text:
    9409.
    Mayor and Council of Gainesville v. Gaines.
   Broyles, P. J.

1. Under .the facts disclosed by the record the cause of action was not' barred by the statute of limitations.

2. Where a nuisance is not of a permanent nature, but one that may be abated at any time, and upon its abatement no further injury would result, the person whose land is injured by the nuisance is not entitled to recover damages for both past and prospective injuries to'the land, but can recover damages for only such injuries as were actually sustained, within the period prescribed by the statute of limitations, before the suit was brought, Langley v. Augusta, 118 Ga. 590 (45 S. E. 486, 98 Am. St. R. 133).

3. In this case the suit was for permanent injuries to land, alleged, to have been caused by a nuisance of a permanent nature, and damages for both past and prospective injuries were sought. -The defendant, the Mayor and Council of the City of Gainesville, introduced no. evidence. The. undisputed evidence introduced by the plaintiff showed that the nuisance was one that could be abated at any time, and that upon its abatement no further injury would result to his land. Under these facts, and the ruling stated above, the verdict, finding damages for both past and prospective injuries,to the land, was contrary to law and the evidence, and the court erred in overruling the motion for a new trial.'

Decided July 10, 1918.

Action-for damages; from city court of Hall county—Judge Wheeler. November 8, 1917.

C. N. Davie, W. B. Sloan, for plaintiff in error.

E. H. Perry, W. A, Charters, W. N. Oliver, contra.

4. It is unnecessary to consider the assignments of error.other than those dealt with above.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.


source: Caselaw Access Project

author: Bboyles, P. J.

license: Public Domain

text:
    9635.
    Kendall v. Goodson.
    Decided July 10, 1918.
    Action for damages; from city court of Sylvester—Judge Monk. March 5, 1918. ' ,

      Parlcer & Gibson, Perry & Williamson, for-.plaintiff in error.

      James L. Dowling, Erie B. AsTcew, contra.
   Bboyles, P. J.

1. In an action for’damages for malicious prosecution, where the petition alleges that the prosecution was without probable cause, allegations showing that the defendant appeared before the grand jury as a witness and succeeded in getting a true bill returned against the petitioner, on an indictment drawn by the solicitor-general of the circuit, do not render the petition subject to general demurrer, when it does not appear that the defendant made to the solicitor-general a fair, 'truthful, and complete statement of the facts connecting the petitioner with the alleged criminal offenses. Hicks v. Brantley, 102 Ga. 264, 273 (29 S. E. 459). See also Clark v. Douglas, 6 Ga. App. 489 (65 S. E. 304).

2. Under the foregoing ruling the court did not err in overruling the general demurrer to the petition.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


author: Luke, J.

text:
    8939.
    RAWLEIGH MEDICAL CO. v. BURNEY et al.

    1. Evidence that a letter was mailed to a named person does not raise a presumption that he received it, unless there is also evidence .that . the letter was properly addressed aiid duly stamped.
    2. The evidence in the case at bar, showing simply that the letter in question was “mailed” to the plaintiff, and being entirely silent as to whether it was .stamped, no presumption arose that the plaintiff received it; and in view of the uncontradicted testimony that the letter was never delivered to the plaintiff, the verdict in favor ^ of the defendants was without evidence to support it.
    3. Where, as in this ease, the contract of guaranty is executory, and is in form continuing, and provision has been made therein for withdrawal by the guarantor, he has the legal right to withdraw therefrom,, and will not be held liable for any indebtedness incurred after giving notice that he intends no longer to stand as guarantor; since a revocation may be effected by the voluntary act of the guarantor, if the consideration for the guaranty is not executed. 20 Cyc. 1479; Hyland v. Habich, 150 Mass. 112 (22 N. E. 765, 6 L. R. A .383, 15 Am. St. R. 174); Kernochan ®. Murray, 111 N. Y. 309 (18 N. E. 868, 2 L. R. A. 183, 7 Am. St. R. 744) ; Howe Mach. Co. ». Farrington, 82 N. Y. 121. See also Strauss V. Pearlman, 15 Ga. App. 86 (82 S. E. 578).
    4-. The assignments ,of error not dealt with above are without substantial merit, or the questions raised by them are not likely'to recur on another trial.
    Decided July 11, 1918.
    Action upon guaranty; from Jasper superior court—Judge Park. May 5, 1917.

      Hardeman, Jones, Parle & Johnston, Harry 8. Strozier, for plaintiff. Greene F. Johnson, for defendants. ,
   Luke, J.

As we view this case, its adjudication turns upon the question whether or not three named guarantors were released from their obligations as such because one of them wrote a letter addressed and mailed to the creditor, withdrawing from the guaranty. It is uncontradicted in the record that the guarantors entered into a written contract by which they undertook to guarantee the account of L. D. Moore. Subsequently Moore died a bankrupt, leaving no estate, and was at that time indebted to the plaintiff in the sum of $546.40. Suit on the contract of guaranty was thereafter brought against the three guarantors; and the sole defense pleaded was that inasmuch as one of them wrote a letter to the plaintiff, withdrawing from the guaranty, they were all released. The testimony adduced was that this letter was writteA, addressed, and mailed. However the evidence was entirely silent as to whether it was duly stamped. On the other hand, the secretary of the plaintiff company swore positively and unequivocally that no such letter was ever received by it.

It is the settled rule in this State that before the presumption of delivery or receipt of a letter arises, it must appear that it was properly addressed, duly stamped, and mailed. All of these facts must be affirmatively shown by the party asserting the mailing of the letter. In the case of National Building Asso. v. Quin, 120 Ga. 358 (47 S. E. 962), it was held that evidence that a letter was written to a given person does not authorize the presumption that he received it, unless the evidence shows also that the latter was properly addressed, duly stamped, and mailed. The Supreme Court approved this ruling in Burch v. Americus Grocery Co., 125 Ga. 153 (3), 158 (53 S. E. 1008), and in Bankers Mutual Casualty Co. v. Peoples Bank, 127 Ga. 326 (2), 327 (56 S. E. 429); and the Court of Appeals followed these decisions in the late case of Barnett v. Floyd County Nova Kola Bottling Co., 18 Ga. App. 413 (89 S. E. 490). See also, in this connection, 1 Gr. Ev. 137, note p; 35 Albany Law Journal, 82; Equitable Life Assur. Soc. v. Frommhold, 75 Ill. App. 43; Best v. Berman Ins. Co., 68 Mo. App. 598; 2 Whart. Ev. § 1323; Huntley v. Whittier, 105 Mass. 391 (7 Am. R. 536); Briggs v. Hervey, 130 Mass. 187.

Able counsel for the defendants in error, apparently recognizing that it is no longer an open question in this State that before the presumption arises that a letter has been received by ah alleged addressee, the prerequisite facts that the letter was properly addressed, duly stamped, and mailed must be affirmatively shown by the sender, argued with much force that the word “mailed,” when applied to a letter, means that it was properly prepared for transmission in the- due course of mail, and was placed in the custody of the officer charged with the duty uf forwarding the mail; and that since there was uncontradicted' testimony^ that the letter in the instant case had been “mailed” to the plaintiff, it was sufficient evidence that it had been properly directed, stamped, and delivered to the officials of the postal department for proper transmission; and that therefore the presumption arose that the plaintiff, to whom it was addressed, received it. In support of this contention numerous foreign authorities are cited, which we have carefully examined. However, the Supreme Court of this State in the case of Bankers Mutual Casualty Co. v. Peoples Bank, supra, expressly declined to follow the line of foreign authority referred to, and reversed a judgment solely because it did not appear that the letter in question was stamped and because there was positive evidence that it Was never received by the alleged addressee. In that case it was said: “There are some authorities which hold that the word ‘mailed/ when used in reference to sending matter through the mails of the United States, carries with it the presumption that the postage due on such matter has been paid. See Rolla State Bank v. Pezoldt, 95 Mo. 404 (69 S. W. 51); Words & Phrases, 4275; Pier v. Heinrichshoffen, 67 Mo. 169. But in the decision in National Building Asso. v. Quin, supra, that meaning does not seem to be given to the word ‘mailed/ it being there used to describe the mere act of depositing a letter in the mails. In this sense there might be such a thing as the mailing of an unstamped letter. The presumption that a letter has been received when intrusted to the mail for delivery is a presumption arising from the regularity in the method of business adopted by the postal authori.ties. In order for this regularity to take place, certain things must be done by the party depositing the matter for carriage in the mail; and therefore the presumption that a letter or parcel has reached its destination ought not to arise until it affirmatively appears that that which the postal authorities require to insure carriage and regularity has been done.”

The effect of what is said above is that unless it appears'affirmatively that a letter has been properly addressed, duly stamped, and deposited in the mail, no presumption of the receipt of the letter will arise; and there being in the present case, no evidence whatever that the letter in question was stamped, there was ;no presumption that it was ever received. On the other hand, there was direct uncontradicted evidence that the plaintiff company did not receive it. The verdict in favor of the defendants is therefore without evi- . dence to support it, and the judgment overruling the plaintiff’s motion for a new trial is for this reason reversed.

Judgment reversed.

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


author: Jenkins, J.

text:
    9229.
    Bankers Health & Life Insurance Co. v. Murray.
    Decided July 11, 1918.
    Certiorari; from Biehmond superior court—Judge H. C. Hammond. September 15, 1917.

      Isaac S. Peebles Jr., Lawton Nalley, for plaintiff in error.

      A. B. Williamson, J. S. Bussey Jr., contra.
   Jenkins, J.

1. Under the act of August 17, 1906 (Acts 1906, p. 107; Civil Code of 1910, § 2471), the application on which an insurance policy is based is not to be considered as part of the policy or contract between the parties, unless a copy thereof is attached to or accompanies the policy. Therefore, statements- made in the application are not to be treated as warranties or • covenants, on account of the failure or falsity of which the policy may be avoided, unless a copy of the application is attached to the policy ór accompanies it, though representations contained in the application, if fraudulently made, may give to the insurance company the right to avoid the policy. Johnson v. American Nat. Life Ins. Co., 134 Ga. 800 (68 S. E. 731); Southern Life Ins. Co. v. Logan, 9 Ga. App. 503 (71 S. E. 742).

2. While there were facts and circumstances from which the jury could have found that the policy was procured by fraud, there were other facts and circumstances in evidence tending the other way; and there was some evidence which authorized the jury to find that the decedent was in good health at the time the insurance was issued, as required by the terms of the policy.

Judgment affirmed.

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


text:
    9251.
    Planters Bank v. Brown.
   Jenkins, J.

To a suit by the Planters Bank, of Yatesville, Georgia, against J. G. Brown, upon an unconditional promise in writing to pay, the defendant pleaded failure of consideration and fraud in the procurement of the note, alleging: (1) that the note was given for the purchase of certain shares of stock in the plaintiff bank, which stock is entirely worthless, and that he was induced to sign the subscription note (of which the note sued on is a renewal) by the promise and agreement, then made by the agent of . the promoter of the proposed corporation, that the defendant would not in fact have to pay any cash, as provided by the terms of the note, but that the promoter would himself pay into the corporation for the defendant the amount called for by the instrument, and that the dividends and profits accruing from the business would within a stated period pay off and discharge the obligation created by the written promise sued on; (2) that.at the time he made his subscription and signed the note, it was represented to Mm by the ■said agent of the promoter of the proposed corporation that a named individual, in whose business integrity and ability the defendant reposed confidence, was a bona fide subscriber to the stock of the corporation, and that by virtue of this representation he was induced to subscribe to the stock and'sign his note therefor, whereas in fact the alleged subscription was not bona fide; that the individual thus named as a subscriber neither paid nor was to pay anything under his subscription, but that it was made and accepted only for the fraudulent purpose of inducing others to subscribe. At the trial, the court, over objection, allowed the defendant to testify in support of these allegations as to the promise and statements made to -him to induce him to sign the note. The jury found for the defendant, and the case came to this court on exceptions to the overruling of a motion for a new trial, in which error was assigned on the admission of this testimony. Held:

Decided July 11, 1918.

Complaint; from city court of Columbus—Judge Tigner. September 26, 1917.

J. R. Davis, for plaintiff. J. F. Hatchett, for defendant.

1. The general rule which ordinarily permits the consideration of a written contract to be inquired into where the controversy is between the- original parties does not authorize the promisor to alter or deny the terms of the obligation, and1 thereby convert an unconditional promise into one which is dependent upon the happening of contingencies. Dinkler v. Baer, 92 Ga. 432 (3) (17 S. E. 953); Byrd v. Marietta Fertilizer Co., 127 Ga. 30 (56 S. E. 86); Rheney v. Anderson, 22 Ga. App. 417 (96 S. E. 217).

2. The mere fact that the evidence shows that the individual who was named to the defendant as a subscriber may at the time of his subscription have entered into a' contract with the promoter of the enterprise that the latter should take over the subscription, at that subscriber’s option, within a period of twelve months, is nqt sufficient to vitiate the defendant’s obligation, under his plea of fraud.

. Judgment reversed.

Wade, G. J., and Luke, J., concur.


author: Wade, C. J.

text:
    9672.
    State Life Insurance Company v. Anderson.
    Decided July 11, 1918.
    Complaint; from city court of Atheps—Judge West. March 9, 1918.

      Green & Michael, O. J. Tolmos, for plaintiff in error.

      Thomas J. Shaclcelford, contra.
   Wade, C. J.

There are no special assignments of error, and though the testimony was apparently somewhat indefinite, there was some evidence to support the verdict, which has the approval of the trial judge; and therefore the judgment overruling the motion for a new trial is

Affirmed.

Jenkins and Luke, JJ., concur.


author: Etnas, J.

text:
    9785.
    George F. Eubanks Mantel Co. v. Atkinson et al., trustees.
    Decided July 11, 1918.
    Certiorari; from Fulton superior court—Judge Bell. April 19, 1918.

      Georgp B. Bush, for plaintiff.

      Colquitt & Conyers, for.defendants.
   Etnas, J.

1. It is mow a settled rule that this court will not reverse judgments of lower courts on questions of fact, where there is any evidence to sustain the verdict or judgment complained of.

2. There was evidence to support the judgment rendered in the municipal court.

3. An exception based upon the admission of certain testimony too indefinite to have been harmful to the plaintiff is without merit, whether the testimony was admissible .or not.

4. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

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


text:
    9788.
    Alley v. Elliott-Madison Company.
   Wade, C. J.

1. “The plaintiff in certiorari shall cause written notice to be given to the opposite party in interest, his agent, or attorney, of the sanction of the writ of certiorari, and also the time and place of hearing, at least ten days before the sitting of the court to which the same shall be returnable, and in default of such notice (unless prevented by unavoidable cause) the certiorari shall be dismissed.” Civil Code, § 5190.

2. While it has been held that the following acknowledgment, endorsed on the petition and signed by counsel for the defendant in certiorari, ' was sufficient evidence that he “not only waived written notice of the time and place of hearing, but also received due and legal notice of the judge’s sanction,” to wit: “Due and legal service of the within petition for certiorari and certiorari acknowledged; notice of time and place of hearing waived” (Asher v. Cape, 95 Ga. 31, 22 S. E. 41), in this case no written notice was given to the opposite party in interest, his agent, or attorney, of the sanction of the'writ of ‘certiorari and of the time and place of hearing, and the only acknowledgment or waiver of notice made by counsel for the defendant in certiorari was the following: “Due and legal notice of the sanction of the writ of certiorari in the foregoing ease acknowledged.” No reference whatever was made therein to “the time and place of hearing,” and the acknowledgement of notice of'the sanction of the writ was therefore insufficient to prevent the dismissal of the certiorari upon motion. The cases of McAlister v. State, 77 Ga. 599 (3 S. E. 163), and American Bonding & Surety Co. v. Adams, 124 Ga. 510 (52 S. E. 622), are not in conflict with this ruling.

Decided July 11, 1918.

Certiorari; from Fulton superior court—Judge Bell. April 8, 1918.

B. B. Jackson, for plaintiff in error.

Emile Breibenbucher, M. Eerzberg, contra.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Bloodworth, J.

text:
    9374.
    POTTS v. MOULTRIE BANKING COMPANY.
    1. On the trial of a suit against a hank, an agent of the plaintiff is not competent to testify in behalf of the plaintiff as to transactions or communications solely with a deceased cashier of the bank.
    2. To authorize a recovery because of a local custom alleged to be a part of the contract on which the suit is based, it must appear that both parties knew of and contracted with special reference to that custom.
    Decided July 11, 1918.
    Complaint; from Colquitt superior court—Judge Thomas. November 1, 1917.

      Barker & Gibson, for plaintiff. Shipp & Kline, for defendant.
   Bloodworth, J.

Potts gave his note to the Moultrie Banking Company, and, as a part of the collateral to secure its payment, turned over to the banking company a rent note given him by Phelps, a tenant of his. In the fall of the year in which both notes were due, Phelps, under the instructions of Potts, delivered to the Moultrie Banking Company receipts for 13 hales of cotton stored in the Farmers and Merchants Warehouse at Moultrie, Georgia, the receipts to be held'by the bank “as collateral security for both of the notes.” The cotton was destroyed by fire, and Potts sued the Moultrie Banking Company, setting out these facts and further alleging, in his petition as amended, that “the warehouse receipts 'herein specified were by the said M. T. Phelps delivered to Z. H. Clark, the then cashier of the defendant’s hank, and in charge of its office and business, and at the time of 'this delivery the said Clark instructed the said M. T.' Phelps not to have said cotton insured, or insurance written covering said property; he, the said Clark, then and there stating and promising-the said M. T. Phelps that he, the said Clark, as agent of the defendant bank, would procure fire insurance to be written insuring said cotton against loss by fire.” It is further alleged: “that it was the universal ■ custom of all banks in the city of Moultrie, where said defendant bank is located, and in said county, during the year 1914 and prior thereto, to insure all cotton held by them and all cotton for which receipts were deposited as collateral with such banks; that this was particularly the usage of trade with the defendant during the period specified; that it was the general and well-known custom and usage of the defendant bank to procure insurance for all cotton held by it as collateral; that defendant did actually insure its own cotton and that of other people when so deposited with it, and that it did insure other cotton of the plaintiff left with defendant by the plaintiff as collateral during the same year and prior to the date on which plaintiff left the cotton described in the fourth paragraph of the original petition to have been left. Plaintiff further shows that it was the habit of dealing between plaintiff and defendant, as fixed by the settled, understood, .and mutually recognized policy and custom of said defendant bank, so to procure insurance on all cotton, when the receipts for which were left or deposited with said defendant as collateral securitiés hy the plaintiff'; that this existing custom had become so fixed and settled between plaintiff and defendant, by the usage of trade and by the previous dealings, of the parties, as to become a .part of the contract of the bailment.under the law; that defendant was-under a duty to insure the- above-described cotton to its full value for a period of such bailment, and that having failed and neglected to do so, and the said cotton being destroyed during such period of the bailment, as hereinbefore set out in the petition, defendant is therefore liable to plaintiff for the resulting damage as set forth in the seventh paragraph of the original petition.”

TJpon the trial the plaintiff offered to prove by Phelps- that at the time the receipts were delivered to Clark, the cashier of the bank, Clark told Phelps not to have the cotton insured, “that the Moultrie Banking Company carried insurance in its own name on all cotton deposited with them by its customers, and that the bank would have this particular cotton insured for its full market value.” The plaintiff offered also to introduce testimony of the same witness as follows: “I was not the agent for plaintiff, Potts, or for the bank; my agency for Potts was limited to delivering the warehouse- receipts to the bank. I have no interest in the' result of this casé.” (The original petition contained the allegation that Phelps was acting as agent for Potts, but this allegation was stricken by amendment.) This testimony was rejected “on the ground that, the transaction having occurred between witness and the cashier, now deceased, said witness is not competent to testify to the facts stated.” The plaintiff offered to prove by witnesses that it was the general custom of all the banks in Moultrie, where defendant bank was located, to insure cotton deposited with them as collateral security, and that this custom was followed by that bank. The plaintiff offered also to testify as follows: “I had other cotton deposited with the Moultrie Banking Company at the time of ' the fire which destroyed the Farmers’ & Merchants’ Warehouse, which other cotton was insured by the Moultrie Banking Company, and for which cotton the Moultrie Bank paid me; that the defendant bank carried insurance on other cotton held by it for its other customers, whose cotton they held as collateral security, but that they neglected to insure, these particular thirteen bales of cotton. I also, at the same time, had cotton deposited with the Citizens Bank of Moultrie, and the Citizens Bank had insured the cotton so deposited by me with it against loss by fire; that some of the cotton so deposited with the Citizens Bank was destroyed in the same fire; that the Citizens Bank collected the insurance on the cotton so deposited with it,- which was destroyed by fire, and gave me credit for the amount collected.” The court rejected all this testimony. The plaintiff announced closed, and on motion of the defendant a nonsuit was granted, and the plaintiff e&cepted.

Where it appears undisputed that the cashier of a bank is dead, transactions relating to the business of the bank which were conducted solely by the deceased cashier with an agent of the plaintiff, are inadmissible in evidence in a suit between the bank and the other party. Civil Code (1910), § 5858 (5).

If the court erred in rejecting the evidence offered by the plaintiff as to the custom of the banks.of Moultrie, and which is copied in the foregoing statement of facts, the error was harmless ; for if the evidence admitted was supplemented by that which was rejected, the whole would not be sufficient to authorize a verdict for plaintiff. In Hendricks v. Middlebrooks Co., 118 Ga. 131 (44 S. E. 835), Chief Justice Simmons said: “In the Political Code, § 1, par. 4, it is expressly declared that ‘Thé custom of any business or trade shall be binding only when, it is of such universal practice as to justify the conclusion that it became, by implication, a part of the .contract.’ A mere local custom or business usage which springs up in a particular city is not) therefore, 'binding except upon those who have recognized it in their own transactions and thus adopted it for their own dealings.’ Miller v. Moore, 83 Ga. 685 [10 S. E. 360, 6 L. R. A. 374, 20 Am. St. R. 329], As to one who has never recognized the existence of such a custpm, his assent thereto can not reasonably be inferred, unless it affirmatively appears that he had knowledge thereof at the time he contracted. Kelly v. Kaufman, 92 Ga. 105 [18 S. E. 363]; American Sugar Co. v. McGhee, 96 Ga. 27 [21 S. E. 383]; Horan v. Strachan, 86 Ga. 408 [12 S. E. 678, 22 Am. St. R. 471]. And it necessarily follows that unless he did in fact have such knowledge, and actually contracted with reference to such- custom, he is not in a position to assert that it became, by implication, a part of a contract into which he and another entered, whether the latter had or had not, in prior dealings with others, given recognition to the custom. Sugart v. Mays, 54 Ga. 554. This is so for the simple reason that to so assert would do violence to the real truth of the matter. As has been seen, the plaintiff alleged that 'It is the custom with the grocers of Macon and with the said W. G. Middle-brooks Co. to furnish an itemized statement of all accounts upon request of debtor for same.’ He did not, however, undertake to say that he contracted with reference to this alleged local usage, or that he had any knowledge of the same at the time he bought goods from that firm, or even that this custom was in existence at that time.” It is further said in the opinion (p. 139) that in the petition there must be an unequivocal averment that in point of fact the plaintiff knew of and contracted with reference to the local'custom. If it is necessary that this be alleged in the petition, it is necessary that these facts be. proved, and neither in the ■ evidence admitted nor in that' rejected is -there anything to show that plaintiff contracted with reference to the alleged local custom. On the contrary, as far as the evidence tends to show any contract, it was a special and Verbal one made by the cashier with Phelps, the agent of the plaintiff, and without reference by either of these parties to any custom. However, Phelps. swore: “Mr. Potts did not give me any instructions with reference to having his cotton insured.” There is no evidence to show that Phelps ever told Potts what Clark, the cashier, is alleged to have stated about insuring the cotton. Therefore no contract was entered into between the bank and Potts. Indeed, counsel for the plaintiff in . error admit this, and place his right to recover squarely on the custom. Plaintiff in error further insists that the evidence should not have been rejected, because it showed “a habit of dealing between the parties,” and, on account of this “habit,” insists that the bank is liable because it did not insure the cotton. With this 'contention we can not agree. The isolated fact that the plaintiff had cotton deposited with the Citizens Bank of Moultrie, and the Citizens Bank had insured the cotton so deposited with it against loss by fire, and that some of the cotton was destroyed in the same fire, and that the Citizens Bank collected the insurance on the cotton so deposited with it, and paid the plaintiff therefor, is not sufficient to show" a “habit.” It is not alleged or proved that this lot of cotton was insured because of the alleged' custom. There may have been a separate and independent contract as to this.

In the absence of the evidence as to the transaction with the bank cashier, ¿nd as to the custom of the bank, there was no evidence to authorize a finding for the plaintiff, and the court, on motion, properly directed a verdict for the defendant.

Judgment affirmed.

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


text:
    9387.
    Pound, administrator, v. Harris.
    Decided July 11, 1918.
    Complaint; from city court of Sparta—Judge Moore. November 8, 1917.

      R. L. Merritt, for plaintiff in error.

      Jordan & Harris, T. M. Hunt, contra.
   Bloodworth, J.

This was a suit on account for services rendered by a physician. That the services wére rendered is admitted. The only question was the amount. There was ample evidence to support the verdict rendered, and the amount thereof was below the maximum that could have been found under the facts proved. If error was committed,' either in the admission of evidence or in the charge of the court, it was not of such a character as to warrant a reversal of the judgment. Frey v. Blackwell, 7 Ga. App. 425.

Judgment affirmed.

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


text:
    8936.
    SPRINGFIELD FIRE AND MARINE INSURANCE COMPANY v. CHERO COLA BOTTLING COMPANY.
    The insurance policy on which this suit was based was, according to its terms, void, because the title to the property covered by it was not in the assured, having been conveyed by a bill of sale executed by the assured, as security for a debt, before the issuance of the policy.
    The evidence does not support the contention that the bill of sale was infected with usury, and therefore was void. Under the evidence, the transaction must be treated as having been closed on March 5, the date shown by the bill of sale, and not on March 8, the date borne by the note representing the secured debt; and so treating it, there was no usury in it.
    Decided July 12, 1918.
    Action on insurance policy; from Wilkes superior court—Judge Walker. May 9, 1917.

      Smith, Hammond & Smith, O. E. Sutton, for plaintiff in error.

      J. M. Pitner, W. A. Slaton, contra.
   Jenkins, J.

The Springfield Fire and Marine Insurance Company issued a policy of insurance in the amount of $1;000 to the Chero Cola Bottling Company on May 22, 1915, for the term of one year, covering a certain automobile truck, which the assured in its suit alleges was totally destroyed by fire pn April 24, 1916, entailing a loss of the full value thereof, amounting to $1,300. In the defense filed by the insurance company it is alleged that the policy was, according to its own terms and provisions, violated and rendered inoperative by reason of the fact that the interest of the insured was not truly stated therein, and that the “interest of the insured was other than unconditional and sole ownership,” as required by the policy, in that prior to the date of its issuance the title to the property covered by the contract had been conveyed under a bill of sale executed by the assured to the Washington Exchange Bank. A further condition of the policy was pleaded, in which it was provided that “This entire policy shall be void in ease of fraud or false swearing by the insured touching any matter relating to this insurance or the subject-matter thereof, whether before or after loss,” the defendant averring that the plaintiff, in its proofs of loss, was guilty of violating these terms of the contract by its misrepresentation and concealment of the'facts as to the property being in any way encumbered. The plaintiff sought to meet these defenses by 'showing that the bill of sale referred to as executed by it to the Washington Exchange Bank, though absolute on its face, was in fact a sale to secure a debt, .and that usury was included in that transaction, and the instrument was therefore void, and consequently there had been no chahge of title. The verdict was for the plaintiff in the sum of $600. The defendant excepts to the refusal of its motion for a new trial.

The conveyance of title above referred to being a valid one, the policy, according to its terms, was thereby rendered inoperative and void. Though the note to the bank bears date as of March 8, the transaction must, under the evidence, be treated as having been in fact closed on March 5, which is in fact the date shown by the bill of sale, and therefore the discount included in the note was not usurious. ■

Judgment reversed.

}Yade, C. J., and Lulce, J., concur.


author: Pee Curiam.

text:
    8949, 8950.
    Arnold v. Water Power Mining Company; and vice versa.

    Decided July 12, 1918.
    Eviction; from Lumpkin superior court—Judge J. B. Jones. October 18, 1916.
    1. The motion to which'the decision refers in paragraph 1 is a motion to strike the ease from the docket of the Court of Appeal?, on the ground that, "the case not having been disposed of at the first or second term after the writ of error was received by the Supreme Court,” from which it was transferred to the Court of Appeals, "it stands affirmed under the constitution;” citing art. 6, sec. 2, par. 6 (Civil Code of 1910, § 6503); amendment creating Court of Appeals (§ 6506); amendment changing jurisdiction of these courts (Park’s Ann. Code, Supp. 1917, §§ 6502, 6506); Arnold v. Water Power and Mining Co., 147 Ga. 91; AtIcins Nat. BanJc v. Harmon, 19 Ga. App. 657; Barnhart v. Atlanta

      & West Point R. Co., 133 Ga. 59. The bill of exceptions was filed* in the Supreme Court on October 31, 1916, and the case was argued there during the October term (on January 15, 1917); and, by a decision rendered at the March term, 1917, that court decided that it had no jurisdiction of the ease, and that the Court of Appeals had jurisdiction; and the case was accordingly transferred to the Court of Appeals (147 Ga. 91). In-this motion it was contended that the Supreme Court lost jurisdiction and the Court of Appeals acquired jurisdiction of the case immediately on the ratification of the amendment to the constitution, changing the jurisdiction of these courts.
   Pee Curiam.

1. The motion to strike is without merit.

2. The court did not err in overruling the demurrers to the defendant’s pleas.

3. The evidence being in material conflict, and the verdict not being demanded, the court erred in directing a verdict.

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

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

2. The nature of the defense referred to in paragraph 2 of the decision is indicated in the report of this case in 147 Ga. 91. The plaintiff demurred orally to an amendment to the defendaiit’s counter-affidavit, in which this defense was set up; and by cross-bill of exceptions the plaintiff assigned error on the overruling of the demurrer.

3. The court directed a verdict finding the issue in favor of the plaintiff, and finding $909.98 as rent; to which defendant excepted.'

(Certiorari to review this decision was granted by the Supreme Court.)

II. H. Perry, R. II. Baker, for Arnold.

O. J. Lilly, W. A. Charters, contra.


text:
    9096.
    SMITH v. MERCHANTS AND FARMERS BANK.
    1. The entry of dismissal, as made on the docket by the' trial judge, not having been challenged by a direct proceeding for the purpose of vacating it, must be taken as conclusive proof of dismissal of the suit to which it refers. a
    2. A subsequent suit for the same cause of action could not be maintained without payment of costs of the dismissed suit, or without ah affidavit in forma pauperis in lieu thereof, before commencing the second suit.
    Decided July 12, 1918.
    Complaint; from city court of Thomasville—Judge "W. H. Hammond. July 14, 1917.

      Clifford B. Hay, for plaintiff in error.

      Titus, Dekle & Hopkins, contra.
   Jenkins, J.

On October 24, 1916, the plaintiff bank sued out an attachment in the city court of Thomasville against the defendant Smith, which was levied and returned. Subsequently the plaintiff duly filed its declaration therein, setting up its claim upon a certain promissory note. .To that proceeding the defendant made his appearance, entering a traverse to the grounds of attachment and filing an answer to the declaration. . On January 10, 1917, the plaintiff > brought the present suit against the defendant on the same note. To this action the defendant filed a plea in abatement, setting up the former proceeding, and alleging, first, the dismissal of that proceeding and the commencing of the second without payment of the costs of the former proceeding, and without an affidavit made in lieu thereof; and,-second, that if the attachment suit should for any reason be treated as yet pending, the present suit should abate on the ground that the pendency .-of the former suit is a good defense to the latter when commenced at a different time. On the trial of these pleas the plaintiff introduced the trial docket of the court, on which appeared, in the handwriting of the judge, opposite the entry of the attachment case, the following entry: “December term, 1916. Declaration filed, pnswer filed. Case dismissed by plff. without prejudice.” No direct proceeding to attack the truth of this entry was instituted, but-evidence aliunde was introduced on behalf of both plaintiff and defendant for the purpose of showing, that .the attachment suit was not, or was in fact, dismissed. It appeared that the costs of the former proceeding were not paid, and that no affidavit in forma pauperis had been filed in lieu of such payment, before commencing the present suit. The trial judge directed a verdict against the plea in abatement, and a verdict for the plaintiff on the note.

The dockets, minutes, and records of a court of record must be kept so as to represent the true state of its business, and from them the court, without the aid of a jury, must be able to ascertain what cases are pending, and what are not pending. “Trial by inspection, not by jury, is the method appointed by law for the solution of such a question.” Armstrong v. Lewis, 61 Ga. 680. If they fail to speak the truth in respect to the pendency or the disposition of any case, the court, in a direct proceeding for that purpose, may, on sufficient evidence aliunde, have them corrected; but they can not be attacked collaterally for alleged errors or deficiencies. The entry of dismissal as made upon the docket by the trial judge not having been challenged by a direct proceeding for the purpose of vacating the entry, it must be taken as conclusive proof of the prior dismissal of the attachment suit. Thornton v. Perry, 101 Ga. 608, 614 (29 S. E. 24).

The previous action by attachment, against both the property and the person, having been dismissed, a subsequent suit in the same cause can not be maintained, until the cost in the former proceeding is paid or pauper’s affidavit made in lieu thereof. Civil Code (1910), § 5625.

Judgment reversed.

Wade, G. J., and Lulce, 'J„ concur.


text:
    9224.
    SHIELDS v. CARTER et al.

    1. There is no merit in the contention that the court erred in charging the provisions of section 5732 of the Civil Code (1910), relating to the proper rules for determining where the preponderance of evidence lies, without further instructing the jury that in thus weighing testimony the witness must he of equal credibility. The code section, as given in full to the jury, includes within itself the duty of considering the credibility of witnesses, along with the other rules there laid down for their guidance. In the case of L. & N. RaUroad Co. v. Rogers, 136 Ga. 674 (3), 676 (71 S. E. 1102), the error lay in presenting the other rules governing the weight of testimony, while omitting any proper instruction to the. effect that the credibility of witnesses is also to be considered in connection therewith.
    2. Where a suit against a warehouseman is based solely upon the alleged breach of an expressed contract, and the court properly charges the jury upon the rules of law pertaining to the rights of plaintiff and the liability of defendant under the contentions as made, it is not error for the court to omit froth its charge the principle of law embodied in section 3503 of the- Civil Code (1910), governing the liability of ware-housemen for a failure to exercise ordinary diligence.
    3. Entries made in the regular and usual course of business, and which it was the custom and duty of the enterer in such manner to make, are ordinarily admissible as a circumstance on behalf of a -defendant making them for the purpose of corroborating his denial of the plaintiff’s claim.
    Decided July 12, 1918.
    Action for breach of contract; from Jackson superior court— A. C. Wheeler, judge pro hac vice. September 1, 1917.
    J. C. Shields sued W. A. and J. Z. Carter as warehousemen; alleging: that in March, 1914, he stored with defendants 58 bales of cotton; that at the time the cotton was stored, it was agreed between the plaintiff and the defendants that defendants would charge him twenty-five cents a hale per month to store and insure the same, and that it was expressly agreed hy the defendants that the cotton should be stored and insured, and be kept fully insured by the defendants for its full value; that on or about May 23, 1914, the warehouse of the defendants and the plaintiff’s cotton stored therein were entirely destroyed hy fire; that after the fire it developed that the cotton, was never insured hy the defendants as they undertook to do; that the cotton at the time it was destroyed was worth $3,993.78; and the plaintiff sued for this amount, alleging that his loss occurred by'virtue of the defendants’ failure to comply with their contract. The plaintiff alleged also a breach of the warehousemen’s duty of ordinary diligence, but by an amendment to the petition, expressly waived the tort, and relied solely upon the breach of the alleged contract. The defendants denied that there was any such contract as alleged hy plaintiff, and in their answer set up that the cotton was brought to the warehouse by the plaintiff, with the understanding simply that he was to pile it up in the warehouse, and he was afterwards to decide whether or hot he would have it weighed and insured; that in the event he decided to have the cotton weighed and insured, he was to so' notify defendants, who would then issue to him a warehouse receipt or certificate for the cotton after it was,, weighed, showing that it was insured; that the cotton was placed in the warehouse • in accordance with this understanding; that it was never weighed by the ■ defendants, nor did they agree to insure ij¡, because they were not requested to do so; that the plaintiff never paid nor agreed to pay them anything for storing the cotton, nor did he ever ask or instruct them to weigh and insure the same. One of the grounds of the motion for a new trial is to the effect that the court erred in admitting in evidence, over the plaintiff’s objection, the warehouse books of defendant, purporting to be a record of all cotton stored'and insured by defendant, and which did not include a record of the cotton involved in the suit; the objection made being that this hook was merely a self-serving declaration of defendant, made in his own interest, and was for this reason inadmissible.

      T. W. Ruclcer, Erwin, Rucker & Erwin, J. A. B. Mahaffey, for plaintiff.
    P. Cooley, W. W. Stark, for defendants.
   Jenkins, J.

(After stating the foregoing facts.) Some elaboration of the third headnote seems appropriate. Under the law as it originally obtained, a party was not permitted to prove his account by his own testimony, and for this reason it was necessary for him to show by the clerk who actually furnished the articles that the charge was a proper one. From the necessity of the case it was therefore held, in early decisions of the Supreme Court, that under certain conditions accounts of merchants and shopkeepers might be proved by the introduction of their books, provided it was shown that no clerk was kept, or that for any reason he could not testify. These rulings afterwards became embodied in the code, and by legislative enactment were extended so as to apply not only to merchants and shopkeepers, but also to physicians and blacksmiths, and finally to farmers, dairymen, and planters, and all other persons doing a regular business and keeping daily entries thereof. After the change in the law,' whereby parties themselves became competent witnesses, these provisions of the code, although in effect a departure from the general rule against the admission of declarations of a party in his own interest, were nevertheless retained. It was stated by Judge Bleckley in Petit v. Teal, 57 Ga. 145, 148, that while this change in the law might have a bearing upon the subject, since the necessity for the rule had abated in force, it was nevertheless his opinion that even though "the party himself had been made competent to testify, the book should still be admissible as tending to support his credit. See also Reviere v. Powell, 61 Ga. 30, 32 (34 Am. R. 94). Since, however, as already stated, the provision of law permitting the proof of accounts by such books of entry still remains embodied in the law of the code (Civil Code of 1910, § 5769), it would seem that where no clerk is kept, or where for any reason the clerk is unable to testify, such books are still admissible, not only for the purpose of corroborating the testimony of the party, but also in order to actually prove the account,, where it can not otherwise be definitely established. Harper v. Hammond, 13 Ga. App. 238 (3), 240 (79 S. E. 44). It has been held by this court that even though no proof is made that no clerk was kept, or that he was unable to testify, such books are nevertheless admissible for the purpose of corroboration. Bush v. Fourcher, 3 Ga. App. 43 (59 S. E. 459); Tifton &c. Railway Co. v. Butler, 4 Ga. App. 191 (60 S. E. 1087); May v. McCarty, 11 Ga. App. 454 (75 S. E. 672). In the case now before us no objection to the introduction of the defendants’ books is made upon the ground that no foundation therefor had been laid, and therefore w.e will only consider the ground of objection actually raised. Bond v. Watson, 20 Ga. 135; Cox v. Cody, 75 Ga. 175; Giles v. Vandiver, 91 Ga. 192 (17 S. E. 115).

The contention of the plaintiff is that the books of defendant were merely self-serving declarations made in his own interest, and were for that reason inadmissible. It is true, as already slated, that the admission of a party’s books of account in his own behalf is in any case a departure from the general rules of evidence. Harrold v. Smith, 107 Ga. 849, 851 (33 S. E. 640). Code section 5769, supra, provides that certain books of account, upon compliance with named conditions, are admissible as proof of accounts. Are such books likewise admissible on behalf of a defendant as tending to disprove a claim made by 'the opposite party ? In Petit y. Teal, supra, the books offered by defendant were held incompetent, but not for the reason that they were offered by the defendant in disproof of the .items of suit. They were held inadmissible upon the principle of another rule, to the effect that book entries are not competent to prove casual cash advances not made in the regular and usual course of the business involved, since in such a case it ought to be within the power of the party to furnish a higher form of testimony, such as a receipt taken or a note given. See 10 R. C. L. 1187, § 384. This rule was also recognized in Ilarrold Y. Smith, supra, but there the books offered by the defendant were rejected for the'reason that they appeared to be mutilated. In neither of these cases is there any intimation by the court that had these books been properly kept and had they pertained to items'of competent subject-matter, they would have been inadmissible on behalf of the defendant keeping them, under the general rules of evidence. See also Gandhl v. Shore, 24 Ga. 17. In our opinion, entries made in the regular and usual course of business, and which it was the custom and duty of the enterer in such manner to make, are ordinarily admissible as a circumstance on behalf of the defendant making them, for the purpose of corroborating his denial of the plaintiff’s claim. 5 Enc. Ev. 263 (7). It has been sometimes stated that-books of account are admissible only as affirmative evidence, and not for the purpose of establishing a negative proposition. 10 R. C. L. 1187, § 383; 52 L. R. A. 689, note X, appended to the decision in Hall v. Chambersburg Woolen Co., 187 Pa. 18 (40 Atl. 986, 67 Am. St. R. 563). In the instant case no objection is made to their admission on this ground. Moreover, there are numerous decisions.to the effect that where in the regular course of business certain entries should appear upon an appropriate record, if certain transactions were had, the production of such record showing the omission of such entries is some evidence to be taken as a circumstance tending to support the credibility of positive testimony which negatives the actuality of such transactions. 5 Enc. Ev. 267 (10).

Judgment, affirmed.

Wade, G. J., and Luke, J., concur.


text:
    9240.
    Smith v. City of Atlanta.
   Jenkins, J.

1. The measure of damage- to abutting property caused by changing the grade of a street is the difference between the market value of the property before and after the change of grade. City of Atlanta v. Atlas Realty Co., 17 Ga. App. 426 (87 S. E. 698), and cases cited.

2. In a suit against a municipality for damage to abutting property from changing the grade of the street in front of the property, testimony as to the value of other abutting lots similarly affected by reason of the change in the grade of the street would be relevant. Hurt v. Atlanta, 100 Ga. 274 (28 S. E. 65); Mayor &c. of Americus v. Tower, 3 Ga. App. 159 (59 S. E. 434).

3. While testimony to the effect that as soon as the agitation of the movement to change tile grade of the street was begun, but before any work was actually commenced, the market value of similar abutting properties began to increase, could not be admissible for the purpose of showing an actual enhancement of the market value of the property in dispute by reason of the change, of which the city could avail itself, still, since the evidence thus adduced was relevant for the purpose of throwing light upon the actual value of the property prior to the change (Gate City Terminal Co. v. Thrower, 136 Ga. 456, 465 (3), 71 S. E. 903), and as the trial judge gave to the jury the correct measure of damages, this evidence does' not afford a ground of complaint to the plaintiff.

4. It is alleged that the court erred in permitting the witness M. F. Amorous to testify from a certain blue-print or plat of Ivy street, showing the change from the old to the new grade on that street, and that the court erred in allowing the witness to refresh his memory from this plat, it being in evidence that he did not make the plat, and was without knowledge of its making. Held:. A witness may refresh and assist his memory by the use of any written instrument or memorandum, and. it is not essential that the memorandum should have been made by the witness himself, provided he finally speaks from his recollection thus refreshed; but in order to testify positively from the paper itself, lie must either have made the paper himself, or if not so made, at some time when the facts were fresh in his memory, he must have known the facts stated in the paper to be correct'. Civil Code (1910), § 5873; Lenney v. Finley, 118 Ga. 427 (45 S. E. 317); Shrouder v. State, 121 Ga. 615 (49 S. E. 702); Georgia Excelsior Co. v. Harlfelder-Garbult Co., 12 Ga. App. 797 (78 S. E. 611). From an examination of the brief of evidence it appears that the witness, after having testified from memory as to the changes in the grade of the street, upon having the plat presented to him, further testified: “The statements I made are in accordance with this map exactly; I don’t need any refreshing, because this map bears out the statements I made exactly.” It thus appears that the witness did not testify from the plat or blue-print itself, nor in fact did he even refresh his memory by reference thereto.

Decided July 12, 1918.

Action for damages; from Fulton superior court—Judge Bell. September 15, 1917'.

Rosser, Slaton, Phillips & Hopkins, for plaintiff.

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

5. Under the foregoing rulings, grounds 1 to 15 (inclusive) of the amendment to the motion for a new trial are without merit.

6. There was no error in the excerpt from the charge of the court complained of in the remaining special ground of the motion for a new trial; there was ample evidence to authorize the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, G. J., and Luhe, J., concur.


text:
    9446.
    Moultrie Grocery Co. v. Holmes-Hartsfield Co.
   Jenkins, J.

1. Where a sale of merchandise in bulk is made without compliance with the provisions of the act approved August 17, 1903 (Civil Code of 1910, §§ 3226 et seq.), the purchaser is liable in garnishment to a creditor of the vendor, although the purchaser may have disposed of the goods prior to the service on him of the process of garnishment. Jaques & Tinsley Co. v. Carstarphen Co., 131 Ga. 1 (62 S. E. 82). The fact that the debtor was a partnership, and that prior to the illegal sale to the garnishee one of the partners had sold out his interest to the other, would not defeat the -rights of the creditor.

2. The question as to whether or not a judgment in favor of a subsequent purchaser from the garnishee, under a claim filed under an attachment levy instituted by the creditor against the -original debtor, amounts to an adjudication in favor of such garnishee that the sale to him was not - fraudulent, is not involved where in 1 the garnishment proceeding no such defense is pleaded. Sumner v. Sumner, 121 Ga. 1 (6), 10 (48 S. E. 727); Reid v. Caldwell, 120 Ga. 718 (4) (48 S. E. 191).

Decided July 12, 1918.

Garnishment; from Colquitt superior court—Judge Thomas. November 24,1917.

W. F. Way, for plaintiff in error. Parker &■ Gibson, contra.

3. The purchaser of merchandise in bulk is not relieved from the duty of notifying the creditors of the vendor of such proposed sale, as prescribed by section 3227 of the Civil Code, by reason of a verbal notice given to them by the vendor himself. i

4. The court did not err. in refusing .to allow the garnishee to go behind the judgment setting up the amount due the garnishing creditor by the principal debtor.

Judgment affirmed.

Wade, C. J., and Luke, J., eoneur.


text:
    9450.
    Jones v. Wall.
    Decided July 12, 1918.
    Complaint; from Columbia superior court—Judge H. C. Hammon. December 14, 1917.

      H. 8. Jones, for plaintiff in error. I. S. Peebles Jr., contra.
   Jenkins, J.

1. “This court can not consider exceptions to the refusal of the trial judge to comply with written requests to charge, unless it is made to appear that they were tendered to the court before the jury retired to consider the case.” Seaboard Air-Line Ry. v. Barrow, 18 Ga. App. 261 (89 S. E. 383). It not being so made to appear in this case, the first and second grounds of the amendment to the motion for a new trial are without merit.

2. “Where a fact is established by undisputed evidence, it is not error for the judge, in his charge to the jury, to assume or intimate that the fact has been proved.” Dexter Banking Co. v. McCook, 7 Ga. App. 436 (67 S. E. 113); Ga., Fla. & Ala. Ry. Co. v. Jernigan, 128 Ga. 501 (57 S. E. 791). The third ground of the amendment to the motion for a new trial is without merit, since it comes properly within this rule.

3. There being sufficient evidence to authorize the verdict, which has the approval of the trial, judge, this court is without authority to set the verdict aside.

Judgment affirmed.

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


text:
    9313.
    DORRIS et al. v. FARMERS & MERCHANTS BANK.
    1. The court did not err in any of its rulings as complained of in the first amendment to the motion for a new trial.
    (a) Remarks made by the trial judge in a colloquy with counsel, which counsel contend were of such a character as to prejudice the .minds of the juiy, should be excepted to at the time, and can not, after verdict, be made the basis o"f a ground of a motion for new trial.
    2. All who deal with a corporation as such are estopped from denying its corporate existence.

      (a) The execution of the note sued on was sufficiently proved, to render it admissible in evidence.
    3. “The transferee of a negotiable paper who receives it before it is due can not be affected by any agreement or understanding between other parties to the paper, unless notice of such’agreement or understanding is brought home to the transferee.” t

    4. Under the rulings made when this ease was before the Supreme Court (144 Ga. 233 (4)), the trial judge did not err in ruling out “a certified copy of certain proceedings before the railroad commission and the decision of the railroad commission thereon.”
    5. “The mere fact that there are conflicts in the testimony does not render the direction of a verdict in favor of a party erroneous, when it appears that the conflicts are immaterial, and that, giving to the opposite party the benefit of the most favorable view of the evidence as a whole and of all legitimate inferences therefrom, the verdict against him is demanded. ”

    Decided July 12, 1918.
    Complaint; from' Milton superior court—Judge Pendleton presiding. September 22, 1917.

      George F. Gober, G. B. Walher, W. I. Heyward, fer plaintiffs in error.

      O. L. Harris, H. L. Patterson, contra.
   Bloodworth, J.

After the decision of the Supreme Court in this case as reported in 144 Ga. 233, the plaintiff amended his petition by alleging that the note sued on was indorsed “Roswell Construction Company, by J. L. Murphy, Treas.,” and by further alleging that “said note was indorsed to petitioner by the Roswell Construction Company, and before petitioner purchased the same it was indorsed by the Roswell Construction Company as follows: Roswell Construction Company, -by J. L. Murphy, Treas.” Defendants amended their plea as follows: “These defendants charge and allege: that the indorsement and transfer' on said note sued on by J. L. Murphy, treasurer of the Roswell Construction Company, to plaintiff was unauthorized, and that said J. L. Murphy ■ did not have the power or authority under the by-laws or the charter of said company to transfer said paper by'indorsing the same in the manner and form as set forth on said note. Defendants deny the title of plaintiff to said note, and deny both the genuineness and legality of the indorsement of the Eoswell Construction Company on the back thereof, and deny that the said indorsement was authorized by said company, and deny that the title to said note has ever passed out of said company, and [say] that the indorsement [was] not the indorsement of the Eoswell Construction Company. Defendants say that J. L. Murphy had no power or authority to indorse the note of the Eoswell Construction Company, for the reason that the Eoswell Construction Company was never legally organized; that the ten per cent, of the capital stock was not paid in; therefore they had no right or authority to transact any business whatever. Defendants; for further plea, say that, the Eoswell Construction Company never having been legally organized, there could be no board of directors who would .have power or authority to elect a board of directors or secretary or treasurer who under the law would or could have power or authority to make any contracts in the name of the Eoswell Construction Company, or to sell or to transfer any note or contract made payable to the Eoswell Construction Company. For further plea these defendants deny that the note sued on, payable to the Eoswell Construction Company,' was ever legally sold and the title thereto transferred to the Farmers & Merchants Bank, and that the said plaintiffs have no right or title to the note sued upon.”

The evidence showed: that Dorris and Eeece executed an ordinary promissory note payable to the order of Eoswell Construction Company; that the treasurer of the payee was endeavoring to discount the note to the plaintiff, and J. P. Brooke, one of the defendants, who at that time had no connection with the note, told the cashier of the bank that the makers were “good men and that their note was absolutely gilt-edge;” whereupon the cashier said: “You don’t mind indorsing it then?” Brooke said “No,” and thereupon signed an agreement as follows: “For value received I hereby guarantee the payment of the within note and any renewal of the same, said note being for the principal sum of $1,-000.00, bearing interest at 8% and payable to the Eoswell Construction Co., or order, on Nov.' 1, 1911, signed by J. L. Dorris and ,J. C. Beece, in force and effect as a joint maker primarily liable thereon. This, the-1st day'of April, 1911.” The bank then traded for the note, issued a certificate of deposit payable to the Boswell Construction Company, and delivered this certificate to the treasurer of the company, and “the Boswell Construction Company got the money.” Upon failure to pay the note suit was brought, and, after the evidence was all in, the judge directed a verdict for the plaintiff. The defendants excepted.

The court committed no error in its rulings complained of in the first ground of the amendment to the motion for new trial. Although the by-laws of the company were not introduced to- show the authority of the treasurer to transfer the note sued on, yet, without objection, it was shown that the company received the money from the discount of the note, that the money was turned into the treasury and used for the purposes of the company, and that .the treasurer “transacted business for the company of that kind.” Under these circumstances the company itself could not receive" and retain the proceeds of the note, and then repudiate the act of its treasurer. “Aggregate corporations at this day usually contract through the intervention of agents duly authorized for this purpose. 10 Mass. R. 397; 1 N. & M. 231; 8 Conn. 191. A contract or promise by a corporation need not always be made or proved by express vote, but may be implied from corporate acts. 7 Greenleaf, 118. A contract or promise of a corporation is implied by law, from the authorized acts of their agents. 3 Halstead, 182; 8 Pick. 178. If a person, assuming to act as agent, b.ut without legal authority, make a contract, and the corporation receive the benefit of it, such acts will ratify the contract and render the corporation liable thereon. 1 Pick. 372; 19 Johns, 60. The foregoing are now assumed as axiomatic propositions, and are conclusive upon this view of the subject.” Butts v. Cuthbertson, 6 Ga. 166, 171. If, under the circumstances stated above, the corporation was bound and could not complain that the transfer was illegal and unauthorized, it follows that under the facts of this case the court did not err in allowing the person representing the corporation as “treasurer” to testify that he was treasurer of the company, transacted business of that kind for the company, and that the Boswell Construction .Company received and used the money realized from the discount of the note.

In the same ground of the motion for a new trial it is urged that, in a colloquy with counsel the court erred in saying, “I think the treasurer .of the corporation could transfer its obligations.” It does not appear from the record that any exception to this remark was taken when it was made. ' Such questions can not be raised for the first time in a motion for new trial. Freeman v. Petty, 22 Ga. App. 199 (95 S. E. 737); Perdue v. State, 135 Ga. 277 (69 S. E. 184).

It is alleged that the court erred in admitting in evidence the note sued on, which was indorsed as follows: “Roswell Construction Company, by J. L. Murphy, Treas.” The objections were: “Because the evidence showed that the Roswell Construction Company had a capital stock of $200,000 and not one dollar of it fyad ever been paid in; also that the Atlanta and Northeastern Railroad Company had a capital stock of $420,000 and not one dollar of that had ever been paid in, and these corporations and each -of them had no right to do business, and that the transfer of this note in a business way was the doing of a business, and that for this reason said note should be excluded, there having been filed a plea of non est factum as to the indorse^ ment upon the note. Defendants objected to the introduction of said note with the indorsement thereon, for the reason that the indorsement was the ‘Roswell Construction Company, by J. L. Murphy, Treas./ and the plaintiffs had not shown any authority on his part to indorse said note and make said transfer, and had not shown any by-laws authorizing him to make such transfer and indorse said note, and the mere fact that he signed as treasurer did not give him the implied authority to make said transfer, his right and authority to transfer said note having been denied on oath by a plea of non est factum denying his authority to make such transfer, and movants insist that for each and all of these reasons the court committed error in admitting said note in evidence.” The latter proposition is the same as that discussed in the first division of this opinion. The Atlanta and Northeastern Railroad Company seems to have had nothing to do with the transaction in question; and the defendants, having dealt with the Roswell Construction Company as a corporation, are estopped from' denying its corporate existence. Civil Code (1910), § 2226; Edenfield v. Bank of Millen, 7 Ga. App. 645 (3), 648 (67 S. E. 896). The execution of the note was sufficiently proved to admit it in evidence. Christie v. Shingler, 10 Ga. App. 529 (78 S. E. 751). See also Wikle v. Avary, 12 Ga. App. 148 (76 S. E. 1039); Brown v. Bank of Cumming, 144 Ga. 655 (87 S. E. 887).

The court did not err in rejecting as evidence a certain contract between the Boswell Construction Company and Dorris and Beece, there being no evidence whatever that the Farmers & Merchants Bank had notice of the agreement; either at or before the time it purchased the note. “The transferee of a negotiable paper who receives it before it is due can not be affected by any agreement or understanding between other parties to the paper, unless notice of such agreement or understanding is brought home to the transferee. Wooten v. Inman, 33 Ga. 41. If A signs'his name to a blank note and delivers it to B, designating the payee to be filled in the note by B, A constitutes B his agent for that purpose, and A will be bound to a bona fide holder of the note who became such before maturity, although B violated the private understanding between A and himself with reference to the note. Moody v. Threlkeld, 13 Ga. 55.” Wilkes v. Pope, 4 Ga. App. 36 (60 S. E. 823); Hancock v. Empire Cotton Oil Co., 17 Ga. App. 170, 186 (86 S. E. 434).

The court did not err in ruling out “a certified copy of certain proceedings before the railroad commission, and the decision of the railroad commission thereon, the same being an application on the part of the Atlanta Northeastern Bailroad Company to issue bonds and which said application was signed by J. L. Murphy, and sworn to by him, and the said Murphy having been upon the stand as a witness for the plaintiff in the instant case.” Dorris v. Farmers & Merchants Bank, 144 Ga. 233 (4) (86 S. E. 1093).

The trial judge did not err in directing a verdict for the plaintiff. “ ‘The, mere fact that there are conflicts in the testimony does not render the direction of a verdict in favor of a party erroneous, when it appears that -the conflicts are immaterial, and that, giving to the opposite party the benefit of the most favorable view of the evidence as a whole and of all legitimate inferences therefrom, the verdict against him is demanded.' Sanders Mfg. Co. v. Dollar Savings Bank, 110 Ga. 559 [35 S. E. 777].” Shedd v. Standard Sewing Machine Co., 21 Ga. App. 373 (94 S. E. 646).

Judgment affirmed.

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


text:
    9292.
    Reece et al. v. Citizens Bank of Roswell.
   Jenkins, J.

This was a suit by the Citizens Bank of Roswell as indorsee of a promissory note. The defendant makers of the note' pleaded failure of consideration, and that the plaintiff was not an innocent purchaser for value, before due, and without notice. Upon the trial of the .case J. 0. Reece, one of the defendants, testified as follows: “Mr. Fowler, the cashier of the Citizens Bank, called me over the telephone and asked me about trading for it [the note], and I told him there was a contract out and he had better hold up on the note a few days. . . Some few days after that ... I met him and Col. Broadwell [attorney* for the bank] between the store and my house in the road there, and he said that Mr. Murphy [an officer of the payee company] had come up there and offered him a discount on the note, . , and if it was all right, he wanted to trade for it. I told him there was a contract out, and if they complied with the contract I would have the note to pay. He did not ask me what the contract was, and I did not tell him. I told him I had the contract with Murphy. . . I told him there was a bond out. I don’t remember whether I told him I hadn’t got the bond or not. I told him that the contract hadn’t been complied with. I told him the Roswell Construction Company [the payee] had not complied with the contract, but they said they were going to. . . . I told,him the note was all right if they complied with the contract, and if they didn’t, it was not. . . When they came to see me up there at my home, I did not exhibit that contract to Mr. Broad-well or Mr. Fowler. I didn’t have it. . . I said there that the note was out, and I would have to pay it, provided the contract was complied with. I further stated that I had as soon the bank at Roswell would have it as anybody else, because I was a stockholder at that bank.” It was contended on the part of the defendants that, under the circumstances shown by this evidence, the bank, in purchasing the note,, took it subject to the equities between the makers and the payee; that it was a question for the jury whether the bank was a bona fide holder without notice; and that for this reason, among others, the court erred ■ in directing a verdict for the plaintiff.

I. Knowledge on the part of the holder of a negotiable note that it was given in consideration of an executory contract or based upon an executory agreement with the payee, even though such consideration or agreement should be expressed in the instrument itself, will not deprive the indorsee of the character of a bona fide, holder, unless he had notice of the breach of such agreement by the payee (Bloodworth v. Woodward, 20 Ga. App. 570, 573 (93 S. E. 221, and cases there cited) ; and while the rule is that “any circumstances which would place a prudent man upon his guard, in purchasing negotiable paper, shall be sufficient to constitute notice to a purchaser of such paper before it is due” (Civil Code of 1910, § 4291), and while in a particular ease the character and sufficiency of the circumstances which should place a prudent man on his guard áre to be determined as questions of fact by the jury, and not by the judge as questions of law (Fidelity Trust Co. v. Mays, 142 Ga. 821, 83 S. E. 961; Park v. Buxton, 10 Ga. App. 356, 73 S. E. 557), still, in the application of these rules, the question is not whether the circumstances were such as might reasonably put the indorsee upon notice that the consideration could fail, but whether they were sufficient ,to put him on notice it must fail or actually had failed.

Decided July 11, 1918.

Complaint; from Milton superior court—Judge Pendleton presiding. October 13, 1917.

George F. Gober, G. B. Wallcer, W. I. Heyward, for plaintiffs in error. Fred. Morris, George D. Anderson, contra.

2. The grounds of the motion for a new trial not covered by the foregoing ruling are controlled by the decision of this court in the case of Dorris v. Farmers <6 Merchants Bank, ante, 514. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Bloodworth, J. Bloodworth, J.

text:
    9367.
    CARHART v. MACKLE et al.

    The word “cause,” as used in § 6138 of the Civil Code (1910), refers to the entire question being litigated under the petition, and the “cause” can not be carried to an'appellate .court while any portion of the cause is pending in the court below, “unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff, in error, would have been a final disposition of the cause, or final as to some material party thereto,”—that is, unless a final disposition of the cause, or a disposition of it final as to a material party, would have been made ‘if the court had rendered a decision or judgment such as the complaining party contends should have been rendered instead of that complained of.
    Decided July 12, 1918.
    Judgment amended July 31, 1918.
    Action for damages; from city court of Atlanta—Judge Reid, October 20, 1917.

      Moore & Pomeroy, Charles E. CoUerill, for plaintiff.

      Norman I. Miller, for defendants.
   Bloodworth, J.

Carbart brought suit against Mackle and McAuley. The petition as amended contained two counts. We quote enough only of each to show their character. The first count charges that the defendants, “without probable cause and with, malice . . , procured to be issued from. the municipal court of Atlanta a warrant charging the petitioner with the crime of larceny after trust, “upon which petitioner was arrested and deprived of his liberty and required to give bond for his appearanee to answer said heinous offense.” The second count charges that “on Sunday, the 24th day of September, 1916, the defendants herein caused two of the city detectives to come to the home of petitioner and place him under arrest, without warrant or authority. Said detectives detained petitioner in custody without warrant or authority at the direction of said defendants and by their, procurement, for several hours, but later releasing petitioner from custody.”

Demurrers to the petition, both general and special, were filed by each defendant; and on each of these the. following order was passed: “Upon hearing of foregoing demurrer and argument, it is ordered that the general demurrer to the first count of petition be and is hereby sustained, and the special demurrer to paragraph. 21 of second count, as to failure to allege' the names and capacity of the alleged arresting persons, is hereby sustained, with leave to amend within ten days from date, otherwise petition will stand dismissed at end of that time. Other grounds of special demurrer of second count are overruled and general demurrer of second count not now passed upon. This Oct. 20, 1917.” To the order, sustaining the general demurrer and dismissing the first count of the petition the plaintiff excepted. The case was brought to this court, and the defendant filed a motion to dismiss the bill of exceptions, on the following grounds: “1. The bill of exceptions is prematurely brought, because th'e case is still pending in the court below. 2. The bill of exceptions and writ of error are premature because the case is still pending in the city court of Atlanta, in that count 2 of -plaintiff’s petition is still pending and undetermined therein. 3. The judgment rendered could not be considered as a final judgment, except as to one of the counts, namely count 1 of plaintiff’s petition, and the case is still pending as to the other count, namely count 2, so that said judgment is not final, either as to the issues or as to the parties. 4. Because the bill of exceptions does not contain any sufficient specification of error.”

Section 6138 of the Civil Code. (1910) provides: “No cause shall be carried-to the Supreme Court upon any bill of exceptions, so long as the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause, or final as to some material party thereto; but, at any stage of the cause, either party may file his exceptions to any decision, sentence, or decree of the superior court; and if the same is certified and allowed, it shall be entered of record in the cause; and should the case at its final determination be carried by writ of error to the Supreme Court by either party, error may be assigned upon such bill of exceptions, and a reversal and new trial may be allowed thereon, when it is manifest that such erroneous decision of the court has or may have affected tlie final result of the case.” We think the word “cause,” as used in this statute, refers to the entire case, the entire suit or litigation, and the entire question being litigated under the petition; and as long as any portion of the “cause” is pending in the court below, the “carise” can not be carried to an'appellate court, “unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a'final disposition of the cause, or final as to some material party thereto.” Jones v. Daniel, 106 Ga. 850 (33 S. E. 41); Ross v. Mercer, 115 Ga. 353 (41 S. E. 594); State Mutual L. & A. Asso. v. Kemp, 115 Ga. 355 (41 S. E. 652); Fugazzi V. Tomlinson, 119 Ga. 622 (46 S. E. 831); McElroy v. State, 123 Ga. 546 (51 S. E. 596); Smith v. Estes, 128 Ga. 368, 370 (57 S. E. 685); Hightower v. State, 22 Ga. App. 276 (95 S. E. 873). Bouvier defines the word “cause,” in practice, thus: “Cause is a contested question before a court of justice; it is a suit or action.” Bouvier also says: “A final 'judgment is one which puts an end to the suit;” and Blackstone (3 Bl. Com., 398) says: “Final judgments aré such as at once put an end to the action by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for.” See the case of Nacoochee Hydraulic Mining Co. v. Davis, 40 Ga. 309. Chief Justice Brown, in closing the opinion in the case just referred to, quotes the language of Chief Justice Taney in the case of Forgay v. Conrad, 6 Howard, 201, as follows: “In limiting the right of appeal to final decrees, it was obviously the object of the law to save the unnecessary expense and delay of repeated appeals in the same suit, and have the whole case and every matter in controversy in it, decided in a single appeal.” In the case of Barnard v. Gibson, 7 Howard, 650, Mr. Justice McLain, delivering the opinion, said: “No point is better settled in this court than that an appeal may be prosecuted only from a final decree. The cases are numerous where appeals have been dismissed because the decree of the court was not final.” In the case of Zorn v. Lamar, 71 Ga. 80, the 2d headnote is as follows: “Unless the judgment excepted to be final, 'or would have been final if ruled as desired by the excepting party, there can be no writ of error. While the case is pending below, it can not be brought here unless the judgment here would finally dispose of it as respects the plaintiff in error.” And in the opinion in that case Jackson, C. J., said: “Unless the judgment were final, or would have been final if the point had been ruled as desired by the plaintiff in error, there can be no writ of error here; or, in other words, while the cause is pending below, it can not be brought here, unless the judgment here would finally dispose of it as respects the plaintiff in error. . . As long as a defendant remains in the court below or other issues remain untried there, the ease is pending there, and no final judgment has' been had, so as to allow the complainant or plaintiff below to except otherwise than pendente lite.” In the case of Thomasville Iron Works v. Clark, 16 Ga. App. 537 (85 S. E. 674), Judge Wade said (p. 539) : “When the rights of all" parties can be preserved by the filing of exceptions pendente lite, and the entire case, after it has been finally disposed of; can be considered and reviewed (Civil Code, § 6138), it is entirely unreasonable to expect this court to expend the time and energy necessary to take several bites from one cherry, rather than to masticate and digest the whole (including the stone) at one time.” See also Harrell v. Southern Ry. Co., 13 Ga. App. 409. (79 S. E. 240); Case Threshing Machine Co. v. Hodges, 9 Ga. App. 722 (72 S. E. 189); Case v. Ladd, 84 Mass. 130; Phelps v. Fickes, 63 Ill. 201; Smith Bridge Co. v. Louisville &c. Ry. Co., 72 Ill. 506; Greig v. Elliott, 29 Colo. 283 (68 Pac. 237).

As, under our laws, there can be no Writ of error which is not based on a final judgment, and this ease is still pending in the trial court, it follows that the writ of errbr must be

Dismissed.

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

ON MOTION TO AMEND JUDGMENT.

Bloodworth, J.

A motion was made to amend the judgment “in this cause (dismissing plaintiff’s bill of exceptions) by ordering in lieu thereof that the -copy of plaintiff’s bill of exceptions retained in the office of the clerk- of the court below shall operate ■ as a bill of exceptions pendente lite,” and it was alleged in said motion that “the question of practice involved was novel” and that “prior to the decision in this case (dismissing plaintiff’s bill of exceptions) there had been no previous decision of this court or of the Supreme Court of Georgia holding precisely that no direct bill of exceptions might be taken to’an order dismissing on general demurrer one separate count in a petition so long as another count, setting up a different cause of action, had not finally been disposed of by the trial court. The practice in other jurisdictions, depending on statutes somewhat analogous to the statutes in Georgia, is not uniform; and in the Federal courts there is a conflict of decision.” For the special reasons assigned in the motion, the judgment formerly rendered is so amended as to provide that the copy of the plaintiff’s bill of exceptions retained in the office of the clerk of the court below shall operate as a bill of exceptions pendente lite.

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