partake of the nature of a blanket fidelity bond guaranteeing the integrity of all such persons as may be entrusted by the owner with the possession and control of the article covered by the policy of insurance. See Hartford, Fire Ins. Co. v. Wimbish, 12 Ga. App. 712 (78 S. E. 265); Delafield v. London & Lancashire Fire Ins. Co., 177 App. Div. (N. Y.) 477 (164 N. Y. Supp. 211); Valley Mercantile Co., v. St. Paul Fire &c. Ins. Co., 49 Mont. 430 (143 Pac. 559); People v. Cruger, 102 N. Y. 510 (7 N. E. 555); Stuht v. Maryland Motor-Car Ins. Co., 90 Wash. 576 (156 Pac. 557).

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10739.
    LOUISVILLE & NASHVILLE RAILROAD CO. v. LOVELACE.
    1. The right of certiorari is a constitutional right and the writ lies to correct errors in any inferior judicatory, including the municipal court of Atlanta. While a writ of certiorari lies to a final judgment entered upon a verdict rendered in the municipal court of Atlanta, without any motion for new trial having been made, it does not follow that when the losing party avails himself of his statutory right to an oral motion for a new trial to set aside such judgment he forfeits his constitutional right to except by certiorari to the original judgment. After an oral motion for a new trial in the municipal court of Atlanta has been finally disposed of, either by having been overruled or dismissed, the jurisdiction which that court had over the case thereby ceases and the original judgment stands as final. Where a motion for new trial is made in the municipal court of Atlanta and overruled, certiorari afterwards lies to the original judgment rendered therein if presented within thirty days from the rendition of the judgment, and in the petition for certiorari it is not necessary to except to the action of the trial judge in overruling the motion for new trial.
    2. If certiorari does not lie to correct a judgment upon the ground that it is contrary to the evidence and the principles of equity and justice, or that it is decidedly and strongly against the weight of the evidence, a petition for certiorari will not be dismissed on such ground when, in addition to such ground, it presents for determination a question of law.
    3. The plaintiff in certiorari, in attempting to fully and plainly set forth what transpired upon the trial, is not required to make a brief of the evidence adduced upon the trial, but may incorporate in his 'petition a stenographic transcript of the testimony, set forth in questions and answers. It is error to dismiss such a petition upon the ground that no effort was made on the part of plaintiff in certiorari to make a brief of the evidence. See, in this connection, ■Meacham v. State, 7 Oa. App. 713 (68 S. E. 52).
    4. The Civil Code, § 5185, provides: “Before any writ of certiorari shall issue, . . the party applying for the same . . shall give bond and good security, conditioned to pay the adverse party in the cause the eventual condemnation money, together with all future costs.” A bond, attached to a petition for certiorari, which recites the case by name and designates it as “in the municipal court of Atlanta,” and obligates the plaintiff in certiorari and his security for the “eventual condemnation money and all future costs in said case” (italics ours), is not void upon the ground that it is conditioned only to pay the future costs in the municipal court of Atlanta, and not all future costs. The phrase “in said case” will not be construed as applying only to the case as pending in the municipal court of Atlanta, but will be construed as referring to the ease by name, irrespective of the court in which it is pending.
    5. The court erred in dismissing the petition for certiorari, upon motion filed by the defendant in certiorari.
    Decided December 16, 1919.
    Certiorari; from Fulton superior court—Judge Pendleton. May 30, 1919.
    T. A. Lovelace sued the Louisville & Nashville Kailroad Company in the municipal court of Atlanta, and obtained a judgment on March 4, 1919. The defendant, under the rules in that court, made his oral motion for new trial, which came on for a hearing ■on March 7, 1919, when it was overruled. The defendant, within 30 days from the rendition of the original judgment, presented to the judge of the superior court of Fulton county, and had sanctioned, a petition for certiorari, in which he did not except to the ruling of the trial judge in overruling the motion for new trial, but excepted to the original judgment and assigned error thereon. Upon the call of the case in the superior court the defendant in certiorari moved to dismiss the petition, upon the following grounds: (1) The plaintiff in certiorari made in the municipal court of Atlanta an oral motion for 'new trial, which was overruled, and, instead of excepting to the order overruling that motion, excepted to the original judgment, and, although the petition for certiorari was sanctioned within 30 days from the rendition of the original judgment, yet in view of the passage of the judgment overruling the motion for new trial, the original judgment excepted to was not a final judgment, but the final judgment in the case was the judgment overruling the oral motion for new trial, and the petition for certiorari does not except to a final judgment. (2) The petition for certiorari excepts to the verdict and judgment as being contrary to the evidence and the principles of equity and justice, and decidedly and strongly against the weight of the evidence, and this alleged error cannot be reached by certiorari. (In regard to this ground, an inspection of the record will show that in addition to these assignments, the petition for certiorari contains other valid assignments of error raising only questions of law.) (3) The evidence contained in the petition for certiorari consists of a copy of stenographic notes arranged in questions and answers, and no bona fide effort has been made to brief the evidence. (4) The certiorari bond was not conditioned to pay all the future costs in the case, but only the future costs in the municipal court. This motion was sustained by the trial judge, who, without reference to any particular ground, passed an order generally dismissing the petition for certiorari. To this order the plaintiff in certiorari excepted.

      Tye, Peeples & Tye, for plaintiff in error.

      McCallum & Sims, contra.
   Stephens, J.

(After stating the foregoing facts.) The right to sue out a certiorari is a constitutional right and the writ lies to correct errors in any inferior judicatory. It lies to any final judgment entered in the municipal court of Atlanta. Johnston v. Brenau College-Conservatory, 146 Ga. 183 (91 S. E. 85); Young v. Broyles, 16 Ga. App. 356 (85 S. E. 366). Whether certiorari lies to the original judgment entered upon a verdict in that court after an unsuccessful effort has been made to have the judgment reviewed by that court is the question for our determination.

The finality of a judgment or order is not determined by the time within which it is rendered, but by its effect in ending the litigation. The fact that a motion for new trial has been made, seeking to set aside a verdict and judgment which in themselves are final, does not operate to destroy the finality of the verdict and judgment thereon, although the action of the trial judge upon .the motion for new trial, such as dismissing it, or overruling it, is itself final as ending the litigation. In this sense, there may be two final judgments in the same case,, either one of which operates to end the litigation. It is clear that a verdict and judgment rendered in the municipal court of Atlanta is a final judgment and may be excepted to on certiorari without a motion for new trial. It is also clear that an order disposing of a motion for new trial in the municipal court of Atlanta may be a judgment and may be excepted to on certiorari without appealing to the appellate division of that court. It is also clear that a judgment of the appellate division of the municipal court of Atlanta may be a final judgment and may be excepted to on certiorari. There can, therefore, be three final judgments in a case in the municipal court of Atlanta. It is clearly established that the last final judgment in point of time may be excepted to on certiorari. While certiorari lies to any one of such final judgments, if applied for within the statutory period after the rendition of the final judgment complained of and before the losing party has sought to obtain any further relief in the municipal court, it would be a bare assertion to hold that, where the losing party in the first instance in a case tried in that court avails himself of the remedy by oral motion for new trial therein, and the motion is overruled, thus affirming the original judgment, he cannot by petition for certiorari, tendered in time, except to the original verdict and judgment, and that his sole remedy would be to except to the judgment overruling the motion for new trial.

When the original judgment in the trial court stands final in that it is not jeopardized by any subsequent proceedings in that court, whether such proceedings had been abandoned or finally party cannot except to the original judgment on certiorari if tendered in time. It has been held that when a motion for new determined, and the original judgment stands final to operate as an end of the litigation, there is no valid reason why the losing trial in a city court has been terminated by a dismissal of such motion, or has been abandoned by the movant, and the original verdict and judgment are thus left standing as final, and there are no proceedings pending to jeopardize it in the city court, certiorari would lie to such original verdict and judgment if tendered within the statutory period. Moody v. State, 14 Ga. App. 523 (81 S. E. 588); Archie v. State, 99 Ga. 23 (25 S. E. 612). In the case of Roach v. Sulter, 54 Ga. 458, where a bill of exceptions to the original verdict and judgment obtained in the city court of Savannah was dismissed in the Supreme Court, thus leaving the original verdict and judgment standing as final and operating to end the litigation in the city court, it was held that a certiorari afterwards tendered would lie to such verdict and judgment if tendered within the time allowed by law. These three cases went upon the theory that a writ of certiorari would lie to the original verdict and judgment after other remedies to correct the errors had been pursued and finally disposed of in such a manner as to leave the original verdict and judgment standing as final and as ending the litigation. We can see no difference in this respect between a dismissal of such proceedings and a determination of the same upon the merits. Both terminate the proceedings and render the original judgment final. The ratio deciderfdi of these cases is that the original judgment is subject to be reviewed on certiorari after a final determination, rather than a dismissal of the motion for new trial or of the writ of error in the Supreme Court. The salient fact is that the action upon the motion for new trial, or whatever the proceeding may be, has terminated in such a manner, whether by dismissal or by an adverse ruling upon the merits, as to finally determine and dispose of any pending proceedings to correct the original judgment and to allow the original verdict and judgment to stand as a final ending of the litigation.

We can therefore see no. reason why, after an oral motion for new trial has been made in the municipal court of Atlanta and overruled, thus finally ending the litigation and establishing the original verdict and judgment as a final determination of the case, certiorari will not lie exclusively and directly, if presented in time, to the original verdict and judgment.

Judgment reversed.

JenJcins, P. J., and Smith, J., concur.


author: Smith, J.

text:
    10774.
    McFARLAND v. McFARLAND, executor.
    Where a person was sued in a county other than that of his legal residence or domicile, and the sheriff’s entry of service stated that the defendant was served by leaving a copy “at his place of residence,” and the defendant appeared and filed a plea to the jurisdiction, alleging that he was a resident of another county, naming the county, traversing the entry of service and making the sheriff a party to the traverse, and upon the trial of the traverse and the issue made on the plea to the jurisdiction two separate verdicts were rendered, the first sustaining the traverse to the return of the sheriff' and the other sustaining the plea to the jurisdiction, upon which verdicts the court entered a judgment reciting the verdicts and dismissing the case for want of jurisdiction, held, that this suit was such a suit as prevented the statute of limitations from running as against a subsequent suit brought for the same cause of action within six months in the county of the defendant’s true residence.
    Decided December 16, 1919.
    Rehearing denied February 7, 1920.
    (Certiorari was granted by the Supreme Court.)
    Complaint; from Brooks superior court—Judge Thomas. June 7, 1919.

      W. M. Henry, John B. Morris Jr., for plaintiff in error.

      B. M. W. Glenn, Branch & Snow, contra.
   Smith, J.

On July 30, 1917, T. J. McFarland, as executor of J. M. McFarland, brought suit in the superior court of Brooks county against J. A. McFarland, seeking to recover upon two promissory notes. One note was dated January 27, 1892, and the other dated March 12, 1892, each being for a specified amount of money as principal, both bearing interest from date at the rate of 8% per annum, and both due one date after date. The petition in one paragraph alleged that the former suit had been brought upon said notes in the superior court of Walker'county, Georgia, and was filed January 7, 1912, and nonsuited and discontinued on February 19, 1917. The petition further alleged that all the costs of the former suit had been paid and that this last suit was brought within six months from the date of the dismissal. The petition did not attach a transcript of the record from the superior court of Walker county. To this latter suit the defendant filed two pleas, one a plea of payment and the other a plea of the statute of limitations, and upon the trial of the case the plaintiff introduced in evidence a certified transcript of the proceedings in the superior court of Walker county. After the evidence was all in the court charged the jury on all the issues involved in the case, except the issue as to the statute of limitations. Defendant’s counsel called his attention to this omission and he declined to .charge on this subject, giving as his reason that the statute of limitations was not involved in the ease. This ruling was not error, as, under the testimony introduced by the plaintiff, the suit in the superior court of Walker county was such a suit as prevented the statute of limitations from running, and the bringing of the subsequent suit within six months thereafter and after payment of costs was allowable under the law. See Mitchell County v. Dixon, 20 Ga. App. 21 (92 S. E. 405); Atlanta, K. & N. Ry. Co. v. Wilson, 119 Ga. 782 (47 S. E. 366).

There was evidence to support the verdict.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.


text:
    10854.
    Edwards v. Blackshear et al.

    Decided December 16, 1919.
   Smith, J.

Under the provisions of section 5385 of the Civil Code (1910), in order to maintain a proceeding to evict a person in possession of lands, the relation of landlord and tenant must exist between the parties. Henry v. Perry, 110 Ga. 630 (36 S. E. 87); Watson v. Toliver, 103 Ga. 123 (29 S. E. 614); Story v. Epps, 105 Ga. 504 (31 S. E. 109); Mackenzie v. Minis, 132 Ga. 323 (63 S. E. 900, 23 L. R. A. (N. S.) 1003, 16 Ann. Cas. 723). Where one is in possession of lands under a bond for title and surrenders the bond for title, but remains in possession of the lands, and thereafter the lands are sold to a third person, the relation of landlord and tenant does not exist between the vendee of the original owner and the person in possession, and therefore the summary remedy provided for by the Civil Code, § 5385, does not lie. Under this ruling the court did not err in dismissing the dispossessory warrant.

Judgment affirmed.

Jenhins, P. J., and Stephens, J., concur.

Eviction; from Laurens superior court—Judge Kent. August 1, 1919.

R. Earl Gamp, for plaintiff.

Larsen & Crockett, G. G. Bidgood, for defendants.


text:
    10857.
    Blair v. Redwine.
    Decided December 16, 1919.
    Complaint; from Douglas superior court—Judge Irwin. July 2, 1919.

      W. A. James, J. S. James, for plaintiff in error.

      J. R. Hutcheson, contra.
   Smith, J.

There was evidence to support the verdict in this case, the charge of the court was more favorable to the contentions of the plaintiff in error than to those of the defendant in error, and a careful consideration of the special grounds of the motion for a new trial fails to disclose any reversible error. The court therefore did not err in overruling the motion for a new trial.

Judgment affirmed.

Jerilcins, P. J., and Stephens, J,, concur.


text:
    10866.
    MOULTRIE GROCERY CO. v. CHARLESTON MILLING CO.
    No contract of sale was completed by the telegrams which are the basis of this suit.
    Decided December 16, 1919.
    Rehearing denied February 7, 1920.
    Action on contract; from Colquitt superior court—-Judge Thomas. July 25, 1919.

      W. F. Way, for plaintiff.

      James Humphreys, Dowling & Askew, for defendant.
   Smith, J.

1. A broker at Albany, Georgia, made an offer by telegram on July 18, 1916, to the Charleston Milling Company, a corporation situated at Charleston, Missouri, to sell to the Moultrie Grocery Company “2000 barrels of flour, basis Eclipse Brand, plain, sacked, delivered Moultrie,” at $5.85 per barrel, and in reply to his offer received the following telegram from the Charleston Milling Company: “Decline Moultrie. Will book School Days $6.40; Eclipse, plain, $6.10; self-rising $6.30; Queen South, self-rising, $5.20; put your force behind Eclipse. Have understanding all contracts prorated monthly and give specifications first car immediately; needing prompt shipping order; market still advancing.” -In response to this telegram the broker on July 19, 1916, wired: “Book Moultrie per your message Eclipse $6.10; Daisy self-rising $6.10; Queen of South $5.20.” On July 22. 1916, the milling company wired to the broker: “Moultrie booking declined account price Daisy self-rising; quotations all made subject to confirmation as advised, especially on such a radically advancing market. Don’t work Jacksonville, Snyder Bros, our representatives.” It appears from this correspondence, as well as from the undisputed evidence adduced on the trial, that not only was there a substitution by the broker in his telegram of acceptance of “Daisy self-rising $6.10” for “School Days $6.40,” as contained in the telegram making the offer, but that the latter brand of flour was not a self-rising flour, whereas the one substituted in lieu thereof was a self-rising flour.

While a contract may be made by telegrams, the telegrams which were the basis of this suit did not constitute a complete contract between the Moultrie Grocery Company and the Charleston Milling Company, since the broker’s offer was not accepted by the seller unequivocally, unconditionally, and without variance. There was no mutual assent of the parties to the same thing in the same sense. Robinson v. Weller, 81 Ga. 704 (8 S. E. 447); Stix v. Roulston, 88 Ga. 748 (15 S. E. 826); Harris v. Lumber Co., 97 Ga. 465 (25 S. E. 519); Larned v. Wentworth, 114 Ga. 209 (39 S. E. 855); Harper v. Ginners Mutual Insurance Co., 6 Ga. App. 139, 142 (64 S. E. 567); Phinizy v. Bush, 129 Ga. 479; Pennsylvania Fire Ins. Co. v. Sorrells, 23 Ga. App. 398 (98 S. E. 358). The trial judge therefore did not err in granting a nonsuit.

2. Under the above ruling it is unnecessary to pass upon the 5th ground of error set out in the bill of exceptions, in which it is alleged that the defendant in the court below waited an unreasonable length of time to repudiate or refuse to accept the order made by the plaintiff in the court below for the sale and purchase of the flour.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10873, 10874.
    SWIFT & COMPANY v. DAWSON PAPER SHELL PECAN COMPANY; and vice versa.

    1. In a suit upon a promissory note signed “Lowery- Brothers Company by M. M. Lowery, secretary and treasurer,” the court did not err in admitting the note in evidence, in view of the proof that M. M. Lowery was secretary and treasurer of Lowery Brothers Company; and the note, taken together with the other testimony adduced on the trial, made out a prima facie case in favor of the plaintiff. The court therefore erred in granting a nonsuit.
    2. The evidence having shown that M. M. Lowery was the secretary and treasurer of the Lowery Brothers Company, conversations with him relative to the transaction in question and letters written by him relating thereto were properly admitted in evidence. This ruling disposes of the 1st, 2nd, 3rd, 4th, and 8th grounds of error assigned in the cross-bill of exceptions.
    3. The court did not err in admitting in evidence certain portions of the pleading in the case of Dawson Pecan Oo. v. Montezuma Go., 19 Ga. App. 42 (90 S. E. 984), to wit: “Eor further answer this defendant says that the note sued on in the above-stated case was never executed by the Dawson Paper Shell Pecan Company, or its predecessors, the Lowery Brothers Company, nor by any officer or agent of said defendant company who was authorized to execute the same, and the same was not the act or deed of the said defendant company, but was an ultra vires act of M. M. Lowery, who was at the date of said notes secretary and treasurer of said defendant company.” Although in a separate suit from t-his one, the excerpt from the answer in that suit was admissible in evidence as illustrative of whether or nót M. M. Lowery was such an officer of the Lowery Brothers Company.
    4. The 6th and 7th grounds of the cross-bill of exceptions are covered by the ruling stated in the first headnote.
    Decided December 16, 1919.
    Complaint; from city court of Dawson—Judge Edwards. July 31, 1919.

      Peacock & Gardner, W. H. Gwrr, for plaintiffs.

      Yeomans & Wilkinson> for defendants.
   Smith, J.

Swift & Company sued tbe Dawson Paper Shell Pecan Company on a promissory note signed “Lowery Brothers Company, per M. M. Lowery, Secretary and Treasurer,” alleging that the Dawson Paper Shell Pecan Company was a corporation and had absorbed Lowery Brothers Company, which was also a corporation, and had assumed the indebtedness of Lowery Brothers Company. At the conclusion of the evidence submitted in behalf of the plaintiff, the court, upon motion of defendant’s counsel, granted a nonsuit. To this ruling the plaintiff excepted.

The plaintiff introduced in evidence the minutes of the Lowery Brothers Company, which showed that on August 7, 1911, M. M. Lowery was elected secretary and treasurer of said company. The minutes showed also that they were signed by M. M. Lowery as secretary and treasurer of the Lowery Brothers Company up to August 19th, 1913, the date of the last meeting. It was also proved that sometime during the year 1914 the corporate name Lowery Brothers Company was changed to Dawson Paper Shell Pecan Company, and that on November 14th, 1914, W. A. Baldwin was elected secretary and treasurer of the company. The following portion of the pleadings in the ease of Montezuma Fertilizer Company v. Dawson Paper Shell Pecan Company (see 19 Ga. App. 43, which was a suit on several promissory notes made by Lowery Brothers Company, per M. M. Lowery, secretary and treasurer, each note bearing the date May 7th, 1914) was admitted in evidence: "For further answer this defendant says that the note sued on in the above-stated case was never executed by the Dawson Paper Shell Pecan Company, or its predecessors, the Lowery Brothers Company, nor by any officer or agent of said defendant company who was authorized to execute the same, and the same was not the act or deed of the said defendant company, but was an ultra vires act of M. M. Lowery, who was at the date of said notes secretary and treasurer of said defendant cdmpany.” Thus we have an admission by the defendant in this case that M. M. Lowery was on May 7, 1914, the secretary and treasurer of the Lowery Brothers Company. It will be recalled in this connection that the note sued upon in the instant ease is dated May 31, 1914. There is nothing in the record to indicate that any one was elected to succeed M. M. Lowery during the interval between May 7, 1914, and May 31,1914. J. S. Lowery, president of the Lowery Brothers Company, testified as follows: “Up until the formation of Dawson Paper Shell Pecan Company, Lowery Brothers Company continued to exist, and I was president and M. M. Lowery was secretary and treasurer. . .' As long as the office remained in Americus M. M. Lowery was supposed to hold the office of secretary and treasurer. . . After the office was removed the business of Lowery Brothers Company was turned over to me, and when any mail came to Lowery Brothers Company at Dawson, Ga., I received it. While the office was in Americus the company’s mail went to Americus. M. M. Lowery purchased fertilizer for Lowery Brothers Company during the year 19 —he purchased all the fertilizer used by the company that year.” On cross-examination this witness testified: “I was president of the company and knew that he (M. M. Lowery) was buying the guano. C. T. Lowery was director of the company at the time it was bought. . . M. M. Lowery as well as C. T. Lowery and myself were looking after the business of Lowery Brothers Company.” I. J. Kalmon testified that he represented Swift & Company during the year 1914, and that he sold to Lowery Brothers Company the fertilizer for which the note sued upon was executed; that the transaction was had with M. M. Lowery, who told him that he (Lowery) was secretary and treasurer of the Lowery Brothers Company, and had authority to buy guano for that company; that an application for the purchase of the fertilizer in question was filled out and signed by him, as the representative of Swift & Company, and by M. M. Lowery, as secretary and treasurer of the Lowery Brother^ Company; that he did not know what farms the Lowery Brothers Company owned, or where they were located, but that he ordered the guano shipped to the point where M. M. Lowery directed it to be sent. This witness further testified that M. M. Lowery signed the note sued upon. The plaintiff also introduced in evidence a letter, signed Lowery Brothers Company, per M. M. Lowery, secretary and treasurer, urging plaintiffs to ship the fertilizer in question, explaining that Lowery Brothers Company was thoroughly solvent and that he had authority to buy fertilizer for them.

This evidence shows that M. M. Lowery had been secretary and treasurer of Lowery Brothers Company from 1911 to some date in 1914, and that he was authorized to and did purchase all the guano that the company used in 1914, the year when the fertilizer in question was bought. Having authority to purchase the fertilizer for the company, it will be presumed that he had authority to execute in behalf of the company a note for the payment of the purchase price. “The agent’s authority will be construed to include all necessary and usual means for effectually executing it.” Civil Code (1910), § 3595. There is a legal presumption, where, of course, the contrary does not appear, that one holding the office of secretary and treasurer of a corporation is a proper officer to sign for the corporation; and the onus is upon the corporation to show the contrary. Phillips v. Hudson, 9 Ga. App. 779 (73 S. E. 178); Dawson Pecan Co. v. Montezuma Co., supra. In the Phillips case, supra, the court used the following language: “Prima facie, the treasurer was the proper officer to sign for the corporation.”

The evidence showing beyond question that M. M. Lowery was secretary and treasurer of the Lowery Brothers Company'only a few days prior to the date when he signed the note sued upon, and that he had authority to purchase fertilizer for the company during the year 1914, the plaintiff, never having been notified to the contrary, had a right to presume that Lowery’s authority to purchase fertilizer in behalf of the Lowery Brothers Company continued, and still existed at the time of .the purchase. In the ease of Burch v. Americus Grocery Co., 125 Ga. 153, 155 (53 S. E. 1008-9), it was said, not only “all persons who have dealt with such agent,” but such as “have known of the agency and are apt to deal with him, have a right to presume” a continuance of his office and authority. See also Bozeman v. Small, 9 Ga. App. 29 (3) (70 S. E. 261).

We think that the trial judge erred in ruling as he did, since it is well settled that if, under the most favorable construction of the evidence, the plaintiff would have been entitled to recover, then it was error to grant a nonsuit.

This opinion deals only with the questions presented by the main bill of exceptions, as we think the headnotes sufficiently pass upon the questions raised by the cross-bill.

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

Jenkins, P. J., and Stephens, J., concur.


text:
    10893.
    Day v. Bank of Sparks.
    Decided December 16, 1919.
    Affidavit of illegality; from city court of Nashville—Judge Lovett. August 33, 1919.
    The affidavit of illegality was interposed by Mrs. H. A. Day in March, 1918, to an execution based on a judgment rendered against her and Ed. Courson in favor of the Bank of Sparks in the city court of Nashville on February-38, 1918. The grounds of the affidavit were: This defendant has never had her day in court, has never been served with a copy of said original suit, had no notice of the pendency of the suit until after judgment, did not waive service, and did not appear and plead to the suit. She traverses the return of the deputy sheriff, J. M. Studstill, “made on December 38th, 1918 [?],” and shows that said return is incorrect and untrue; and she asks that said officer be made a party to this action, for these reasons. Defendant shows that she had a good and valid defense to said suit, to wit: She at the time of the signing of “said note” was married, and she was influenced to sign the same by her husband, whose debt the signing of the note paid; it was not her debt, and she had no interest in the same; she did not get one cent from the signing of said note, and all the proceeds of the same went to her husband. The property levied on was not in any way part of the consideration for the signing of said note. She would have appeared and pleaded to the merits of the suit had she known before that it was pending against her, and she could have readily shown that she was a surety on said note, which was in reality a debt of her husband. A motion to dismiss the affidavit of illegality was sustained, on the ground that it was insufficient in law.
   Smith, J.

The affidavit of illegality in this case contained all the material allegations required by law, and therefore the court erred in dismissing it.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.

Story & Story, for plaintiff in error,

cited: Park’s Cgde, §§ 5305-7, 5311, and annotations.

TF. R. Smith, contra,

cited: 59 Ga. 467; 14 Ga. App. 790; 15 Ga. App. 162; 49 Ga. 579; 55 Ga. 677; 101 Ga. 763; 63 Ga. 481-3; 99 Ga. 145.


author: Smith, 3. 1.

text:
    10902.
    Smiley et al. v. Twitty.
   Smith, 3. 1.

“This court, by the constitutional amendment creating it, is limited in jurisdiction to the correction of errors in law alone; and therefore has no power to grant a new trial on the ground that the verdiet is strongly contrary to the weight of evidenee, if there is any evidence at all to support it.” Edge v. Thomas. 9 Ga. App. 559 (71 S. E. 875); Randall v. Bell, 12 Ga. App. 614 (77 S. E. 1132); Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732); McCarty v. Keys, 19 Ga. App. 494 (91 S. E. 875).

Decided December 16, 1919.

Complaint; from city court of Camilla—Charles Watt Jr., judge pro hac vice. July 26, 1919.

A. 8. Johnson, for plaintiffs in error.

Peacoclc & Gardner, contra.

2. The motion for a new trial embraced the usual general grounds only. There was evidence to support the verdict, which has the approval of the trial judge, and his judgment overruling the motion for a new trial is

Affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10908.
    Colvin v. Colvin.
    Decided December 16, 1919.
    Eviction; from Richmond superior court—Judge Henry C. Hammond. September 1, 1919.

      Isaac 8. Peebles Jr., for plaintiff in error.

      8am F. Garlington, contra.
   Smith, J.

Where a son acquired the legal title to certain described lands while he together with his wife and mother was living on the premises, and the mother made to him a quitclaim deed to any interest she might have in the premises, and the son permitted her to continue to live in the house with him, and after his death the property was set apart to his widow as a year’s support, the mother was a tenant at sufferance both as to her son and his widow, who succeeded to the title after the death of her husband, and a summary remedy as provided for by section 5385 of the Civil Code of 1910 was a proper proceeding to evict her from the premises. The trial court did not err in directing a verdict for the plaintiff. Kimbrough v. Kimbrough, 99 Ga. 134 (25 S. E. 176); Stanley v. Stembridge, 140 Ga. 750 (79 S. E. 842).

This ruling does not conflict with that made in Edwards v. Blackshear, ante, 622 (101 S. E. 585), as the facts are distinguishable.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10403.
    BIRMINGHAM PAPER COMPANY. v. HOLDER.
    1. The telegrams and letters set out in the petition constituted a binding contract of sale.
    2. The statement that the shipment would be made “as soon as possible" meant within a reasonable time, and was not so indefinite as to render the contract unenforceable, it being also stated that it would be 60 days before shipment could be made.

      3. The contract was not unenforceable because of failure to state whether the sale was for cash or on credit. The petition alleges that the sale was made with reference to a general custom to allow sixty-days credit.
    4. The general demurrer to the petition was properly overruled.
    5. The measure of damages being the difference between the contract price of the paper sold and its market value at the time and place at which it should have been delivered, and the only testimony as to market value being merely in the nature of opinion, the amount of damages was a jury question, and the court erred in directing a verdict for the plaintiff.
    Decided December 23, 1919.
    Action on contract; from city court of Valdosta—Judge Cranford. January 24, 1919.

      Ban. R. Bruce, for plaintiff in error.

      Patterson & Copeland, contra.
   Smith, J.

The Valdosta Paper Company on September 18, 1916, inquired by wire of the Birmingham Paper Company its best price for “King George” paper, f. o. b. Hartsville. Beply was made on that date by the Birmingham Paper Company that the best price “King George” paper was “five seventy five mill.” Thereupon and on the same day the Valdosta Paper Company addressed to the Birmingham Paper Company a letter saying, “in accordance with your wire of this date you may enter our order” for 150 rolls of “King George” paper at 5-3/4. On the same date the Birmingham Paper Company wrote to the Valdosta Paper Company as follows: “We wired you this morning price of 5-3/4 per pound on ‘King George’ f. o. b. mill. As we wrote you on August 28th, the mill is considerably behind, and it would be possibly sixty days before we could make shipment should you send us your order. Prices continue to go higher.” On September 20, 1916, the Valdosta Paper Company acknowledged receipt of the above letter and stated that if it would be sixty days before shipment could be made, the same would be satisfactory, and at the same time ordered 150 rolls more of the same grade of paper. The Birmingham Paper Company agreed to ship each of the orders, stating that it would ship “as soon as possible.”

The petition, which set out the above facts, alleged a valid and binding contract, and was sufficient to withstand a general demurrer, since it not only showed that the offer of the seller was accepted by the purchaser unequivocally, unconditionally, and without variance, but also showed a mutual assent of the parties to the same thing in the same sense.

The time agreed upon for the delivery of the paper was not so vague and indefinite as to render the entire contract unenforceable, since the correspondence between the parties showed that the seller stated in one place that it would be 60 days before shipment could be made, and in another place stated shipment would be made as soon as possible. The term “as soon as possible” means within a reasonable time, the circumstances of the case considered.

Although in the contract no terms were agreed upon as to whether the paper was sold for cash or on credit, this fact did not render the contract unenforceable, as the petition alleged, in addition to the facts already stated, that the paper was purchased with reference to a general custom wherein 60-days credit was allowed.

The court therefore did not err in overruling the general demurrer.

The measure of damages in this ease was the difference in the price at which the paper was sold and its market value at the time and place it should have been delivered; and on the trial the only evidence submitted as to the market value of the property involved being that of the plaintiff, which was in the nature of opinion evidence merely (Civil Code, § 5875; Finleyson v. International Harvester Co., 138 Ga. 247 (2), 75 S. E. 103), the court erred in directing a verdict for the plaintiff on this issue. The amount of damage, if any, to the plaintiff was purely a jury question. The question as to the value of an article is peculiarly for the jury. Jurors are not absolutely bound to accept as correct the opinion or estimate of a witness as to the value of property, although such testimony may be uneontradicted, but have the right to consider the nature of the property involved, together with any other fact or circumstance throwing light upon the question properly within their knowledge, and they may by their verdict place a lower value upon the property than that stated by the opinion or estimate given in evidence. Ga. Northern Ry. Co. v. Battle, 22 Ga. App. 665 (97 S. E. 94).

The other grounds of the amendment to the motion for a new trial are without substantial merit, and the judgment is reversed solely for the reasons given in the last preceding paragraph.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10440.
    Dodge Brothers v. Hart.
   Smith, J.

1. The petition as amended set out a cause of action, and there was no error in overruling the general demurrer. The several special demurrers are not passed upon, inasmuch as they are not insisted upon in the brief of counsel for the plaintiffs in error.

2. The contract attached to the petition in this case does not constitute a contract of bargain and sale, but is what is known as a dealer’s agreement, wherein the manufacturers of the Dodge automobile entered into a contract with R. H. Hart, granting to him the privilege of selling at a price fixed by the terms of the contract, within a certain named territory, and for a specified time, as many as 50 Dodge ears, and for each car shipped to him he was to pay an agreed price, and a draft attached to the bill of lading was to be drawn on him by Dodge Brothers. It was further agreed in the contract that either party might cancel the same on giving 15-days notice. By letters exchanged between the parties after the execution of the contract, the terms of the agreement were modified and changed to such an extent that Hart was not 'required to order in any one month or within any designated time the number of ears specified in the schedule named in the contract, but was to have the right to order cars when needed for sale. In these letters it was also agreed that Dodge Brothers were to ship cars in accordance with orders as they came from Hart, and not in compliance with the schedule contained in the contract. These letters so modified and changed the contract that Dodge Brothers were only bound to ship Hart the cars ordered by him when accepted by them; and therefore, in a suit by Hart against Dodge Brothers for a breach of this contract, he would be entitled to recover only the difference between the contract price and the price at which he was to sell such cars as had been ordered by him and accepted by Dodge Brothers.

3. The following excerpts from the charge of the court, while correct abstract statements of the law on the subject of damages, were not applicable to the facts in this case, and therefore the court erred in so charging: (1) “Remote or consequential damages are not allowed whenever they cannot be traced solely to the breach of the contract, or unless they are capable of exact computation, such as the profits which are the immediate fruits of the contract, and are independent of any collateral enterprise entered into in contemplation of the contract.” (2) “Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach, and such as the parties contemplated, when the contract was made, as the probable result of its breach.”

4. Under the ruling in paragraph 2 above, the court erred in charging the jury as follows: “By the contract in question in this case the plaintiff agreed to purchase fifty motor-cars and the defendant agreed to sell fifty cars. The contract specified the months during which shipments of such cars were to be made by the defendant to the plaintiff, and that the plaintiff was to accept and pay for such cars as shipped. The contract is, therefore, a contract of bargain and sale. Under such contract it was the duty of the defendant to make the shipments as provided for in the contract, unless it was relieved from doing so by some act of the plaintiff.” “If you believe there has been a breach of the contract by the defendant by reason of the failure of the defendant to ship any of the cars which it agreed to ship, which failure was not brought about by any failure of the plaintiff, then the plaintiff would be entitled to recover damages of the defendant for such breach; and the measure of such damages would be the difference between what the plaintiff would, under the terms of the contract, have had to pay for such cars, arid the market value of such cars as the plaintiff was prevented from reselling in the territory embraced in the contract.”

Decided December 23, 1919.

Complaint; from Fulton superior court—Judge Bell. February 7,1919.

Application for certiorari was denied by the Supreme Court.

Bloomer & McGregor, King & Spalding, for plaintiff.

Madison Richardson, Bryan & Middlebroohs, for defendant.

5. The charge that “if you find that there had been a breach of the contract and the plaintiff is entitled to damages, you will also find interest from the date of the termination of the contract or the breach of the contract at the rate of 7% per annum,” was error, but this error was cured, as the court ordered the plaintiff to write off the interest found by the jury. If interest was recoverable at all under the rulings hereinbefore set out, it was a matter for determination by the jury, and, if allowed, would be only legal interest from the breach of the contract caused by the refusal to ship cars upon the orders of the plaintiff after acceptance of such orders and within a reasonable time for shipment. All these matters were for the jury.

6. It was not error for the court to refuse the request to charge set out in the 10th ground of the amendment to the motion for a new trial. This request to charge is not complete in itself, as it fails to include one of the contentions of the plaintiff, to wit: that the defendant, notwithstanding the letters of January 11th and 12th, 1915, did accept orders for cars and failed to ship them.

7. The court erred, under the pleadings and the evidence, in refusing the request to charge as set out in the 11th ground of the amendment to the motion for a new trial (this proposition not having been covered by the charge given) : “I charge you that when the plaintiff sent to the defendant the letters of January 11th and 12th, instructing the defendant to ship no cars until advised, that these letters operated to cancel the schedule of ears set forth in the dealer’s agreement, and that the defendant was not therefore bound to make additional shipments, unless it accepted such additional orders as plaintiff gave defendant.”

(a) This is also true of the written requests to charge contained in the 12th, 13th, and 15th grounds of the amendment to the motion for a new trial.

8. The instructions set out in the 5th, 6th, 7th, 9th, and 14th grounds of the amendment to the motion for a new trial, though in some particulars not altogether accurate, do not require a reversal.

Judgment reversed.

Jenhins, P. /., and Stephens, J., concur.