text:
    7702.
    GEORGIA COTTON COMPANY v. CENTRAL OF GEORGIA RAILWAY COMPANY.
    •■The provisions of § 6137 of the Alabama Code of 1907, as to the mailing of notice to consignees by common carriers on the arrival of freight, have no application to the responsibility of railway companies of that State as insurers of freight when under the contract the shipment is intended to be delivered at a private or other siding, even though such siding be within the corporate limits of a city having a daily mail.
    Decided March 20, 1917.
    Complaint; from city court of Savannah—Judge Ereeman. April 24, 1916.

      Adams & Adams, for plaintiff.

      Lawton & Cunningham, II. W. Johnson, for defendant.
   Jenkins, J.

This was a suit in the city court of Savannah, by the Georgia Cotton Company, as shipper and consignee, against the Central of- Georgia Railway Company, for the value of sixty-', five bales of cotton, transported over the lines of the defendant from several points in Alabama to Troy, Alabama. The entire shipment being within the State of Alabama, counsel for both parties properly agreed to try the' case according to the Alabama decisions. There was no disputed issue of fact, and, after the submission of the evidence on behalf of both parties, each of .them asked that a verdict be directed in its favor. The trial judge directed a verdict in favor of the railway company.

It appears that the cars containing these sixty-five bales, of cotton were burned while on the tracks alongside the west, platform of the Atlantic Compress Company, at Troy, Alabama, in a fire which originated in and which destroyed the compress. It was not contended that the defendant was in any wise responsible for the fire, or negligent in any act pertaining thereto. The ears containing the cotton involved in the litigation were detached and placed on the side-track along the platform of the compress company about 6 o’clock, p. m., November 23, 1910, and the fire destroying the cars and their contents occurred about 5 o’clock, a. m., ,on the following morning, November 24, prior to the hour at which the compress company would have opened for business had not the. 24th been Thanksgiving day, a legal holiday. The railway company having admitted its receipt of the cotton for transportation, and the value of the cotton, pleaded that it had, before the destruction of the property, fully complied with its contract of shipment, by delivering the cotton to the duly authorized agent of the plaintiff, só as to relieve it entirely from further responsibility therefor. In furtherance of this defense it set up in its answer two distinct theories.

(1) According to the evidence of Carter, manager for the plaintiff company, the following written order was in force at the time of the shipment: “Troy, Ala., Sept. 1st, 1908. Central of Georgia Eailway Company, Troy, Ala. You are hereby authorized and directed to deliver to the Atlantic Compress Company all cotton owned by or consigned to the undersigned or to our order at Troy, Ala., and also to deliver in the same manner ' all cotton shipped to ‘order notify’ of which we are or shall become owners by transfer, assignment, or endorsement of the bill of lading. The compress will receive and receipt to you for all such cotton as our agent. But it is expressly agreed that such delivery shall not opérate to cancel or release your carrier’s lien on any cotton on which freight charges have not been regularly paid. The order shall remain in full force and effect until revoked in writing, pp. Georgia Cotton Co., M. H. Carter.” According to Carter’s evidence the cotton in question was “not intended for sale or delivery by the Georgia Cotton Company, at Troy, but was intended for reshipment.'” He testified that the cotton company did not desire and had not required cotton deliveries to be made at the regular depot or warehouse of the railroad company at Troy, but did desire and had required it to be delivered on the said regular side-track of the compress company, running along the western side of the com- ' press and known as the compress and guano side-track. . He further stated in his testimony, that it had been the custom for the plaintiff’s cotton to be placed on this side-track at night when the freight so arrived. According to his evidence, the purpose of the cotton company in having the cotton sent to this side-track was that it might be reweighed and -classed at the compress, although it further appears, from the evidence, that the railway company might proceed to have such cotton compressed when so delivered, and, if objection thereto was made by the shipper, a different and higher freight rate might be charged. Evidence was adduced in behalf of the defendant from W. T. Steeger, the manager of the compress company, showing that prior to the said shipment an oral agreement had been entered into between him, as such manager, and Boone, the agent of the railway company at Troy, whereby the railway company was to furnish to the compress company an abstract showing the car numbers and contents, relating to all cotton delivered on the said track after the closing hours, this abstract to be given to the night-watchman of the compress company. This arrangement, as to the method of delivery after business hours, had been suggested by him, as manager of the compress company, and was made in order to facilitate the handling of cotton in the early morning, and in order to avoid delay in the unloading of the cotton. He testified that this arrangement had been in force from 1906 until and including November 24, 1910. The evidence ■ showed that the plaintiff itself had no knowledge of such arrangement. Steeger stated that this oral agreement as to the delivery of shipments of cotton after business hours, while it accorded, as he understood it, with the usual written contract as subsequently entered into between the railroad and the compress company as to the delivery of cotton, had also been made,-as to the details,- for what he considered to be the best interests of the parties concerned. The evidence for the defendant showed that the conductor of the railway company had placed and detached the cars containing this cotton on this side-track to the compress platform about six o’clock p. m., November 23, 1910, and that an abstract showing the numbers and contents of the cars so placed was taken to the office of the superintendent of the compress company and placed upon his desk about eleven o’clock, p. m., of the same evening by the cashier of the railway company’s freight office at Troy, and that the night-watchman of the' compress company had been notified that the abstract had been left on the superintendent’s desk.

(2) The defendant further pleaded the provisions' of section 5 of the bills of lading under which the shipments were made, and which were attached by the plaintiff to his petition, to wit: “Property destined to or taken from a station, wharf, or landing at which there is no regular appointed agent shall be entirely at risk of owner after unloading from ears or vessels or until loaded into cars or vessels, and when received from or delivered on private or other sidings, wharves, or landings, shall be at owner’s risk until the cars are attached to and after they are detached from trains, or until’ loaded into and after unloaded from vessels.”

There seems to be no question that, for several years prior to the shipment involved, all the plaintiff’s cotton had been regularly delivered by the railway company, in cars on this side-track of the compress company platform at Troy, and that plaintiff had knowledge of this fact. The testimony of Carter, the manager for plaintiff company, of Steeger, manager of thé compress company, and of Boone, the agent of the railway company, at Troy, all agreed as to this. The evidence of Carter indicated that this side-track adjacent to the platform of the compress company was used exclusively for the purposes of the compress company, and was not a public track used by the railway company for its general business, and that it was generally kno.wn as the side-track of the compress company. There was some evidence, however, showing that occasionally this track was used, at a point opposite the extreme south end of the compress, for unloading freight for another party, and also that it was used by the railway company to obtain access to the storage house of the Standard Chemical & Oil Company, which is at the extreme southern end of this track and across the street from the compress company. All the witnesses seemed to agree, however, that the track adjacent to the platform of the compress company was used primarily and almost exclusively for the purposes of the compress company, and the president of the compress company testified that it was located on the property of the Troy Compress Company, which at the time of this shipment was operated by the Atlantic Compress Company.

1. The plaintiff, in his petition, set forth § 6137 of the Code of Alabama of 1907, which provides as follows: “A common carrier, if the place of the destination of freight is a city or town having a daily mail, is not relieved from liability as a common carrier by reason of a deposit or storage of freight in a depot or warehouse, unless, within twenty-four hours after the arrival of such freight, notice thereof is given to the consignee, personally or through the mail; and if notice is given through the mail, the postage must, by the consignee, be refunded to the carrier.” The rule as to the time when the liability of a railway company as a common carrier ceases, under the Alabama law, appears to be different from the rule which obtains in Georgia. Our State follows what is known as the Massachusetts rule (embraced in § 2730 of our Civil Code), to the effect that when the transportation is ended and the goods are ready for delivery at destination, the liability imposed as a common carrier is ended; but Alabama follows what is known as the New Hampshire rule, as interpreted by the Michigan court, through Judge Cooley,- to the effect that the carrier is liable as an insurer, not only during the transit, but until it has notified the consignee of the arrival of the goods at the point of destination, and until he has had a reasonable time to effect their removal. McMillan v. Michigan S. & N. I. R. Co., 16 Mich. 100 (93 Am. D. 208). Quite a clear and concise discussion of the different rules of liability will be found in 18 L. R. A. (N. S.) 427, in a note to the case of Poythress v. Durham & S. Ry. Co., 148 N. C. 391 (62 S. E. 515). In the decision, as well as in the note here referred to, each rule is stated, with citations showing the States in which it has been followed, and it is said that the New Hampshire rule is followed by most of the courts of this country, including those of Alabama. In L. & N. R. Co. v. Oden, 80 Ala. 38, which appears to be a leading Alabama case, the Supreme Court of that State says (p. 41) : “Hntil the consignee has had a reasonable opportunity to remove the goods, the liability of the railroad company as a common carrier continues; but on his failure to do so, the company is only responsible thereafter as a warehouseman or keeper for hire.” In Collins v. Ala. G. S. R. Co., 104 Ala. 395 (16 So. 140), the Supreme Court of Alabama says: “According to the decisions of this court, without reference to any statute on the subject, the liability of a railroad company as a common carrier of goods transported over its line does not cease on the arrival of the goods at their destination and their deposit there in a -warehouse, but continues until the lapse of a reasonable time for the removal of the goods by the consignee, and its liability as a warehouseman does not begin until its liability as a common carrier has ceased. Columbus &c. R. Co. v. Ludden, 89 Ala. 613 (7 So. 471); Anniston &c. R. Co. v. Ledbetter, 92 Ala. 326 (9 So. 73). As a general rule, the undertaking of a common carrier to transport goods to a particular destination includes the obligation of a safe delivery of them to the consignee.”

Section 6137, pleaded in the petition, and which provides how a common carrier may be absolved from liability as an insurer on arrival of freight at its depot or warehouse, sets forth, in effect, that a common carrier is not relieved from such liability, even after the goods are deposited in its depot or warehouse, unless, within twenty-four hours after the arrival of the freight, notice is given the consignee, personally or through the mail. This statute has, of course, been before the Alabama courts a number of times. It was doubtless intended to settle the question in Alabama—about which the decisions of many States are in conflict—■ as to whether or not a consignee must be notified of the arrival of goods, and also to fix the time when the liability as a common carrier ceases. In Central of Ga. Ry. Co. v. Burton, 165 Ala. 425 (51 So. 643), the court, in discussing this statute, said, with reference to a town having a daily mail, “ Of course the statute applied to continue the relation as common carrier, unless the notice provided for was given.” In Hearn v. Louisville & Nashville R. Co., 6 Ala. App. 483 (60 So. 600), this statute was before the Alabama Court of Appeals, and it appears that not only must the twenty-four hours expire, but also forty-eight hours after the giving of the notice, there being another Alabama statute allowing the consignee this additional forty-eight hours to remove his freight.

Thus, it would appear that the Alabama statute and decisions have rendered quite clear the determination of the question as to when the liability of a railway company in that State terminates as that of a common carrier and begins as that of a warehouseman; and had the cotton involved in the present transaction been carried by the railway company to its depot or warehouse, its liability, under the facts outlined, would have been manifest. In the instant case, however, the question would appear to be, not whether the railway company was liable as an insurer, by virtue of its duties as a common carrier, or as a warehouseman, under the rule applying where the shipment had been delivered to its depot or warehouse and the notice given, but rather the question is as to whether, at the time of the destruction of the property, the liability of the defendant had altogether ceased by virtue of the delivery of the freight to the consignee, through its duly authorized agent. If this be correct, as to the issues involved in the case at bar, then the Alabama statute and decisions relied upon by the plaintiff in error, and which distinguish the liability of a common carrier as an insurer and as a warehouseman, could have no relevancy to the question we are called upon to determine. This would seem to be certainly true unless the written order given by the plaintiff to the railway company, authorizing and directing it to deliver its cotton to the Atlantic Compress Company, meant that all such deliveries should be made from the depot or warehouse of the railway company in the usual way. If it must be conclusively presumed from the quoted authority given by the plaintiff to the defendant that such was the intention of the parties, then the Alabama code-section and the rulings thereon, referred to, would have a proper and controlling application. We think, however, that all the evidence in the case clearly indicates that it was the intention of both parties, the cotton company and the railway company, that such shipments should be delivered to the compress company, not from the depot or warehouse of the railway company, but at the sidetrack along the plant of the plaintiff’s agent, the compress company. It will be recalled that Carter himself testified that this had been the custom in previous deliveries, and that cotton reaching Troy at night hajl been then placed upon the side-track referred to. Thus, the shipment not being intended for delivery from the depot or warehouse of the railway company, we think the provisions of the Alabama code-section have no application to the case at bar, since the statutory notice therein provided for relates only to deliveries by the railway company from its own depot or warehouse.

In the rulings of the Supreme Court of Alabama it has been held that a railway company may, by custom or contract, make valid delivery of freight by merely placing the car upon a sidetrack in a place where there is no agent of the company to receive it, and this is true when neither the consignee nor any one representing him is there to accept the freight. See South & North Ala. R. Co. v. Wood, 66 Ala. 167 (41 Am. R. 749), s. c. 71 Ala. 215 (46 Am. R. 309); So. Ry. v. Barclay, 1 Ala. App. 348 (56 So. 26). If it were true that'the cotton involved in the present litigation had been taken by the railway company to its depot or ivarehouse for delivery, then we would not be inclined to think that such a contract as is relied upon in the present case would be binding, under the rulings made in that State, although, under Alabama decisions, even Avhere delivery is intended to be made from the company’s own depot, the rules of liability can be modified by contract made between the parties. The tendency of the courts'of that State seems to be to limit, rather than enlarge, such right of contract. In the case of Steele v. Townsend, 37 Ala. 247 (79 Am. D. 49), the court says: “It is of the utmost importance to the commerce of the country that carriers should be held to a strict accountability. On this subject, Ave concur in the remarks of Chief Justice Gibson, that 'though it is perhaps too late to say that a carrier may not accept his charge in special terms, it is not too late to say that the policy which dictates the rule of the common law requires that exceptions to it be strictly interpreted, and that it is his duty to bring his case strictly within them.’ Atwood v. Transportation Co., 9 Watts, 87 [34 Am. D. 503], This is especially so in reference to exceptions inserted in bills of lading.” In Louisville & N. R. Co. v. Oden, 80 Ala. 38, the court held that a stipulation in a bill of lading that the railroad company shall be liable only as a warehouseman, after the arrival of the freight at the point of destination, and that the consignee shall receipt and take it away as soon as it is ready for delivery, without providing for a notice to the consignee when it is ready, is unjust and unreasonable. That decision, however, was reviewed by the Supreme Court of Alabama, in the case of Western Railway of Ala. v. Little, 86 Ala. 159, 161 (5 So. 563), from which we quote: “In L. & N. R. R. Co. v. Oden, 80 Ala. 38, we ruled that’ a special contract, by which the company’s liability as a common carrier was terminated on the arrival of the freight at the depot, and the failure of the consignee to receive and remove it as soon as ready for delivery, without notice, was unjust and unreasonable; but pretermitted an expression of opinion (a decision of the question not being required by the case) whether a railroad company may by special contract terminate its liability as carrier at a time earlier than that fixed by law for its continuance. The question is now directly presented, both by demurrer to pleas and instructions to the jury. Appellee contends that the provisions in the bill of lading comes within the rule which forbids a common carrier to contract for exemption from liability for damages caused by his own negligence. We do not so interpret the stipulation. It does not purport to release the company from any risk whatever, ordinary or extraordinary, attached by law to the employment of a common carrier while the goods are in transitu. The intention and effect are to fix a period, after the transportation is complete, when the goods pass from the custody of the company as a carrier to their keeping as warehouseman.” Thus, it will be seen from the decisions just quoted from, all of which pertain to deliveries from railway depots or warehouses, that while the general rule of liability may be to some extent modified by express contract, the courts of that State seem disposed to .limit within reasonable bounds the right of contract in contravention of the general rule; and did the contract relied upon in the present case pertain to such a delivery, we would be strongly disinclined to uphold its validity. Where, however, it is intended that the delivery shall be made at a private siding, the rule is altogether different, and the courts are much more liberal in their grant of authority relating to private contracts, exempting railroads from liability. Indeed, the general rule seems to be that where, by custom or contract, the duty of the-carrier is performed when it places on a side-track the car containing the goods, ready for unloading, by the consignee, then from that time the liability of the carrier as carrier ceases. The Supreme Court of Alabama holds that in the absence of any specific provision on the subject in the contract of shipment, the shipper’s assent to such delivery is implied from the mere fact that he knew the carrier had no agent at the particular place to which the consignment was made. In South & North Ala. R. Co. v. Wood, supra, it was said: “We can see no reason why a railway company, acting as a common carrier, can not stipulate, by a contract express or implied, that their liability as a common carrier shall terminate with a delivery at a particular point, and that they will assume no liability at all, in such case, as warehousemen. If the consignee is fully advised, at the time of shipment, that the company has no agent at the particular station or place to which the consignment is made, and the failure to employ such agent is not shown to be unreasonable in view of the condition of the company’s business, there is, in the absence of rebutting circumstances, an implied consent that the carrier’s responsibility shall be dissolved, when he has done all that the nature of the ease permits him to do, according to the reasonable and proper usages of his business. The delivery of the carload of corn on the side-track at ‘ Smith’s Mills’ terminated the liability of appellant. It would be unreasonable to require the railroad company to employ a special agent to keep the corn in further custody, unless there was an agreement, express or implied, to do so. When the consignee was informed that there was no agent of the company there, he was virtually told that there would be no custody of the goods by the carrier after arrival. The shipment, after such knowledge, was an assent on the part of the shipper, to the implied conditions.” When the same case was again before the court (71 Ala. 215) it was again recognized that so far as any question of liability on the part of the carrier to the shipper was concerned, the carrier’s control over the car and its contents was to be regarded as having ended when the car was placed on the side-track at the point of destination, and' that there was no liability on its part for any loss of the contents of the car thereafter occurring.

In the case of Stone v. Rice, 58 Ala. 95, 98, the court says: “Doubtless a deposit, sanctioned by usage, of the goods in question on the river bank, at Gore’s Landing, within view of, and where they could be protected by the warehouseman, whether so protected in fact or not, would have been good.” This court held, in Bainbridge G. Co. v. A. C. L. R. Co., 8 Ga. App. 677 (70 S. E. 154), that “There is nothing in the public policy of this State or of the State of Alabama, to prevent a shipper and carrier from contracting as to when cars loaded upon a side-track shall be considered as delivered to the carrier; and in such case delivery under the agreement may not actually take place, although the car is loaded and sealed and a bill of lading issued by the carrier.” The converse of the proposition must be equally true, namely, that a consignee and a carrier may, without contravening any rule of law or public policy, contract as to when cars of freight placed upon -a side-track shall be considered as delivered, so as to absolve the carrier from any further duty or liability in regard thereto.

It is contended, however, by counsel for the cotton company that the agreement referred to as entered into by the agent of the railway company and the agent of the compress company, whereby the parties undertook to prescribe the method of receiving cotton on behalf of the cotton company when delivered after business hours, is not binding upon the compress company, because it had no knowledge of and did not enter into the agreement as to what should constitute such a delivery. But inasmuch as the statutory law can not have application, we see no reason why the compress company, as the duly authorized general agent of the cotton company to receive for it all cotton consigned to it at Troy over the lines of the defendant, could not arrange, by such an agreement, for the manner and method by which it desired that such deliveries should be made. Under the evidence in this case the railway depot was three hundred yards distant from the compress company’s buildings and track, and it would seem unreasonable, therefore, to require the railway company to place the cotton upon the sidetrack of the compress company where it would be out of the railway company’s supervision and under the care and custody of the watchman or other employees of the compress company, without relieving the railway company of further responsibility as to the delivery, especially where, as in this case, the duty of breaking the seals and unloading, the cars was always performed by the compress company as agent of the cotton company.

3. In addition to the defense of delivery, set up by the defendant, in accordance with the authority granted to the compress company as its agent, and the contract made in pursuance thereto, the defendant contended that section 5 of the bills of lading, already quoted, under which this cotton was shipped, clearly exonerated it from liability under the facts of the case. It will be needless, in this connection, to again cite or quote from the decisions governing the delivery of freight on private "or other sidings. The statement of the evidence in this case makes plain the essential facts that the cotton was intended for delivery to' the. agent of the plaintiff on the tracks of the compress company, that-this track was a private or other siding, within the meanings of the bills of lading, and that the cars, containing the cotton, were placed at the compress platform on this track, and detached from the railway company’s train, some hours before it was destroyed in the compress fire.

So far as the bills of lading are concerned, though not signed by the shipper, they are valid and binding under the laws of Alabama, which differ in this respect from the Georgia rule. In Alabama a bill of'lading is regarded as a special contract, if accepted by the shipper with knowledge or opportunity of knowledge of its contents. Steele v. Townsend, supra; Western Ry. of Ala. v. Little, supra; Jones v. Cincinnati &c. Ry. Co., 89 Ala. 376 (8 So. 61). Moreover, in the case at bar the cotton company sued upon the bills of lading and attached them as exhibits to its petition.

It is contended, however, by the plaintiff in error, that the clause in the bills of lading referred to, and the decisions of the Alabama court, relating to deliveries at side-tracks, have reference only to such deliveries made on sidings in the country, and do not pertain to deliveries made within the limits of a corporate city having a daily mail. We do not think it true, however, that any reason is apparent in law or in logic why a like valid delivery may not be made by agreement between the parties, even where the side-track or special point for delivery happens to be within the corporate limits of such a city or town. Nothing in Alabama code-section 6137 inhibits such delivery. It is frequently the only method of delivery which can be made. If it is not competent for the carrier and the owner to agree that such a delivery shall be valid, the result would be to paralyze many great industries whose factories or plants are situate within the corporate limits of large cities, and who depend entirely upon this method of delivery. Many large manufactories and warehouses in such cities are miles distant from the railway company’s depot or regular place of delivery, and they receive freights only in cars on side-tracks, at their factories. A common carrier could not be expected, or legally required, to surrender its custody and control over freight by placing the cars on such a side-track, if it is still to be held responsible for the property.

Judgment affirmed.

Broyles, P. Jand Bloodworth, Jconcur.


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
    7726.
    UNITY COTTON MILLS v. HASTY & STRICKLAND.
    While this court will not disturb the verdict of a jury where there is evidence to support its finding, the record in this ease fails to disclose any testimony on which the verdict can be based.
    Decided March 20, 1917.
    Levy and claim; from city court of LaGrange—Judge Harwell. June 15, 1916.

      Hatton Lovejoy, Meadors & Wyatt, for plaintiff in error.

      M. U. Mooty, A. J. Andrews, contra.
   Jenkins, J.

A mortgage fi. fa. in favor of Hasty & Strickland against J. W. Pruett was levied on two bales of cotton, and Unity Cotton Mills interposed a claim. The verdict found the property subject, and a motion for a new trial was overruled. The issue of fact was whether the cotton belonged to the defendant and was grown on the “Floyd place,” described in the mortgage, or had belonged to his father, J. E. Pruett, from whom claimant had purchased. It was agreed that the claimant bought the cotton in good faith on October 23, 1914. The levy on the two bales was made on November 5, 1914. J. W. Pruett, the defendant in fi. fa., and his father, J. E. Pruett, testified positively and unequivocally that the cotton was raised by and belonged to the latter; that J. W. Pruett did not raise the cotton; that he had no title or interest in it, and that his sole connection with it was to bring the cotton to town for the purpose of sale, at the request of his father; that some of the proceeds therefrom were paid on two accounts owing by his father, and the balance was turned over to him by the son. Eeceipts of the parties to whom these two amounts were paid, of the same date as the date of the sale, were in evidence. The only evidence for the plaintiffs in fi. fa. was that of G. L. Thompson and of Maynard Strickland, one of the plaintiffs. The testimony of G. L. Thompson in full is as follows: “I know J. W. Pruett. I know the Floyd farm which he worked during the year 1914. His land adjoins mine. I know J. E.- Pruett, father of J. W. Pruett. He runs a mill and cotton gin and owns land adjoining J. W. Pruett. The lands of J. W. Pruett and J. E. Pruett are separated by the public road. I remember seeing two of J. E. Pruett’s boys together with J. W. Pruett on a wagon loaded with cotton, carrying it to the gin. They were on the wagon together. I saw this cotton gathered in the field on the Floyd place and loaded on the wagon. Later I was. at the gin owned by J. E. Pruett and saw the two bales of cotton. This occasion when I saw the cotton I testified about as loaded on the wagon was not more than ten days before the levy which I heard about, and my best judgment is that it was six or eight days before. On the former trial of this case I did not testify as is set forth in the brief of evidence as follows: ‘I do not know whose cotton it was. I never saw that particular.cotton before that I know of. I did not see it gathered. I do not know that the cotton on the wagon was J. W. Pruett’s cotton. I never saw the wagon loaded. I do not know on whose land the cotton was raised which I saw on the wagon. I do not know where that two bales of cotton at the gin was raised. It might have been belonged to J. E. Pruett. I do not know tha/t the cotton levied on was the same cotton which I saw on the wagon at the gin owned by J. E. Pruett. I do not know where the cotton was raised which I saw at the gin house.’”

The testimony of Maynard Strickland in full is as follows: “I went to the Pruett home a few days before the levy and talked with J. W. Pruett. He told me that he had about two bales of cotton. I saw the pile of cotton he was talking about on the porch of his house. It looked to he nearly two bales of cotton. Mr. J. W. Pruett said that he would bring me the two bales within a few days. Just as soon as he finished out the two bales. There was about 1,500 pounds of seed cotton on the porch at the time we foreclosed our mortgage. It was levied on. I pointed out the two bales levied on in the Security Warehouse. (It was admitted by attorneys for claimant that the cotton was placed in the warehouse in the name of J. W. Pruett.) I do not know that these two bales of cotton were raised on the J. W. Pruett’s lands. I do not know that' it was raised on the lands covered in our crop mortgage. The seed cotton levied on was not the same cotton I saw at the house on the porch. J. W. Pruett farmed on lands known as the Thompson land and also known as the Floyd land. I do not know whether anyone else worked a part of the.Floyd place. The cotton levied on was ginned at J. E. Pruett’s gin, because his gin makes a peculiar shaped bale.”

1. We think the description given by the recorded crop mortgage, though meager, was sufficient to put a purchaser on notice (Thomas Furniture Co. v. T. & C. Furniture Co., 120 Ga. 879, 48 S. E. 333); and therefore our decision in this case is based entirely upon the testimony as shown by the record.

2. No principle of law is founded upon better reason or has been more strictly adhered to by this court than that the jury are the proper judges of the weight and sufficiency of testimony and of the credibility of witnesses, .and this court will not disturb .the verdict of a jury where there is evidence to support its findings. Davis v. Kirkland, 1 Ga. App. 5 (58 S. E. 209); Strickland v. Crawley, 1 Ga. App. 139 (58 S. E. 215); Charles v. Brooker, 1 Ga. App. 219 (58 S. E. 218); Daughtry v. S. & S. Ry. Co., 1 Ga. App. 393 (58 S. E. 230). We agree with the following language in the case of Western & Atlantic R. Co. v. Hunt, 116 Ga. 448 (42 S. E. 785), in which our Supreme Court says: “We fully recognize that questions of fact are for the jury, and that their discretion as to the facts is a wide one. We believe, also, that they are better judges of the facts than áre courts, and we have great respect for their verdicts. They are often affirmed in eases where it seems clear to the members of the appellate court that if they had been in the jury-box they would have rendered a different verdict. We recognize, also, that the discretion to set aside a verdict on the ground that it is strongly and decidedly against the weight of the evidence is reposed by law in the presiding judge, whose opportunities for determining this question are necessarily very much better than those of this court.”' In the instant case, however, we have been unable to find in the record any evidence which we deem could be properly held to'support the finding of the jury. It will be observed that the witness Thompson does not state that the cotton levied on was the cotton which he saw gathered on the Eloyd place and which he saw carried from there to the gin. On the contrary, he says that the occasion on which he saw this cotton was not more than ten days before the levy, and that in his best ■ judgment it was six or eight days prior thereto, whereas the evidence shows that the levy was made on November 5, and the mill had actually bought the cotton on October 23, a period of thirteen days prior thereto. Therefore, according to Thompson’s evidence, the cotton levied on could not possibly have been the cotton testified to by him, which he had seen gathered' on the Eloyd place. The only other witness for the plaintiff in fi. fa. was Maynard Strickland, who stated that a few days before the levy he had gone to the house of- the defendant in fi. fa., J. W. Pruett, and, in a conversation with him, was told that he then had about two bales of cotton, and that he saw a pile of cotton in the seed, containing about 1,500 pounds, on the porch of his house. He testified that he did not know that the two bales levied on were raised on the land known as the Floyd place, covered by the crop mortgage, and that he did not know where it was raised. Even if it can be held that the evidence in the record inferentially indicates that the cotton levied upon was the seed-cotton seen by this witness on the porch of the defendant in fi. fa., still this witness testified that the defendant in fi. fa. farmed on lands not covered by the crop mortgage, known as the Thompson place, and his evidence was entirely silent as to which place the seed cotton he saw had been gathered from. . As the evidence of these two witnesses constitutes all of the testimony on behalf of the plaintiff in fi. fa., we feel necessarily constrained to hold that the verdict is without evidence to support it; and that the judgment of the court below, refusing to grant a new trial, was error.

Judgment reversed.

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


author: Bloodworth, J.

text:
    7801.
    Farmers & Merchants Bank of Warthen v. Amerson.
    Decided March 20, 1917.
    Complaint; from city court of Sandersville—Judge Eawlings. August 18, 1916.

      Evans & Evans, for plaintiff in error. J. J. Harris, contra.
   Bloodworth, J.

1. Grounds of a motion for new trial not referred to in the brief of counsel for the plaintiff in error will be treated as abandoned.

2. The evidence of the witness Wells was not inadmissible for the reason stated in the motion for a new trial. Where a lengthy extract from the evidence was objected to as a whole and on several grounds, and some of it was admissible, the objection to the whole was properly overruled. Great Southern &c. Co. v. Guthrie, 13 Ga. App. 288, 292 (79 S. E. 162).

3. There was evidence sufficient to support the verdict.

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.


text:
    7833.
    Victor v. Broad Street Hotel Company.
    Decided March 20, 1917.
    Action 'on contract; from city court of Floyd county—Judge John K. Davis presiding. June 21, 1916.

      Eubanks & Mebane, for plaintiff in error.

      Barry Wright, Denny & Wright, contra.
   Bloodworth, J.

A judgment on issues of fact, rendered by a judge who by consent tried the case without a jury, will not be set aside by this court when it appears that the evidence, though conflicting, was sufficient to support his finding. Small v. Charleston Bagging Mfg. Co., 102 Ga. 585 (27 S. E. 763).

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.


author: Broyles, P. J.

text:
    7842.
    Hind v. Central Trust Company of Macon, Georgia.
    Decided March 20, 1917.
    Rehearing denied March 30, 1917.
    Complaint; from city court of Albany—Judge Jones. August Í1, 1916.

      Yeomans & Wilkinson, for plaintiff in error.

      Pope & Bennet, contra.
   Broyles, P. J.

Under section 6204 of the Civil Code of 1910, and repeated rulings of the Supreme Court and of this court, the first grant of a new trial will not be disturbed by the reviewing court, unless the plaintiff in' error shows that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the trial judge.. The law and the facts in this case do not require the verdict rendered, and the judge did not abuse his discretion in the first grant of a new trial.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


text:
    7860.
    Southern Fertilizer & Chemical Company v. Peacock.
   Bloodworth, J.

“It may be now considered as settled that this court will .not, under any circumstances, reverse a judgment granting a first new trial, whether the grant be general upon all the grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involves questions of evidence or upon a ground which involves purely questions of law; unless it is made to appear that no other verdict than ’the one rendered could possibly have been returned under the law and facts of the case. Unless the case can be brought within the exception just stated, it is useless for parties to bring before this court the judgment of a trial judge granting a first new trial.” Weinkle v. Brunswick & Western R. Co., 107 Ga. 367 (33 S. E. 471) ; Macon Consolidated Street R. Co. v. Jones, 116 Ga. 351 (42 S. E. 468); Mock v. Savannah & Statesboro Ry. Co., 122 Ga. 385 (50 S. E. 121) ; Cox v. Grady, 132 Ga. 368 (64 S. E. 262); Smith v. Maddox-Rucker Banking Co., 135 Ga. 151 (68 S. E. 1031) ; New v. Southern Ry. Co., 136 Ga. 778 (71 S. E. 1104) ; Wilkins v. Barnes, 10 Ga. App. 316 (73 S. E. 349). Civil Code (1910), § 6204.

Decided March 20, 1917.

Complaint; from city court of Eastman—Judge Neese. August 23, 1916.

Roberts & Smith, for plaintiff in error. G. W. Griffin, contra.

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.


text:
    7868.
    MOORE v. CITIZENS BANK OF ASHBURN.
    Where a suit was filed, returnable to the quarterly term of a city court, and during the term at which a verdict thereon was rendered a motion for a new trial was made, and the order of the judge set a day for its hearing in vacation, and provided that if the motion should not then be heard, it should be heard at such time in vacation as counsel might agree upon, and, upon failure to agree, then at such time and place as the presiding judge might fix on the application of either party, of which time and place the opposite party should have at least five days’ notice; and that if, for any reason, the motion should not be heard and determined before the beginning of the next term of the court, then it should stand on the docket until heard and' determined at that term or thereafter; and where, without fault of the movant, it was not heard at the date "fixed in vacation, nor at the next succeeding quarterly term of the court, the motion thereupon went over, by-operation of law, to the following quarterly term, and was not subject to be called up without notice at an intervening monthly term, and then dismissed on the -grounds that no brief of evidence had been filed and there was no appearance for the movant.
    Decided March 20, 1917.
    Motion, for a new trial; from city court of Ashburn—Judge Tip-ton. August 21, 1916.
    Mrs! A. M. Moore filed, in the city court of Ashburn, a suit against the Citizens Bank of Ashburn, returnable to the April quarterly term, 1914, of the court, in which she sought to recover on an account the sum of $1,275, besides interests and costs. At the appearance term the defendant filed an answer, arid at the April quarterly term, 1916, on April 17, the case was tried and a verdict was returned in favor of the defendant, upon which judgment was duly entered. The plaintiff, before the adjournment of the court, filed a motion for a new trial on the general grounds; and on the presentation of the motion the trial judge passed the usual orders, directing that the defendant show cause before him in vacation at Ashburn, Georgia, at ten o’clock a. m., on the third Monday in June, 1916, why the motion should not be granted, and that the motion be heard and determined at that time and place. One of the orders then granted provided, among other things, as follows: “If, for any reason, said motion is not heard and determined at the time and place above fixed, it is ordered that the same shall be heard and determined at such time and place in vacation as counsel may agree upon, and, ujion failure to agree, then at such time and place as the presiding judge may fix, on the application of either party, of which time and place the opposite party shall have at least five days’ notice. If, for any reason, this motion is not heard and determined before the beginning of the next term of this court, then the same shall stand on the docket until heard and determined at said term, or thereafter.” It appears that prior to the date set for the hearing of the motion, the movant’s counsel, having been unable to secure a transcript of the evidence and charge of the court in time to prepare and present for ap2Droval a brief of the evidence by the third Monday in June, 1916, wrote to the judge a letter, requesting a postponement of the hearing. On June .19, 1916, the judge, in response to the letter, wired counsel for the plaintiff that the motion would be continued until “the next term,” unless an earlier date should be agreed upon. However, there was no formal order continuing the hearing. The next quarterly term of the court convened on the third Monday in July, 1916, but no action in reference to the motion was taken at-that time. On August 21, 1916, during the regular monthly term of the court, counsel for the defendant moved to dismiss the motion for a new trial, because no brief of evidence had been filed and there was no appearance for the movant. It does not appear that counsel had made any agreement that the motion for a new trial should be heard and determined on that date, or that there had been any previous order fixing August 21, 1916, as the date for the hearing, and no notice had been given counsel for the movant that the motion would be called up at that time. The motion to dismiss was sustained, and an order was granted accordingly.
    * The act approved August 21, 1906, creating the city court of Ashburn, provided as follows: “The regular terms of said city court of Ashburn shall be held monthly and quarterly at such time as the judge of said court may designate by publication of an order 'fixing the date for said terms, and at the monthly terms of said city court such matters may be disposed of as do not require a jury and the amount does not exceed five hundred dollars.” Georgia Laws, 1906, p. 152. By an amendment to this act, approved August 3, 1916, although the distinction between the monthly and the quarterly terms was preserved, the provision limiting the jurisdiction of monthly terms to amounts of $500 was stricken, so that the act as amended provides that “the regular terms of said city court of Ashburn shall be held monthly and quarterly at such times as the judge of said court may designate by publication of an order fixing the date for said terms, and at the monthly terms of said city court such matters may be disposed of as do not require a jury.” Appended to the certificate of the trial judge appears the following note by him: “Aug. 21, 1916, was a regular term of court. During my tenure, motions for new trial, without regard to' amount, have always stood for hearing at ‘the next term’ after the date first fixed, without regard to whether it was quarterly or monthly.”

      E. K. Wilcox, A. 8. Bussey, for plaintiff.

      J. H. Pate, J. A. Comer, for defendant.
   Jenkins, J.

(After stating the foregoing facts.) Under the terms of the trial judge’s order, the motion for a new trial not having been heard on the date set therefor in vacation, and no further order thereon being taken, it stood for hearing in term time; and, not being heard at the succeeding July quarterly term of the court, it thereupon went over to the next term. Civil Code of 1910, § 6090; Atlanta, Knoxville & Northern Ry. Co. v. Strickland, 114 Ga. 998 (41 S. E. 501); Holtzendorff v. Dillard, 136 Ga. 241 (71 S. E. 133); Phœnix Bank v. Shirling, 146 Ga. 163 (91 S. E. 23). Whether the “next term” must be taken to mean the next succeeding monthly term, or the following qiiarterly term, is the only question which the record presents for determination. If the former construction be correct, then the action taken in calling up' and dismissing the motion was legal and proper; but if, when the motion was mot heard at the July quarterly term, it went over by operation of law to the next succeeding quarterly term of said court,' the judge would not have authority at an intervening monthly term to call up the motion without notice and dismiss it. The petition was filed to the quarterly term of the city court of Ashburn and was tried before a jury therein. The amendatory act, approved August 3, 1916, does not abolish the distinction between the quarterly and the monthly terms, but only gives the same jurisdiction as to amount at each, and provides that the quarterly terms shall have exclusive jurisdiction in jury cases. The case with which we are dealing must have been properly entered upon the trial docket of the quarterly term, and the motion so entered upon its motion docket. The legal effect of the order originally setting the motion down for hearing at a date fixed in vacation was, relatively to this case, a continuation of the quarterly term until that time. Herz v. Frank, 104 Ga. 638 (30 S. E. 797); Atlanta, Knoxville & Northern Ry. Co. v. Strickland, supra; Cole v. Illinois Sewing Machine Co., 7 Ga. App. 338 (2) (66 S. E. 979). The motion not being then heard, and no additional order being taken, jurisdiction was not lost, but was postponed to term time. Helmly v. Davis, 111 Ga. 860 (36 S. E. 927). This term time would seem to be such term as has jurisdiction of the case. Warren v. Slaton, 14 Ga. App. 734 (2) (82 S. E. 307). The case having been filed, docketed, and tried before a jury at the quarterly term, its status as a quarterly-term case thus became fixed, and the fact that the motion in said case was a matter for the judge to hear could not give jurisdiction to the monthly term. While, under the proper order, it might have -been heard in vacation, yet if term time be relied upon for jurisdiction, then only term time during which jurisdiction to try the case would. be had would suffice. Nor do we think that the custom theretofore followed by the trial judge, as evidenced by the note to his certificate, would alter the rule. ' Of his purpose to act with perfect fairness it’ is indisputable proof; but if we be correct in our interpretation of the law, and the movant was injured by failing to receive the benefit of a substantial right which by law was allowed her, then custom must, give way thereto. Walton v. William Hester Marble Co., 17 Ga. App. 75 (86 S. E. 279).

Judgment reversed,.

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


text:
    7871.
    PATE v. INSURANCE COMPANY OF VIRGINIA.
    1. Ordinarily a policy of insurance upon the life of a married man, where no person is named therein as the beneficiary, is not payable to his wife, but is payable to the executor or administrator of his estate. Where, however, the provisions of the policy can be so construed as to raise a fair inference that it was the intention of the parties to the contract that the amount due under the policy upon the death of the insured should be paid to the wife, she has a right of action against the company, upon its refusal to pay her the amount due at his death.
    2. The court erred in dismissing the action, on general demurrer.
    Decided March 20, 1917.
    Action on insurance policy; from city court of Columbus—Judge Tigner. September 1, 1916.

      Ed Wohlwender, Hatcher & Hatcher, for plaintiff.

      J. L. Willis, for defendant.
   Broyles, P. J.

Mrs. Ruth Pate brought an action upon two insurance policies issued by the Life Insurance Company of Virginia to Carl L. Pate, her husband. The defendant filed demurrers, both general and special,^ to the petition as amended. The court sustained the demurrers and dismissed the petition, and the plaintiff excepted. No beneficiary was named in the policies declared upon, but Mrs. Pate alleged that under the terms of the policies she, as the wife of the insured, was virtually made the beneficiary. • Her petition as amended showed that no administrator had been appointed for the estate of her husband, that no administration upon his estate was necessary, and that no other person beside herself was claiming to be the beneficiary under the policies. The general demurrer interposed was in substance that no cause of action was in the wife, and that, as no beneficiary had been named in the policies, the personal representative of the insured was the only person who could bring suit upon the policies.

Ordinarily, where no person is named as the beneficiary -in a policy of life insurance, upon the death of the insured the amount of the policy is payable to his estate. Boyden v. Massachusetts Masonic Life Association, 167 Mass. 242 (45 N. E. 735). It ,has been held by the Supreme Court of this State that " A stipulation in a policy of life insurance that payment of the amount of the policy to any relative of the insured belonging to a designated class will discharge the company from liability is valid, but such a stipulation does not have the effect to make the person actually receiving the money the beneficiary of the policy. It is merely an appointment, by the parties to the contract, of a person who may collect the amount due under the policy for the benefit of the person ultimately entitled thereto.” Ogletree v. Hutchinson, 126 Ga. 454 (55 S. E. 179). In-Providence County Savings Bank v. Vadnais, 36 R. I. 122 (58 Atl. 454), the Supreme Court of Rhode Island ruled that no one person of a designated class has an exclusive right to recover the amount of the policy, and consequently no one of them has an attachable interest in the insurance funds. A similar ruling was made in Lewis v. Metropolitan Life Insurance Co., 178 Mass. 52 (59 N. E. 439, 86 Am. St. R. 463), where it was held that a son could not recover the amount due under such a policy, and that' a suit could be maintained only by the .personal representative of the insured. It does not appear, however, that in any of these cases there was a provision in the policy itself that the insurance company agreed to pay the amount due under the policy to any one person of a designated class. In the policies in the case at bar such an agreement to pay by the company can be clearly arrived at by construing the provisions of the policies most strongly (as they must be construed) against the companjr. The policies provide that “ The Life Insurance Company of Virginia, in consideration of the weekly premium stated in the schedule below, which it is agreed shall be paid in advance to the company, or to its authorized representative, on or before every Monday during the continuance of this contract, agrees to pay at its home office in the city of Richmond, Virginia, in accordance with the provisions of Article Third on the second page hereof, two hundred and fifty dollars within twenty-four hours after aecéptance at its home office of satisfactory proofs of the death of the insured, named below, during the continuance of this-policy.” “Article Third” of the policy, referred to, is as follows: “Facility of Payment.-—The company may make any payment provided for in this policy, to husband or wife, or any relative by blood, or lawful beneficiary or connection by marriage of the insured, or to any other person who may appear to be equitably entitled to the same, by reason of having incurred expense, on behalf of the insured for his or her burial, or for any other purpose; and the production by the company of a receipt signed by any or either of said persons, or of other sufficient proof of such payment to any or either of them, shall be conclusive evidence that such benefits have been paid to the persons entitled thereto, and that all claims under this policy have been fully satisfied.”

Construing these two provisions of the policies together, and most strongly in favor of the insured, it would seem-that the company had agreed to pay the amount due under the policies to any one person of the various classes designated in Article Third of the policies. As was held in the Ogletree case, supra, the payment of the amounts due under the policies to the widow of the insured would be conclusive proof that they were paid to the person entitled to receive them and that all claims under the policies had been fully satisfied; and consequently we see no necessity in forcing the widow to go to the trouble and expense of having the estate of her deceased husband administered upon solely for the purpose of protecting the company from any other possible claimants of the fund, when it will be absolutely protected by its payment to her as the wife of the insured, especially when she alleges in her petition that there was no administration upon her husband's estate and that none was necessary, and that no other person was claiming to be the beneficiary under the policies sued upon, and all of these allegations were in effect admitted as being true by the demurrer. It will be noted that Article Third of the policies, quoted above, in specifying the various classes to whom the company may make payment, does not mention either the executor or the administrator of the estate of the insured. Nowhere in the policies does it appear that it was the intention of the parties that the amount of the policies should be paid only to the estate of the insured. In our judgment the plaintiff has a right of action against the insurance company, and the court erred in dismissing her petition, on general demurrer. The ease of Brown v. Mutual Life Insurance Co., 146 Ga. 123 (90 S. E. 856), is olearly distinguished by its facts from this case.

Judgment reversed.

Jenlcins and Bloodworth, JJ., concur.


text:
    7887.
    WILLIAMS WAGON WORKS v. SMALL & SONS.
    1. The description, “an iron gray mare seven years old,” was legally sufficient, in the contract of conditional sale; and there was sufficient evidence to authorize the finding that the mare in question in the trover suit was “iron gray.”
    2. No estoppel on the part of the plaintiffs to claim title to the mare in question resulted from the conduct or statement of their employee who, when the person in possession of the mare under the plaintiffs’ contract of conditional sale was offering to sell it to a subsequent purchaser, answered an inquiry of the latter as to whether it was “any good” by saying it was a good horse and advising him to buy it.
    3. Under the facts in this case there is no merit in the contention that the finding in favor of the plaintiffs' should be set aside on the ground that the evidence does not show that the county in which the conditional sale contract was recorded was the county in which the vendees in the contract resided.
    Decided March 20, 1917.
    Trover; from city court of Macon—Judge Guerry. October 3, 1916.
    A. T. Small & Sons brought trover against the Williams Wagon Works, a corporation, for “one iron gray mare about seven years old.” The defendant in its answer denied the material allegations of the petition, and further pleaded as follows: The mare which plaintiffs seek to gain possession of by this suit is a white mare, and does not fit the description in the retainer-of-title note under which plaintiffs are claiming title and right of possession. At the time defendant purchased the white mare which plaintiffs seek to recover, one of the plaintiffs, or their agent, to wit, A. T. Small or G. S. Riley Jr., was present at the sale, or knew of the sale when it was contemplated, and by his encouragement, presence, and manner induced defendant to purchase the mare, realizing that defendant was under the impression that it was free from lien; and the plaintiffs are therefore estopped from asserting title to the mare. The case was tried by the court without a jury, and judgment was rendered in favor of the plaintiffs for $100, the plaintiffs having elected to recover the value of the property in question. The case came.to the Court of Appeals on exceptions to the overruling of the defendant’s motion for a new trial. The only ground of the motion relied on in the brief of counsel for the plaintiff in error, besides the general ground that the finding of the trial judge was unsupported by evidence, was as follows: “Movant contends that the following material evidence was illegally admitted by the court, over the objections of movant, to wit: a retainer-title note, dated January 7, 1914, signed by J. W. Eountree & Sons, payable to A. T. Small & Sons at the Fourth National Bank, Macon, Ga., reserving title in an iron gray mare, seven years old, and in an iron gray horse, about eight years old, for $-. Movant objected to the admission of said note in evidence, upon the ground that plaintiffs had not laid the proper foundation for the admission of said note in evidence, and upon the further ground that said note did not describe the property in the possession of the defendant, which the suit was brought to recover. The [objection] was overruled by the court. Movant now contends that the admission of said note in evidence was error, because the burden was on the plaintiffs to show that the note was recorded in the county in which the maker resided, and in the event the property described in the note was located in a county other than the maker’s residence, then in such other county in which the property was located. The evidence in the case does not show that Eountree & Sons, the makers of said note, resided in Bibb county, or that the property described in said note was located in Bibb county.” In the brief of evidence the note is described as above, with the addition that it was “dated Macon, Ga.,” and was duly recorded in the office of the clerk of Bibb superior court. It does not appear that the objection as to the omission to show the place of residence of the makers of the note was specifically raised at the trial.

      Walter Before, James C. Estes, for plaintiff in error,
    cited.: (1) As to description of property: Farkas v. Duncan, 94 Ga. 27, 29; Stewart v. Jaques, 77 Ga. 365; Nussbaum v. Waterman, 9 Ga. App. 56. (2) Estoppel: Ezzard v. Frick, 76 Ga. 512, 516. (3) Eecord of conditional-sale note: Civil Code (1910), §§ 3259, 3319; Bond v. Brewer, 96 Ga. 443, 445; Pickard v. Garrett, 141 Ga. 831; Carter v. State, 48 Ga. 43.

      Hardeman, Jones, Park & Johnston, contra,
    cited: (1) As to description: First Nat. Bank v. Spicer, 10 Ga. App. 503 (1a); Beaty v. Sears, 132 Ga. 516 (1); Nichols v. Hampton, 46 Ga. 253 (3); Farkas v. Duncan, 94 Ga. 27. (2) Estoppel by agent’s conduct: Walton Guano Co. v. McCall, 111 Ga. 114; Keystone &c. Co. v. Farmers &c. Co., 15 Ga. App. 107; Collins v. Crews, 3
      Ga. App. 238 (4); Hamilton v. Ga. Railroad, 78 Ga. 328; Camp v. Sou. Bkg. Co., 97 Ga. 582.
   Broyles, P. J.

1. The main issue on the trial of this case seemed to be whether the mare in question was “white” or “iron gray” when she was sold under the conditional bill of sale, and the determination by the learned trial judge that she was iron gray will not be disturbed, there being ample evidence to support his finding. It seems, from the evidence in the record, that the same horse may be “iron gray” in winter and “flea bitten” or “white” by the following spring. One witness testified: “I would call an iron-gray horse a horse that had already started to turn white.” In our opinion, the description of the mare in the bill of sale, to wit, “an iron gray mare seven years old,” was legally sufficient. First National Bank v. Spicer, 10 Ga. App. 503 (73 S. E. 753); Beaty v. Sears, 132 Ga. 516 (64 S. E. 321); Nichols v. Hampton, 46 Ga. 253; Farkas v. Duncan, 94 Ga. 27 (20 S. E. 267).

2. Estoppels are not favored by the law, and they must be clearly established. When it is sought to estop the principal by the conduct of an agent it must be affirmatively shown that the agent was acting within the scope of his authority. Keystone Lubricating Co. v. Farmers Oil & Fertilizer. Co., 15 Ga. App. 107 (82 S. E. 665); Collins v. Crews, 3 Ga. App. 238 (4) (59 S. E. 727); Hamilton v. Georgia Railroad, 78 Ga. 328; Camp v. Southern Banking & Trust Co., 97 Ga. 582 (25 S. E. 362); Walton Guano Co. v. McCall, 111 Ga. 114 (36 S. E. 469). It is contended that the plaintiffs were estopped from bringing suit to recover the mare, because of the conduct of one Riley, a salesman of the plaintiffs. After the conditional sale by the plaintiffs to Rountree & Sons (which was never completed), and while Rountree had possession of the mare, R. A. Williams, who afterwards bought the animal from Rountree, asked Riley “if she was any good.” Williams testified: “He told me tó buy her, she was a good horse, and to buy her. He did not say a word about A. T. Small & Sons having a claim on it. . . I did not make an examination of the records.” Riley’s testimony shows that he was employed by the plaintiffs and that he had sold, the mare in question to Rountree. There was no evidence to show the scope of Riley’s duties or authority. He did not sell the animal to Williams for Rountree, but Williams bought directly from Bountree. The conversation between Biley and Williams appears to have been solely upon the question of the worth or value of the property. Biley made no representations whatever to Williams as to the plaintiffs’ claim on it, did not purport to be acting for the plaintiffs when he advised Williams to buy it, and no authority for him to act for the plaintiffs was shown. Furthermore, the evidence fails to show that Biley knew that the original purchase-money note of Bountree & Co. had not been paid, or that he • was aware that Williams did not know of the conditional sale to Bountree & Co., the bill of sale having been duly recorded in the office of the clerk of the superior court of Bibb county. Nor is there any evidence to negative the idea that Biley, even if he knew that the purchase-money note of Bountree & Co. had not been paid, supposed that Williams would take up the note when, he purchased the property. Under such circumstances we do not think that the plaintiffs are estopped by Biley’s conversation with Williams.

3. It is contended by the plaintiff in error that the judgment should be reversed upon the purely technical point that the evidence did not affirmatively show that the makers of the title-reservation note resided in Bibb county, where the note was duly recorded in the office of the clerk of the superior court. In order for the reservation of title to be good as against third persons, the vendee being a resident of this State, it is essential that the contract be recorded in the county in which the vendee resides at the time of the execution of the contract. Civil Code of 1910, §§ 3318, 3319, 3259; Pickard v. Garrett, 141 Ga. 831 (82 S. E. 251). There is no contention, nor even the slightest intimation, that as a matter of fact Bountree & Sons, the vendees, did not reside in Bibb county, or that the animal in question was at any time after its purchase in Bibb county carried out of that county. The contract on its face showed that it was executed in Bibb county; the note was payable at a bank in Macon, and the contract was recorded in Bibb county; the record shows that the witnesses (upon the trial in the city court of Macon) referred to Bountree & Sons’ place of business as being “down on Third street,” and a fair inference from the evidence, and the only inference .that could legitimately arise, is that Bountree & Sons resided in Bibb county; and the trial judge, also a resident of Bibb county, sitting by consent without the intervention of a jury, was authorized so to find. If this question had been an issue under the pleadings in the case, or if there were any real doubt as to whether the contract had been recorded in the county where the vendees resided, our ruling would be otherwise, and we would hold, as in the cases cited by the plaintiff in error, that the fact that the instrument was so recorded must be affirmatively shown by direct evidence.

4. The other assignments of error, not being referred to in the brief of counsel for the plaintiff in error, are treated as aban-, doned. The finding of the judge was amply supported by evidence, no error of law appears, and the overruling of the motion for a new trial was not error.

Judgment affirmed.

JenJcins and Bloodworth, JJ., concur.


author: Wade, C. J.

text:
    8314.
    BIGGERS v. THE STATE.
    1, 2. The court did not err in refusing to declare a mistrial on account of the statement made in the presence of the jury by the witness, or on account of the statement of counsel for the State, complained of as prejudicial to the accused.
    3. The verdict finding the accused guilty of larceny from the house was supported by evidence.
    Decided March 23, 1917.
    Accusation of larceny from house; from city court of Newnan—■ Judge Post. December 5, 1916.

      T. G. Farmer, for plaintiff in error.

      W. L. Stallings, solicitor, contra.
   Wade, C. J.

1. In the motion for a new trial it is contended that the court erred in refusing to declare a mistrial on the ground that one of the State’s witnesses “stated before the jury and in the hearing of the court and jury that while he did not know of his personal knowledge the defendant, George Biggers, stole the oats, yet information he had received upon investigation pointed to defendant as the leading party in the stealing of the oats, and that he was satisfied that George Biggers, the defendant, was one of the persons who had been stealing oats from him.” If there had been any room for misapprehension on the part of the jury as to whether these remarks were made as deductions from the evideuce, the prompt action of the court in directing the jury not to consider them obviated any prejudicial effect that they might have had if not followed by such direction.

3. It is contended that the court erred in failing to declare a mistrial on account of the following language of counsel for the State: “Now, gentlemen of the jury, Mr. Arnall (indicating) does not know how much Biggers may have stolen from him during the time he lived on his farm.” This exception is wholly without merit, since the trial judge, when his attention was called to this statement, promptly admonished counsel to stay within the evidence; and thereupon counsel stated to the court in the presence of the jury that he “was simply drawing deductions and conclusions from the evidence in the case, and not stating as a fact that Biggers had been stealing from Arnall.”- In view of the circumstances in proof and this statement by the prosecuting attorney, the remarks excepted to must be construed to mean that the testimony led counsel to the conclusion expressed. See Broznack v. State, 109 Ga. 514 (35 S. E. 123); Smalls v. State, 105 Ga. 669 (31 S. E. 571); Holmes v. State, 7 Ga. App. 570 (67 S. E. 693). “A statement by the prosecuting attorney in his argument, expressive of his opinion of the defendant’s guilt . ... should be construed to .mean that the testimony led him to this conclusion. . . What the law condemns-is the injection into the argument of extrinsic and prejudicial matters which have no basis in the evidence.” Floyd v. State, 143 Ga. 286, 289 (84 S. E. 971). See also Sutton v. State, 18 Ga. App. 162, 166, 167 (88 S. E. 1005); Owens v. State, 120 Ga. 209 (3), 210 (47 S. E. 545).

3. There was evidence to support the finding of the jury, and the trial court did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., concur.


author: George, J.

text:
    8315.
    Hall v. The State.
    Decided March 23, 1917.
   George, J.

No error of law is complained of, and the evidence is sufficient to support the verdict of guilty. The court did not err in overruling the motion for a new trial, based upon the general grounds only.

Judgment affirmed.

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

Accusation of misdemeanor; from city court of Tifton—Judge Eve. 'November 4, 1916.

J. B. Murrow, for plaintiff in error.

J.'S. Bidgdill, solicitor, contra.


author: ,Wade, C. J.

text:
    8320.
    Duffey v. The State.
    Decided March 23, 1917.
    Accusation of larceny; from city court of Carrollton—Judge Beall. October 20, 1916.

      S. C. Boykin, for plaintiff in error.

      Willis Smith, solicitor, contra.
   ,Wade, C. J.

1. The bill of exceptions was not sued out in time to preserve the exception therein based upon the overruling of a demurrer to the accusation, and. there was no exception pendente lite. The assignment of error upon the same ground, which appears in the motion for a new trial, can not be considered. Redwine v. Street, 18 Ga. App. 77 (89 S. E. 163) ; Kent v. State, 15 Ga. App. 210 (82 S. E. 762) ; Wills v. Young, 15 Ga. App. 352 (83 S. E. 275); Coulson v. State, 13 Ga. App. 148 (2), 150 (78 S. E. 1108), and cases there cited; Mayor &c. of Dublin v. Dudley, 2 Ga. App. 762 (59 S. E. 84).

2. There is no substantial merit in either of the two remaining special grounds of the motion for a new trial.

3. The evidence supported the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

■George and Luke, J.J., eoneur.


author: Luke, J.

text:
    8368.
    GRACE v. THE STATE.
    Where the State relies on circumstantial evidence for the conviction of one charged with gaming, it is error for the court to allow, over proper objection, evidence of a prior conviction of the defendant of the offense of keeping a gaming-house.
    Decided March 23, 1917.
    Rehearing denied April 21, 1917.
    ' Accusation of gaming; from city court of Macon—Judge Guerry. December 30, 1916.

      Jesse Harris, John B. Cooper, for plaintiff in error.

      Will Gunn, solicitor, contra.
   Luke, J.

The plaintiff in error was charged with the offense of gaming, and the State relied on circumstantial evidence for the conviction of the accused. Over objection, properly and timely made, the court permitted the State to introduce in evidence the record of the defendant’s conviction of keeping a gaming-house some time before. This evidence is too highly prejudicial to be admissible for the purpose of rebutting the following part of the defendant’s statement to the jury: “I have not played any cards for money within the last six or seven years. I used to play cards, and let me say I have always pleaded guilty and paid my fine like a man. I have never fought a case before on gambling indictment. I came up and pleaded guilty.” Bashinski v. State, 123 Ga. 508 (4), 511 (51 S. E. 499).

The assignments of error other than that dealt with above are without merit. Eor the reason given, the court erred in overruling the motion for a new trial.

Judgment reversed.

1Nade, G. J., and George, J., concur.


text:
    8369.
    Stocks v. The State.
    Decided March 23, 1917.
    Certiorari; from Fulton superior court—Judge Pendleton. November 21, 1916.

      Thomas B. Broion, for plaintiff in error.

      John A. Boylcin, solicitor-general, Lowry Arnold, solicitor, E. T. Williams, E. A. Stephens, contra.
   Wade, C. J.

The evidence was sufficient to support the inference that a sale of whisky had been consummated by delivery in exchange for an agreed purchase-price accepted by the defendant at the time, and therefore this court can not hold that the judge of the superior court erred in' overruling a certiorari, where error wás assigned upon general grounds only. Judgment affirmed.

George and Luke, JJ., eoneur.


text:
    8374.
    CHISLON v. THE STATE.
    1. Where on the trial of a criminal case the evidence fails to show a confession of guilt by the accused, it is error to charge the jury on the law of confessions.
    2. The assignments of error on other instructions of the court are, so far as insisted upon in the brief of counsel, without merit.
    Decided March 23, 1917.

      Accusation of misdemeanor; from city court of Dublin—Judge Flynt. December 6, 1916.

      W. A. Dampier, for plaintiff in error.

      8. P. New, solicitor, contra.
   George, J.

1. The plaintiff in error was tried on an accusa-. tion in the city court of Dublin, charging him with the offense of larceny from the person. A verdict of guilty was returned, and his motion for a new trial was overruled. During the trial the judge gave in charge to the jury the sections of the Penal Code relating to confessions of guilt; and this is, assigned as error on the ground that it was not authorized by any evidence in the case. The exception is well taken, and, on the authority of Thomas v. State, 143 Ga. 268 (3), 269 (84 S. E. 587), Dumas v. State, 63 Ga. 601 (5), and Knight v. State, 114 Ga. 48, 51 (39 S. E. 928, 88 Am. St. R. 17), the judgment must be reversed on that account. The court probably treated as a confession of guilt the statement to the prosecutor, made by the accused at the time of his arrest. After his arrest he engaged in conversation with the prosecutor, and asked the prosecutor not to prosecute him. During the conversation he directed this inquiry to the prosecutor: “If I will pay you your money back, will you prosecute me?” In Thomas v. State, supra, it was said: “A confession of guilt is an acknowledgment in express terms, by a party in a criminal case, of the crime charged, or of facts which of themselves constitute the crime charged.” In that case the defendant, who was tried and convicted of the offense of murder, said, while in jail awaiting trial, that they had put her and her brother, Joseph Jackson, and Boizy Watkins in jail, but they had turned her brother loose, and it looked like they ought to turn her loose, that “he knows as much about it as us do, he is into it as much as us, and looks like they oughf to turn me loose.” Moreover, the codefendant, Boizy Watkins, made, in the presence of the defendant, a direct confession, detailing the part taken in the commission of the homicide by himself, the brother of the defendant, and by the defendant herself. She did not contradict any statement made, by the codefendant in her presence, directly implicating her in the commission of the offense. The Supreme Oourt there ruled that no confession of guilt by the accused had been shown by the evidence, and that it was error to charge on the law of confessions. It is useless to multiply authority. The proposition made by the accused to pay the prosecutor the amount of money alleged to have been taken from his person on condition that the case against him be dismissed is in no view an acknowledgment in express terms of the crime charged, or of facts which of themselves constitute the crime charged. At most, this statement is an incriminating admission, to be considered along with the other circumstances in the case.

S. The remaining assignments of error upon the charge of the court are without merit. The case does not depend entirely upon circumstantial evidence, and it was therefore not error to fail to ■charge the rule contained in section 1010 of the Penal Code of 1910, in the absence of a timely written request so to do. If upon another trial of this case the accused desires a charge upon the law of circumstantial evidence, the court should comply with a proper and timely request by giving the .law as embraced in that code section. Much of the evidence in the ease is purely circumstantial, and for this reason the court should not decline, upon request made, to giv'e in charge the law embraced in that section. Inasmuch as the case is to be retried, we do not discuss the evidence.

Judgment reversed.

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


text:
    8375.
    Chislon v. The State.
    Decided March 23, 1917.
    Accusation of larceny from person; from city court of Dublin— Judge Plynt. December 16, 1916.
    The accusation charged that the accused “did . . unlawfully, wrongfully, fraudulently, privately, and without the consent of” Prank Butler, take from the person of the said Butler certain money (described), with intent to steal the same, contrary to the laws of this State, etc. The accused was convicted and sentenced, and on the same day moved to set aside the verdict and judgment, contending that the accusation was -fatally defective because it failed to charge that the taking was “without the knowledge” of the person from whom the money was taken. The motion was overruled, and he excepted.
   Luke, J.

The motion to arrest the judgment is without merit, and the court did not err in refusing to set aside the judgment.

Judgment affirmed.

Wade, O. J., and George, J., concur.

Cited by counsel:

Gilbert v. State, 17 Ga. App. 143; Smith v. State, 17 Ga. App. 612; Lanier v. State, 5 Ga. App. 472; Badger v. State, 5 Ga. App. 477; Harris v. State, 58 Ga. 332; Smith v. State, 60 Ga. 430; Hicks v. State, 60 Ga. 464; Jordan v. State, 60 Ga. 656 (2); Bailey v. State, 65 Ga. 411; Yates v. State, 67 Ga. 770; Adkins v. State, 103 Ga.10.

W. A. Bampier, for plaintiff in error.

S. P. New, solicitor, contra.


text:
    8388.
    LEDFORD v. THE STATE.
    1. On. the trial of a person indicted, for the commission of a felony other than one of those enumerated in § 1062 of the Penal Code of 1910, it is the duty of the court to inform the jury of so much of the provisions of that section as relate to their power, in the event of conviction, to recommend that the accused be sentenced as for a misdemeanor, and that such recommendation is effectual to reduce the penalty only when approved by the trial court.
    2. Where such omission occurs in the general charge given the jury, it is the right and duty of the court to recall the jury after they have retired to consider their, verdict, and to supply the omitted instructions.
    3. The charge of the court in the ease at bar was not erroneous for any of the reasons assigned, and the objections taken as to the admission of evidence are without merit. The verdict is not without evidence to sustain it, and the trial court did not err in overruling the motion for a new trial.
    Decided March 23, 1917.
    Indictment for altering and defacing record, etc.; from DeKalb superior court—Judge Smith. December 22, 1916.

      L. J. Steele, Alonzo Field, for plaintiff in error.

      George M. Napier, solicitor-general, contra.
   George, J.

The indictment is based on section 284 of the Penal Code of 1910, and contains two counts. In the first count the defendant is charged with the offense of defacing and falsifying a certain document and instrument recorded in the office of the clerk of the superior court of DeKalb county, Georgia, to wit, a deed (copied) dated August 2, 1914, from W. B. Henderson to the defendant, conveying certain lands described, which was duly recorded on November 18, 1914, in Deed Book No, 88, page 263, of the records belonging to the office of the clerk of the superior court 'of DeKalb county, Georgia, the same being a public office within this State. In the second count the defendant is charged with altering and defacing a certain book, to wit, Deed Book No. •38 of the records belonging to the office of the clerk of the superior court of DeKalb county, Georgia, the same being a public office within this State, by then and there removing and tearing from page 263 of said book a certain deed from W. B. Henderson to the defendant, dated August 2, 1914, and recorded in said deed book at page 263, on November 18, 1914. The defendant was found guilty with a recommendation that he be punished as for a misdemeanor.

In the motion for a new trial, which was overruled by the presiding judge, it is complained that the court erred in admitting the testimony of the clerk of the superior court of DeKalb county, as follows: “I discovered the record torn from Deed Book 84;” and it is further complained that the court erred in admitting in evidence Deed Book 84, from which pages 515 and 516 appeared to have been-removed. According to the testimony of the clerk, the instrument recorded on pages 515 and 516 was a deed executed by the defendant, O. B. Ledford, and his father, B. H. Ledford, to W. B. Henderson, the grantor in the deed referred to and described in the indictment. We think that this evidence was .material and relevant to the issue. It is true that the defendant was not indicted for'defacing or falsifying this particular deed, nor this particular record of deeds, but the contention of the State, which was established by the evidence in the case, was as follows: The defendant, 0. B. Ledford, decided upon a plan to have erected a building on a certain lot owned jointly by himself and father, and entered into an agreement with W. B. Henderson, to deed the land to Henderson for the purpose of enabling Henderson to place a loan thereon through one D. M. Matthews, in order to raise the money necessary for the erection of the building. The defendant and his father made the deed to Henderson and Henderson obtained a loan upon the land conveyed therein. Henderson failed at this enterprise, and the defendant found himself with a mortgaged lot on which was an incompleted building. One of the witnesses for the State testified that he informed the defendant that the giving of the deed to Henderson was a foolish thing, and the evidence further discloses that Ledford, upon the failure of Henderson to complete the building, approached the party through ■whom the loan on the lot was negotiated and asked for an increase in the loan. This increase was refused him, and he was offended. He asserted to the loan agent that he would “beat the mortgage” or would “beat” the lender. The evidence for the State clearly-showed the execution of the deed by the Ledfords to Henderson, and further disclosed that Henderson, who, after his failure to complete the building according to his contract, was incarcerated in Fulton county jail, had deeded the property back to the defendant. The latter deed is the deed referred to and described in the indictment. Hpon the trial of the charge of falsifying this latter deed and the record thereof, and of defacing and altering the book in which it was recorded, it was entirely proper to admit evidence that the deed out of the defendant and into Henderson had likewise been removed from Deed Book 84 of the records of file in the office of the clerk of the superior court of DeKalb county. This evidence was admissible to establish (1) motive, (3) intent, (3) a common scheme or plan embracing the commission of two or more crimes so closely related to each other that the proof of one tends to establish the other, and (4) the identity of the person charged with the commission of the crime. By removing all traces of. the two conveyances—the one from the Ledfords to Henderson and the other from Henderson back to the defendant O. B. Led-ford—the mortgage executed by Henderson to Matthews would appear to be fraudulent, as no title would be of record in Henderson. The jury found that by this method the defendant attempted to “beat” the mortgage placed upon the property by Henderson, and the verdict is supported by the evidence. On the admissibility of this testimony see Bates v. State, 18 Ga. App. 718 (90 S. E. 481), and eases cited in the opinion.

The court allowed the witness Matthews for the State to testify that he made the loan to Henderson, the contractor, and permitted this witness to point out the property upon which the loan was made. It was insisted on the part of the accused that, if a loan were made, the writing would be the best evidence of that fact, and of the particular property upon which the loan was made. The court confined the State, upon this objection, to proof merely that a loan was made, and that before the making of the loan the property was visited and inspected. Testimony to.this effect by Henderson, the contractor, who was sworn as a witness for the State, was likewise admitted. The trial judge properly admitted this testimony. He did not allow the State to prove by parol any of the terms or provisions of a written contract, but permitted the witnesses to testify to the making of a contract, and that a loan was executed upon lands personally inspected, and that a building was commenced and partially completed upon a particular lot. The witness Henderson was further permitted to testify that he reconveyed the property deeded him by the Ledfords to the defendant individually, and pointed out the particular property. Objection to this testimony, was made on the ground that it “attempted to go into the contents of the deed.” The evidence for the State disclosed that both the deed from the Ledfords to Hen-’ derson, and the deed from Henderson to Ledford, had been delivered by Henderson, while in jail, to the defendant, and the court properly admitted xthe testimony. Possession of these instruments having been shown in the defendant, he could not be required to produce them for inspection by the jury, and oral evidence of the contents of the deeds, or either of them, was admissible. Thomas v. State, 19 Ga. App. 104 (91 S. E. 247), and cases there cited.

The court did not err in refusing “to exclude all the testimony in regard to the contract for the erection of the building,” alleged to have been entered into between Henderson and the defendant. The court restricted the testimony to the fact of the execution of the contract, and refused to admit in evidence any of the details of the contract. Certainly the existence of a writing, even where the writing is accessible to the State, may be shown by parol, and the fact of the execution of the contract may be shown by parol. There is no higher evidence of such fact.

It is contended that the court erred infailing to instruct the jury that in the event they found the defendant guilty, they might add to their verdict a recommendation that he be punished aS for a misdemeanor; and it is further contended that, after the jury had retired and had considered the case for a considerable length of time, it was error to cause the jury to be returned to the box and to supply the omitted charge. It is insisted that this charge,- given under the circumstances indicated, influenced the jury to return a verdict of guilty against the defendant. We do not think that the conduct of the court in recalling the jury and in supplying this omitted charge was error. Indeed, the judge did precisely what he should have done, as we understand the law. The jury in the trial of a criminal case may be recalled for the purpose of giving them an appropriate instruction previously omitted. Of course, a recharge to the jury may, in exceptional cases, harmfully affect the rights of the defendant. It is the better practice to charge every pertinent principle of law applicable to the case before the jury retires from the box. However, if the court should omit to charge some pertinent principle of law applicable to the issues in the case, it is right and proper that the jury should be recalled and the omitted instruction given. If the court is careful to .guard and protect the rights of the defendant, the defendant can not have just ground of complaint. In this very case the court cautioned the jury as follows: “Because of the necessity of adding these instructions, I warn you not to allow these added instructions to in any way influence you in determining the issues or arriving at a verdict. This additional charge must not be considered by you as in any way intimating to you any opinion as to the merits of the case, as the court has none and does not express any opinion. You must consider the issues in the case in the same fair and impartial manner as though these additional instructions had been given you at the time of the general charge.” See Pritchett v. State, 92 Ga. 65 (9), 66 (18 S. E. 536); Rockmore v. State, 93 Ga. 123 (3) (19 S. E. 32); Reeves v. State, 117 Ga. 38 (43 S. E. 404). We find no error in the instructions given the jury upon the second charge. The recommendation of the jury that the defendant be punished as for a misdemeanor was approved by the trial court, and the defendant was accordingly sentenced. The verdict finding him guilty of the offense charged, as hereinbefore indicated, is not without evidence to support it, and the trial court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    8395.
    CAMPBELL v. THE STATE.
    The evidence authorized the conviction of the defendant, and the court did not err in overruling the motion for a new trial.
    Decided March 23, 1917.
    Indictment for misdemeanor; from Muscogee superior court— Judge Munro. December 28, 1916.

      T. T. Miller, for plaintiff in error.

      C. F. McLaughlin, solicitor-general, contra.
   Luke, J.

The plaintiff in error was indicted for having unlawfully in his possession within a period of thirty consecutive days more than two quarts of spirituous and intoxicating liquors. The evidence authorized the jury to find that the defendant did have' and possess more than two quarts of spirituous and intoxicating liquors within thirty consecutive days; and the jury were authorized to discredit the contention that he was a carrier in possession of the liquor, transporting it from Alabama to Georgia for guests at a hotel. Before a carrier could lawfully transport and deliver intoxicating liquor there were certain requirements of law with which it was necessary to comply. Under the evidence the jury could not find that this defendant was a carrier as contemplated by the law which he was charged with violating. The court did not err in refusing to give the instructions embodied in the written requests of the defendant, and did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, G. J., and George, J., concur.


author: Wade, O. J.

text:
    8399.
    Hunter v. The State.
   Wade, O. J.

1. While section 5884 of the Civil Code (1910) declares that, “if a witness swear willfully and knowingly falsely, his testimony ought to be disregarded entirely, unless corroborated by circumstances, or other unimpeached evidence,” yet even without any corroboration the jury may credit a witness against whom there is impeaching evidence. It is for them to say whether he has sworn “willfully and knowingly, falsely;” and the whole question as to the credibility of witnesses is for the jury, under any and all circumstances. Rice v. Eatonton, 15 Ga. App. 505, 508, 509, 510 (83 S. E. 868) ; Huff v. Brown, 104 Ga. 521, 523 (30 S. E. 808) ; Brown v. State, 10 Ga. App. 50 (72 S. E. 537); Solomon v. State, 10 Ga. App. 469 (73 S. E. 623); Ramsey v. Atlanta, 15 Ga. App. 345 ( 83 S. E. 148), and cases there cited; Brown v. State, 17 Ga. App. 402 (2) (87 S. E. 155).

Decided March 23, 1917.

Indictment for sale of liquor; from Pike superior court—Judge Searcy. December 26, 1916.

O. J. Lester, Henry 0. Farr, for plaintiff in error.

E. M. Owen, solicitor-general, contra.

2. The evidence sufficiently supported the inference that a sale was intended and effected by the defendant.

3. The court did not err in refusing to exclude the testimony of a witness that to the best of his knowledge and belief the defendant on trial was the man who had sold him whisky. The value of this testimony was for the jury, and the question of identity was a matter wholly for their determination. Gray v. State, 6 Ga. App. 428 (4), 432 (65 S. E. 191).

.4. The court confined the testimony as to the purchase of intoxicants from the defendant to a period of two years prior to the finding of the indictment, and expressly ruled out anything in the answer of a certain witness that might refer to transactions occurring prior to that period. ' The court did not err in declining to rule out the testimony altogether. 5. The trial court did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Luhe, JJ., ooneur.