text:
    11419.
    Smith v. The State.
    Decided May 11, 1920.
    Indictment for sale of liquor; from Marion superior court — Judge Howard. February 21, 1920.
    Under an indictment charging that on October 4, 1919, he had in Ms possession and sold intoxicating liquor, Elder Smith was convicted on testimony of Red Smith, who swore that on the night of that day the defendant sold to him in Tazewell, Marion county, a half-pint of whisky in the presence of Willis Stewart and John Flournoy. The only witness at the trial besides Smith was Frank Walton, who testified to a contradictory statement of Smith. One of the grounds of the defendant’s motion for a new -trial, the overruling of which is assigned as error, was the refusal of the court to continue the ease and allow him time to get his witnesses. In the record it is stated: “ When the case was called for trial about 9 o’clock on the morning of 29th of October, 1919, defendant’s counsel stated that he had just been employed, and asked for time to get his witnesses, all of whom lived a short distance from town. The solicitor passed the case until afternoon. Defendant immediately got subpoenas for these witnesses, to wit, Simon Trice, Big Johnson Boberts, Tobe Carson, and Sim Blue, delivered them to the sheriff, and told him where to find the witnesses, and told him to serve them. The case was again called about 3 o’clock in the afternoon of the same day. Defendant’s counsel, in open court, called the witnesses and they failed to answer; he then asked the sheriff if they had been served; he said he gave t"he subpoenas to Bailiff L. E. Wiggins, with instructions to serve them, and that he had ample time to have done so. Wiggins then stated that ho had the subpoenas in his pocket and had not tried to serve them, that he meant to serve them after court adjourned for the day. Counsel for defendant moved for a continuance of the case and stated in his place that since his employment he had done all he could to get ready for trial, that the officer had had the subpoenas long enough to have served the witnesses if they had tried, and that he had not had sufficient time to prepare for trial. It was also shown that the indictment was returned into court on the 27th day of October, 1919. Defendant was then sworn and testified that his witnesses were not absent by his permission or consent, that he had gotten subpoenas for them through his attorney, delivered them to the sheriff, and told him where each witness lived and could be found, and the officers had had ample time in which to serve them, that he did not make the motion for the purpose of delay, but to get his witnesses, that they live in Marion county and he expected to have them at next court, that he expected to prove by each of said witnesses that they were with him and in his immediate presence all the time that he was with Bed Smith at the time he is charged with selling Bed Smith the whisky, and they will each swear that he never let Bed Smith have any whisky, that they went to Tazewell with the defendant and were with him until he left, and know that he did not have any whisky, but that Bed Smith had whisky there on that occasion. The motion was overruled by the court. Counsel for defendant then asked that the case be passed until the next morning and that the officer be sent for the witnesses; which was also refused, and the case proceeded to trial.”
   Broyles, C. J.

Under the facts of the case the court erred in overruling the defendant’s motion for a continuance, and this error rendered the further proceedings upon the trial nugatory.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

In the motion for a new trial it is stated that the movant “attaches hereto the affidavits of said absent witnesses, showing their evidence;” and affidavits of Simon Trice, Willis Stewart, John Flournoy, Tobe Carson, and Sim Blue are attached, in which it is stated that on the night of October 4, 1919, they saw Elder Smith when he came to Tazewell, and that they were with him until he left Tazewell that night, and saw Bed Smith all the time that he was with Elder Smith, that Elder Smith did not furnish or sell to Bed Smith any whisky or other intoxicant that night, and could not have done su without their seeing it, and that Bed Smith was the only person there who had whisky.

W. D. Crawford, for plaintiff in error.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    10967.
    Tompkins v. American Land Co.
    Decided May 12, 1920.
    Levy and claim; from Johnson superior court — Judge Kent. June 21, 1919.

      Hines, Hardwick & Jordan, A. L. Hatcher, B. H. Moye, for plaintiff in error.

      Faircloth & Claxton, B. T. Rawlings, Lamar C. Rucker, contra.
   Luke, J.

1. Shares, of stock in a corporation may be levied upon by giving notice of the levy to the defendant and to the officers or agents who have access to the books of the corporation, and sale of the stock under the levy may be made only by the sheriff or his deputy. See Weaver v. Tuten, 144 Ga. 9 (5) (85 S. E. 1048) ; Park’s Ann. Code, §§ 6035, 6036.

2. In this case the evidence was somewhat conflicting, or not definite, as to the particular day of the transfer of the shares of stock levied upon to the claimant by the' defendant in fi. fa., the books of the corporation having been destroyed by fire; but the evidence does show that the transfer was made, and the shares of stock did not stand in the name of the defendant in fi. fa. at the date of the judgment upon which was based the fi. fa. levied upon the stock; nor at the time of the levy of the fi. fa. did the defendant in fi. fa. have any such shares of stock as levied upon standing in his name upon the books of the corporation.

(a) The claimant carried the burden of proving that she was the owner of the stock at a time prior to the rendition of the judgment upon which was based the execution levied thereon. The evidence did not authorize a verdict for the plaintiff, and for this reason it was error to overrule the motion for a new trial.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11279.
    Welborn, alias Faver, v. The State.
    Decided May 12, 1920.
    Indictment for felony; from Wilkes superior court — Judge Walker. December 13, 1919.
    Under an indictment for larceny of a hog, Welborn, alias Favor, was found guilty with a recommendation that he be punished as for a misdemeanor. The material facts appear in the report of the case of Welborn v. State, ante, 245, which was tried with this case.

      Colley & Colley, Hugh E. Combs, for plaintiff in error.

      R. C. Norman, solicitor-general, contra.
   Luke, J.

“In order to warrant a conviction of a felony upon the testimony of an accomplice, the corroborating circumstances must be such as would lead to the inference that the defendant is guilty, independently of the testimony of the accomplice.” Butler v. State, 17 Ga. App. 522 (1) (87 S. E. 712), and cit. Under this rule the conviction of the defendant in the instant case was unauthorized, and the court erred in overruling the motion for a new trial.

Judgment reversed,.

Broyles, C. J., and Bloodworth, J., concur.


author: Broyles, C. J.

text:
    11324.
    Blackshear v. The State.
    Decided May 12, 1920.
    Accusation of larceny; from city court of Dublin—Judge Flynt. January 24, 1920.
    One of the grounds of the motion for a new trial was as follows: " Because the defendant, through his counsel, prior to announcing ready for trial on the call of the case, moved the court for a continuance therein, on the following grounds: This case was continued on Monday prior to the day actually tried, at the instance of the defendant, until a later day in the term, on account of three absent witnesses, their evidence being shown to the court to be material, and they haying been served with subpoenas to attend court, and said motion in all other respects complying with . . the Criminal Code of Georgia. At the time the court granted the continuance he set the case for a later day during the term. Capt. W. C. Davis, representing the State, then stated to the court that he would like to have the absent witnesses attached, and the court accepted this suggestion and stated that attachments should issue. The court reporter was excused from attendance on the court on that day, and it was he who usually issued attachments for witnesses, under the court’s instructions. On the day the case was called and tried, counsel for defendant moved for a continuance, because the witnesses were still absent, although the defendant stated he had seen two of them and they had promised to attend court. The court then inquired if'counsel for defendant had taken attachments for the witnesses, and counsel replied that he had not, because he understood that the court reporter issued the attachments and he did not know the reporter was absent on the Monday preceding. No attachments for the witnesses had been issued, and, on this fact being made known to the court, he ordered the case to trial. . . The court should not have charged the defendant with neglect or indifference in failing to have said witnesses attached, since it appears that for many years it has been the practice in said court for the court reporter to issue attachments for witnesses.” Affidavits were submitted in support of this ground of the motion for a new trial.
   Broyles, C. J.

Under the particular facts of the case, the court erred in overruling the defendant’s motion for a continuance; and the further proceedings were nugatory.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

G. C. Bedgood, J. E. Burch, for plaintiff in error.

W. C. Davis, solicitor pro tem., contra.


text:
    11325.
    McNeely v. The State.
    Decided May 12, 1920.
   Luke, J.

1. The fact that a grand jury has made a return of “no bill” or failed to find a bill of indictment against a person does not prevent the resubmission and finding of another bill for the same offense by the same or another grand jury. See 22 Cyc. 207 (6). Accordingly, in the instant case, the court did not err in overruling, the special plea in bar and the motion to quash, which set up that the same grand jury that returned this bill of indictment against the defendant had previously, at the same term and upon the same facts and the testimony of the same witnesses, made a return of “ no bill ” upon the same charge against him.

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

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.

Conviction of stabbing; from Jefferson'superior court—Judge Hardeman. January 10, 1920.

J. R. Phillips, A. R. Wright, for plaintiff in error.

Walter F. Grey, solicitor-general, contra.


text:
    11328.
    Powell v. The State.
    Decided May 12, 1920.
    Indictment for assault with intent to murder; from Macon superior court—Judge Littlejohn. January 12, 1920.
    The indictments referred to in paragraph 1 of the decision were against Andrew Humph, and in the motion for a new trial it was contended that they were admissible as evidence (1) for the purpose of impeaching Doc Newsome, the prosecutor in this case, (2) because they threw light on the defendant’s contention that the pistol used in shooting Doc Newsome Jr. (whom the defendant was charged with shooting) belonged to Andrew Kumph, (3) because they threw light on the defendant’s contention that the shooting was not by him but by Kumph, and (4) because they contradicted the testimony of Kumph, who testified for the State in this case. The part of the motion which describes the indictments is as follows: “The court erred in refusing to permit the defendant to introduce in evidence the two indictments of the State of Georgia vs. Andrew Kumph, one of which charged Andrew Kumph with carrying a concealed pistol, and the other . . with carrying a pistol to the church, both indictments’ being returned to the November term, 1919, of Macon superior court; and in the ease of carrying a concealed weapon Doc Newsome Sr., a witness in the instant case was the only witness marked as testifying before the grand jury.” To show the materiality of the indictments the movant sets out answers of Doc Newsome on cross-exámination in this case, in which he said that he “ did not swear before the grand jury that Andrew Kumph carried a pistol to Stella Chapel,” and did not swear before the grand jury that Andrew Kumph had a concealed pistol “there on that occasion;” also testimony of Rumph that he did not have a pistol “there on that occasion.”
   Broyles, C. J.

1. Under the facts of the case the court did not, for any reason assigned, err in excluding from the evidence two indictments against a third person. ,

2. As the name of the witness is not given in the 6th and 7th grounds of the motion for a new trial, complaining of the admission of certain testimony, these grounds can not be considered.

3. The 8th ground of the motion for a new trial is not complete in itself, a reference to the preceding ground being necessary to understand it. Under repeated rulings of the Supreme Court and of this court, such a ground can not be considered by this court.

4. The several excerpts from the charge of the court complained of, when considered in connection with the entire charge, contain no material error.

5. Under the “indeterminate-sentence act” of 1919 (Ga. L. 1919, p. 387), the jury must prescribe a minimum and a maximum term of imprisonment which is within the minimum and maximum terms prescribed by law. In the instant case the defendant was convicted of assault with intent to murder, and the punishment for that offense is fixed by the Penal Code as imprisonment and labor in the penitentiary for not less than two years nor longer than ten years. The verdict was as follows: “ We, the jury, find the defendant guilty, to serve in the penitentiary for a term of not less than ten years nor over ten years.” The jury, by this verdict, prescribed a minimum and maximum term of imprisonment which was within the minimum and maximum terms prescribed by law, as required by tlie statute, and the exceptions to the verdict are without merit.

6. The verdict was amply authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Hatcher & Smith, John B. Guerry, for plaintiff in error.

Jule Felton, solicitor-general, contra.


text:
    11345.
    Moses v. The State.
    Decided May 12, 1920.
   Broyles, C. J.

1. Tho evidence was sufficient to authorize the jury to find that the offense was committed in Macon county.

2. Under repeated rulings of the Supreme Court and of this court, the failure of the judge to instruct the jury upon the subject of impeachment of witnesses is not error, unless a timely and appropriate written request therefor has been presented.

3. The evidence, while circumstantial, was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt, and the court did not err in refusing to set aside the finding 'of the jury.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Indictment for larceny; from Macon superior court — Judge Littlejohn. January 7, 1920.

Jere M. Moore, John B. Guerry, for plaintiff in error.

Jule Felton, solicitor-general, contra.


text:
    11365.
    Allen v. The State.
    Decided May 12, 1920.
    Accusation of possession of liquor; from city court of Floyd county—- Judge Nunnally. February 6, 1920.
    Allen was charged with having had in his possession, custody, and control intoxicating liquor. M. D. Martin testified, that he saw near Lindale men and boys, “ all during the day,” walking and in automobiles, going to and from a place up a hill where whisky was afterwards found by him, and bringing away something with the sun shining on it that had the appearance of being jugs and bottles, and he notified the sheriff, and he and the sheriff took a trail which Ted up the hill, and when they got up there they saw the defendant alone, sitting on or in reach of a keg containing between 10 and 15 gallons of whisky, 35 or 40 yards from the road, and where it could not be seen from the road; the defendant was “ leaning sorter up against the keg,” and a quart cup was sitting there; he was doing nothing, and he said he had come up there to get-some whisky and was waiting for the man who owned it to come back; that the whisky was not his whisky. The witness had seen the defendant and another man leave the main public road and go up the hill to or towards this place. The sheriff testified, that when he and Martin reached there the defendant was sitting at the end of the keg, and could have laid his hand on it; that the defendant said he was waiting on the man that had the whisky, and had come there to get a quart of it, that it was not his whisky, but belonged to Will West; he was searched and no whisky or bottle was found on his person; he had a nickel in money. The witness further testified that not more than five or ten minutes before he got to that place he saw the defendant and Will West going up there together, and that Will West came down the hill by himself stopped with some boys at an automobile, and remained there 'while the witness was going up the hill. The defendant, in his statement at the trial, said that some boys told him and Will West that there was some whisky “ over there,” and Will said to him “ Let’s go and get some of it,” and he gave to West what money he had, and “he was going to get the whisky” when they got there, that they heard a car coming, and Will remained to see who was in the car and told him to go on up there; and when he got there he saw the keg and sat down, waiting to get some of it.
   Broyles, C. J.

Tlie evidence, as disclosed by the record, was insufficient ■to authorize the defendant's conviction, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

W. B. Mebane, for plaintiff in error.

J. F. Kelly, solicitor, contra.


text:
    11404.
    Palmer v. The State.
    Decided May 12, 1920.
    Indictment for manufacture of intoxicating liquor; from Bar-tow superior court —Judge Tarver. February 13, 1920.

      Neel & Neel, for plaintiff in error.

      Joseph M. Lang, solicitor-general, contra.
   Luke, J.

1. The evidence connecting the defendant with the offense charged, while slight, was 'sufficient to exclude every reasonable hypothesis save that of his guilt.

2. None of the special grounds of the motion for a new trial shows cause for a reversal of the judgment below.

Judgment affirmed.

Broyles, C. J. and Bloodworth; J., concur.


author: Jenkins, P. J.

text:
    10735.
    Linder v. Pope.
   Jenkins, P. J.

1. The plaintiff sued for rent, and showed that for a number of previous years, not embraced in the term sued for, the defendant had given rent notes for the designated land, which he thereafter remained in possession of. The defendant denied that he was or had ever been the tenant of the plaintiff; he claimed to be the true owner of the land, and that the plaintiff, at his request, simply advanced money to redeem the land, taking title in himself, and that the relation of lender and borrower, and not of landlord and tenant, existed between them; that the rent notes which he had given to the plaintiff were not bona fide, but were given merely at the plaintiff’s request, as a subterfuge, in order to protect the plaintiff in some anticipated litigation with his grantor. The jury found for the plaintiff. Held:

Decided May 12, 1920.

Complaint;, from X&urons superior court — Judge Kent. May 24, 1919.

1. The evidence for the plaintiff sufficiently established.an express contract for rent under the relationship of landlord and tenant. If, after the expiration of a lease for a year, the tenant, with the landlord’s consent, continues in possession, the law will imply a renewal of the lease. Roberson v. Simons, 109 Ga. 361 (34 S. E. 604) ; Ridgway v. Bryant, 8 Ga. App. 564 (70 S. E. 28).

2. A ground of the motion for a new trial, which assigns error upon the exclusion of certain evidence given by the plaintiff in the trial of another case, but which does not in itself substantially set forth the evidence referred to, does not afford a ground for reversal.

3. The second and third grounds of the amendment of the motion for a new trial assigned error upon certain portions of the judge’s charge, wherein the question of the plaintiff’s title to the land involved was submitted to the jury, the defendant contending that such question could not bo submitted under the pleadings, and that, under the defense wherein it Was claimed that the defendant held the land adversely, the question of title was not involved in a suit for rent growing out of use and occupation. Held: Under the pleadings and the proof if appears that the plaintiff relied upon an express contract of rental, impliedly renewed; and while the law is that a tenant, while thus actually holding under such a contract, cannot dispute liis landlord’s title, still he could not, in denying such a contract, be heard to complain that his own contention in support of his denial,'to the effect that the plaintiff was without title and that his entry was adverse, was submitted by the charge to the jury. In a case where the suit is not based upon an express contract,. but where the claim for rent is sought to be enforced solely by virtue of an implied promise growing out of use and occupation, it is necessary for the plaintiff to show title in himself; whereupon, unless the defendant proves that his entry was adverse to the plaintiff, an implied obligation to pay rent ordinarily arises. Civil Code (1910), § 3692. It would seem that it was upon this theory, and in response to the pleading and proof of the defendant, whereby he thus sought to negative the existence of the alleged express rent contract, that the portion of the charge excepted to was given. Since the evidence authorized a finding that an express contract for rent had existed, and the verdict rendered could thus be arrived at, the charge as given was more favorable to the defendant that he was entitled to; and the question of title as thus sought to be raised by the defendant was not adjudicated by the verdict and judgment rendered.

Judgment affirmed.

Stephens and Smith, JJ., concur.

M. H. Blackshear, Burch & Daley, William Faircloth, for plaintiff in error.

James K. Hines, R. Earl Camp, J. S. Adams, contra.


author: Stephens, J.

text:
    10771, 10794.
    SNELLGROVE v. DINGELHOEF; and vice versa.

    Decided May 12, 1920.
    1. An executed sale may be rescinded on account of actual fraud; and, since fraud voids all contracts, no title to the property passes under such sale. Also, under a contract of sale where the property actually delivered is materially different from that contracted for, its acceptance by the buyer in ignorance of such material difference constitutes no sale, and no title passes.' In either case the buyer may, upon the discovery of the fraud, rescind the contract of sale, and, upon making or offering restitution, recover from the seller the purchase-money which has been paid to the seller.
    2. Where a seller agrees with a buyer to sell to the latter a new automobile, and afterwards, in pursuance of this agreement, and upon receipt of the purchase-price, delivers to the buyer a second-hand automobile, which has been repainted and worked over to resemble one that is new, with intent to deceive the buyer, ■ such conduct on the part of the seller may amount to actual fraud, and the buyer, having been deceived thereby, may upon discovery of the fraud rescind the sale; and, upon restoring or offering to restore the property to the seller, "the buyer is entitled to recover the purchase-money paid to the seller.
    Complaint; from Fulton superior court — Judge Bell. June 14, 1919.
    Snellgrove contracted with Dingelhoef for the purchase of an automobile, but no particular automobile was selected at the time. It was expressly agreed and understood that a new automobile was later to be delivered. In pursuance of this agreement Dingelhoef later, on receipt of the purchase-money from Snellgrove, delivered to the latter’s representative an automobile which Snellgrove received while ill, but after his recovery and after using the automobile, he discovered, on close inspection, that, instead of being a new one as contracted for, it was an old or second-hand one, repainted and worked over to resemble a new one. Snellgrove immediately upon this discovery tendered it back to Dingelhoef and demanded of him the return of the purchase-money. Dingelhoef refused to accept the automobile or to return the purchase-money. Snellgrove thereupon brought suit to recover the money. Upon the trial of the case, the evidence having shown the foregoing state of facts, the judge nonsuited the plaintiff; and the plaintiff excepted. The petition, which alleged substantially the same facts, was sustained as against the defendant’s general demurrer, and he excepts by cross-bill.

      Hines, Hardwick & Jordan, for plaintiff.

      Little, Powell, Smith & Goldstein, W. J. Davis Jr., for defendant.
   Stephens, J.

(After stating the foregoing facts.)

No title passes to the vendee where an executed sale of personal property has been induced by actual fraud on the part of the seller. Johnson v. Harley, 121 Ga. 83 (48 S. E. 685), and cases there cited. “Fraud voids all contracts.” Civil Code (1910), § 4254. “Fraud may exist from misrepresentation by either party, made with design to deceive, or which does actually deceive the other party; and in the latter case such misrepresentation voids the sale. . . Such misrepresentation may be perpetrated by acts as well as words, and by any artifices designed to mislead.” . . Civil Code (1910), § 4113.* “ Concealment of material facts may in itself amount to a fraud . . where one party knows that the other is laboring under a delusion with respect to the property sold or the condition of the other party, and yet keeps silent,” or “ where the concealment is of intrinsic qualities of the article which the other party, by the exercise of ordinary prudence and caution, could not discover.” Civil Code (1910), § 4114. “Where one party to a contract of sale knows that the other is laboring under a delusion or mistake with respect to a material fact affecting the value of the property, and not only keeps silence with respect thereto, but, by artifice, adds color and credence to the delusion or mistake, he is guilty of fraud equivalent to an express misrepresentation.” Marietta Fertilizer Co. v. Beckwith, 4 Ga. App. 245 (1) (61 S. E. 149).

While the fraud must arise out of a false representation of an existing fact, such representation may at the same time be a warranty. Larey v. Taliaferro, 57 Ga. 443; Dye v. Wall, 6 Ga. 684; Newman v. Claflin Co., 107 Ga. 89, 93 (32 S. E. 943); 14 Am. & Eng. Ency. Law (2d ed.), 168. While a breach of warranty will not annul an executed sale (Civil Code of 1910, § 4136), yet where the warranty also amounts to a fraud, which voids all contracts, such sale may be annulled and rescinded. Whether or not the defendant warranted the automobile to be a new one, he certainly, by his conduct in delivering to the plaintiff an automobile repainted and worked over to resemble a new one and which deceived him, represented the automobile which he sold as being new. This was a false representation of an existing fact; and, if it was material and induced the plaintiff to accept something entirely different from that which he had contracted for, it clearly was a fraud which, upon its discovery and a tender of the property back to the seller, entitled the plaintiff to rescind the trade and recover the purchase-money. See, in this connection, Silvey v. Tift, 123 Ga. 804 (51 S. E. 748, 1 L. R. A. (N. S.) 386; Hoyle v. Southern Saw Works, 105 Ga. 123 (31 S. E. 387); Cohen v. Lasky, 102 Ga. 846 (30 S. E. 531); East Tennessee &c. Ry. Co. v. Hayes, 83 Ga. 558, 560 (10 S. E. 350).

Where the plaintiff contracts to buy one thing and the vendor delivers to him a thing entirely different, there is no contract of sale as respects' the property actually delivered, and therefore no passing of the title to such property. In Varley v. Whipp (1900), 1 Q. B. 513, “the plaintiff agreed to sell and the defendant to buy a reaping machine, which the defendant had never seen, and which the plaintiff stated to have been new the previous year, and to have been used to cut only fifty or sixty acres. The machine was delivered and shortly afterwards the defendant wrote complaining that it did not correspond with the plaintiff’s statements. After some further correspondence the defendant returned the machine. In an action to recover the price: Held, that there was a contract for the sale of goods by description, within the meaning of the Sale of Goods Act, 1893, s. 13, and therefore, by that section, there was an implied condition that the goods should correspond with the description, that there had been no acceptance of the machine by the defendant, within the meaning of s. 35, that the property had not passed to the defendant, within the meaning of s. 17, and the plaintiff was not entitled to recover.” Channell, J., in the opinion, said: “The case turns on a fine point, namely, whether the words used by the seller with regard to the machine were part of the description, or merely amounted to a collateral warranty. If the property in the machine passed prior to July 2 [the date upon which the buyer undertook to rescind the sale], nothing that the buyer could do afterwards would divest it. The question is, did the property pass? The machine which was to be sold had never been seen by the buyer, and it was not the property of the seller at the time. It was described as being at Upton, as being a self-binder, as being nearly new, and as having been used to cut only about fifty or sixty acres. Ail these-statements were made with regard to the machine, and we have to consider how much of these statements was identification of the machine, and how much was mere collateral warranty. . . Then when did the property pass? Not when the machine was put on the railway, for the vendor could not make the property pass by putting on the railway that which did not fulfil the implied condition. The earliest’ date therefore at .which the property could be said to pass would be when the machine was accepted by the purchaser. But it never was accepted.” While the sale in that case was one by description under the “Sale of Goods Act,” we think the principle there laid down is applicable to the case now under consideration. In Cushman Motor Works of Canada v. Laing, 49 D. L. R. (1919) 1, it was held: “It being a condition of the sale that a threshing engine shall be a 25 h.p. engine, the purchaser is entitled to have the contract rescinded and the deposit returned to him upon the admission of the vendor, in an action brought by him to recover the balance of the purchase price, that the machine was in fact a 22 h.p. standard machine, although the purchaser has retained and used the machine through two seasons upon the vendor’s continued assurance that he would put it in good working order, if the purchaser did not know until the trial that the machine was not in fact a 25 h.p. machine such as he had contracted to purchase.” See also 33 Harvard Law Review, 602, note; 16 Id. 465 et seq.

The trial Judge erred in granting a nonsuit, and properly overruled the defendant’s general demurrer to the petition.

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

Smith, J., concurs. Jenkins, P. J., concurs specially.

Jenkins, P. J.

While I concur in the Judgment arrived at in this case, the reasons which control such a conclusion do not appear to altogether coincide with the views expressed by the majority members of the court, especially in the first division of the syllabus. In many jurisdictions even an executed contract of purchase and sale may be rescinded on account of a mere breach of warranty. See Williston on Sales, § 608. But the law of this State as embodied in § 4136 of the Civil Code provides that "a breach of warranty, express or implied, does not annul the sale if executed, but gives the purchaser a right to damages. It may be pleaded in abatement of the purchase-money. If the sale be executory, it is a good reason for the purchaser to refuse to accept possession of the goods.” Thus, it has been held both by the Supreme Court and by this court that, in the absence of such fraud as would vitiate the contract, the mere breach of a warranty, expressed or implied, will not authorize a rescission of an executed contract, but leaves the purchaser to his remedy for damages. Clarke v. Neufville, 46 Ga. 261; Woodruff v. Graddy, 91 Ga. 333 (17 S. E. 264, 44 Am. St. Rep. 33); Pound v. Williams, 119 Ga. 904 (47 S. E. 218); Fudge v. Kelly, 4 Ga. App. 630 (62 S. E. 9). I cannot, therefore, concur in the unqualified statement contained in the first division of the syllabus, that under a contract of sale where the property actually delivered is materially different from that contracted for, its acceptance by the buyer in ignorance of such material difference constitutes no sale, and no title passes.” The writer’s understanding of the law in such cases is, that, if the defects or discrepancies in the article tended are patent, such as might have been discovered by the exercise of ordinary care and prudence, then acceptance by the purchaser, in the absence of fraud, will operate as an absolute waiver on his part even of a claim for damages growing out of an implied warranty, but that such mere acceptance will not prevent Iris making a claim for damages arising out of an express warranty. But, no matter whether the warranty be express, as it is here, or whether it be only such as is ordinarily implied by law, in neither case, after delivery and valid acceptance has been made, and the contract has thus become executed, can it be rescinded and annulled merely because the goods do not come up to the specifications of the sale agreement. Cook v. Finch, 117 Ga. 541 (44 S. E. 95); Battle v. Livingston, 21 Ga. App. 809 (95 S. E. 314). Fraud will authorize such a procedure. Fraud on the part of the vendor, whereby the purchaser was deceived and misled either into making the contract itself or into accepting delivery thereunder, will authorize a rescission, but it is not my understanding that fraud can be proved, on will be inferred, merely by showing that “the property actually delivered is materially different from that contracted for.”

In the instant case the contract was not for the purchase of a particular car, but merely for a particular kind of car. The defendant obligated himself to furnish the plaintiff a new car of a certain make and designated model and at a specified price. The contract itself, thus complete in every essential detail, was not induced by any sort of fraudulent representation. No misstatement of. any existing fact induced the making of the contract. According to the plaintiff’s evidence it was upon the subsequent pretended fulfillment of the defendant’s obligation that fraud was practiced upon him. He is' really not seeking to rescind a contract fraudulent within itself, but has set up a fraudulent breach in its subsequent execution, whereby he, the buyer, was wrongfully deceived into an acceptance which, for this reason, he contends is invalid. While,, under the law, a mere breach of a contract executed by delivery and valid acceptance does not afford good ground for a rescission, still an acceptance which has itself been induced by fraudulent means and deceitful practices should not preclude his right to a rescission. In other words, in order for the acceptance to be binding, as such, upon the purchaser, it too must have been freely and voluntarily made, and must not have been brought about by the practice of fraud.

It is possible to go further than is required in this case, and say that an acceptance on the part of the purchaser is an altogether different thing from a tender on the part of the seller. It may often happen that the seller necessarily transfers physical possession of the goods from himself to the buyer in what amounts to nothing more than a tender. This I understand to be the theory upon which the cases of Cohen v. Lashy, 102 Ga. 846 (30 S. E. 531), and Armsby Co. v. Shewmake, 113 Ga. 1086 (39 S. E. 473), were decided. In the first case the goods were shipped C. O. D., and were immediately rejected upon opportunity to inspect. In the latter case it is expressly stated that no acceptance had been made. But if upon such a tender the seller, with opportunity to inspect, as in this case, accepts the goods, as was done here, even though they contain latent defects of which he was entirely ignorant, he thereupon loses all right to rescind and recover back the purchase-money,’ as such, but must rely solely upon his claim for damages under the express terms of the contract, unless it be that fraud has been practiced upon him either in the making of the contract as to an existing fact, or in the execution of the contract, whereby he was wrongfully and fraudulently induced to make the acceptance. In other words, where the contract is untainted with fraud, and where once the goods are fairly accepted by the purchaser, as in fulfilment of the sale agreement, no amount of ignorance on his part that the article was in fact materially different from that contracted for would authorize him to go behind the executed contract, but he is limited to such rights as he may have to an enforcement of the contract itself. In this case, the discrepancy complained of relates to words in the contract descriptive of the quality or variety of the subject-matter of the sale, and, as such, they must be taken as warranties. Miller v. Moore, 83 Ga. 684 (70 S. E. 360, 6 L. R. A. 374, 20 Am. St. Rep. 629); Americus Gro. Co. v. Brackett, 119 Ga. 489 (46 S. E. 657); Henderson Elevator Co. v. North Georgia Milling Co., 126 Ga. 279 (55 S. E. 50). Presumptively the contract is an executed one, since an executed contract is one in which the object of the contract is performed, as where each does what each assumes to do, and nothing remains for either to do. Civil Code (1910), § 4217; Adams v. Barrett, 5 Ga. 415. Thus, the contract in this case being one for the purchase and sale of a described kind and character of automobile, and the purchase-price thereof being fixed, and the purchaser, through his agent, having subsequently paid the purchase-price and apparently accepted delivery of the car upon actual inspection, or full opportunity to do so, the original contract of sale would seem prima facie to have become completely executed (Butler v. Lawshe, 74 Ga. 352). Especially is this true where, as in this case, full rights of ownership, use, and control were exercised and retained by the purchaser for several weeks after such acceptance. The fatal defect in the defendant’s case, as now presented, lies in the fact that, according to the plaintiff’s evidence, the acceptance, while 'apparently made with full opportunity to inspect, may have been, in fact, not so, because of the alleged artful means and deceitful practices perpetrated by the defendant at the time of the delivery, whereby the plaintiff was fraudulently misled and deceived into unknowingly receiving and accepting a car which he had a right to reject, and which we may assume, had he not been fraudulently deprived of a fair opportunity to inspect, would have been rejected. The seller should not be permitted to stand upon the execution of a contract by taking advantage of an apparent acceptance which the buyer repudiates and which he contends was fraudulently procured by artful means and deceitful practices. Since the case was determined on nonsuit, and must be considered entirely in the light of the plaintiffs evidence, I concur- in the 'judgment of reversal, for the reason indicated.


author: Smith, J.

text:
    10772.
    Stringer v. Atlanta Box Factory.
   Smith, J.

1. It is the settled law of this State that a servant who is over 14 years of age is presumptively chargeable with the same degree of diligence for his own safety as an adult engaged in the same work. Muscogee Mfg. Co. v. Butts, 21 Ga. App. 558 (94 S. E. 821); Young v. Stewart Lumber Co., 17 Ga. App. 410 (87 S. E. 149) ; Central Railroad Co. v. Phillips, 91 Ga. 526 (17 S. E. 952) ; Rhodes v. Railroad Co., 84 Ga. 322 (10 S. E. 922, 20 Am. St. Rep. 362).

2. A servant is not obligated to obey the direct command of his master, however peremptory, to work at and with a defective machine, when the obvious dangers incident to such work are well known to him; and if in such a case the servant is injured by obeying the command, he will be held to have failed to exercise due care — the care of an ordinarily prudent man — for his own safety, and cannot hold the master liable. See International Cotton Mills v. Webb, 22 Ga. App. 309 (3) (96 S. E. 16) ; Niblett v. LaGrange Mills, 18 Ga. App. 173 (1) (88 S. E. 1009), and citations; Simmons v. Southern Railway Co., 19 Ga. App. 524 (01 S. E. 917); Hightower v. Southern Ry. Co., 146 Ga. 279 (91 S. E. 52) ; Cowart v. Southern Marble Co., 144 Ga. 254 (87 S. E. 282).

3. The plaintiff’s petition shows that he was 16-1/2 years old, and was employed by the defendant to operate an electric printing machine, and that for approximately 60 days before receiving the injuries for which he sues he successfully operated the machine, which was equipped with two iron plates, one containing the type and the other the paper to be printed. His duties required him to place the paper on the plates while they were closing together. Attached to this machine was originally what is known as a throw-off ”■ lever, by which the machine could be quickly stopped and the plates prevented from coming together, but this lever had been broken off, and without such a lever there was no way for the operator to stop the machine in order to adjust the paper, which could not always be placed in proper position, and he was often compelled to grab ” the paper with his right hand, so as to place it in proper position. The hazards incident to the operation of this defective machine were well known to both the servant and the master, for the former complained of its condition, and the latter, through its vice-principal, assured the servant that there was no danger, and commanded him to continue to operate the machine in its broken and unsafe condition, which he did until his hand was caught and mashed between the plates. Held, that these facts bring the plaintiff’s petition within the principles announced above, and the trial judge therefore did not err in dismissing it on general demurrer.

Decided May 12, 1920.

Rehearing denied June 14, 1920.

(Certiorari was granted by the Supreme Court.)

Action for damages; from Fulton superior court — Judge Pendleton. July 1, 1919.

Walter C. Dillon, C. M. Lancaster, for plaintiff.

Rosser, Slaton, Phillips & Hopkins, for defendant.

4. The petition having been properly dismissed on demurrer, there was no abuse of discretion on the part of the court in refusing to vacate the judgment of dismissal and allow the plaintiff, after sucli dismissal of the ease, to attempt to cure the defects in the original petition by adding thereto by amendment what could and should have been originally alleged. Bowen v. Wyeth, 119 Ga. 687 (46 S. E. 823); Southern Ry. Co. v. Empire Printing Co., 120 Ga. 43 (47 S. E. 542) ; Van Dyke v. Van Dyke, 120 Ga. 984, 987 (48 S. E. 380). Moreover, even if the amendment had been allowed, the petition would still have been subject to general demurrer.

Judgment affirmed.

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


text:
    10856.
    Rustin v. Norman, administrator.
    Decided May 12, 1920.
    Complaint; from Tattnall superior court — Judge Sheppard. July 10, 1919.
   Stephens, J.

Where it was agreed that the plaintiff should perform certain services for the defendant for which the defendant agreed “to pay and to satisfy” the plaintiff, in a suit upon the contract the plaintiff is entitled to recover the reasonable value of the services actually rendered by him and accepted by the defendant. See, in this connection, Civil Code (1910), § 5513. A petition which alleges such a contract and the performance by the plaintiff and the acceptance by the defendant of such services sets out a cause of action, and is not subject to the objection, on demurrer, that it seeks to recover upon a quantum merit when the existence of a special contract is shown.

Judgment reversed.

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

This suit was against an administrator. The petition alleged: that the decedent “contracted and promised to pay petitioner and to satisfy her” if she would take the decedent’s infant child and support and care for it during its minority; that the petitioner “contracted and agreed to take the said infant child and support it, care for it, and raise it the best she could,” and that on a named date the decedent delivered the child to her “under the terms of the said contract,” and she accepted the child “under the terms of the contract as above set forth, no price being stated or agreed on to be paid to petitioner except as above stated;” that she supported and cared for the child from the date of the alleged contract until the decedent’s death, and that the said services were “reasonably worth the sum of $12.00 per month,” or the total sum of $978, for which sum, and an additional sum of $180, expended for clothes for the child, judgment was prayed. The court sustained a general demurrer and dismissed the petition.

W. T. Burkhalter, for plaintiff in error.

A. S. Way, for defendant.


author: Stephens, J,

text:
    10990.
    Roberts v. Bank of LaGrange.
   Stephens, J,

1. Where a debtor deposits with a bank cotton receipts as collateral security for a loan, and the bank, after being authorized by the debtor to sell the cotton for a certain amount, sells it for a less amount before the maturity of the loan, and, instead of crediting the proceeds of the sale against the loan, credits the same against an unsecured overdraft of the debtor, and deposits the balance in the bank to the debtor’s credit; and where the debtor, upon a rendition to him by the bank of a statement of the transaction, protests against it, and leaves the balance thus deposited to his credit untouched, and never withdraws it or any part thereof, a renewal of the loan thereafter, without more, will not as a matter of law amount to a ratification of the sale of the cotton. The debtor’s claim for the value of the cotton not being a defense to the note, but being rather in the nature of a set-off or counterclaim, the ruling here made is distinguishable from the cases of American Car Co. v. Atlanta Street Ry. Co., 100 Ga. 254 (28 S. E. 40); Atlanta Consolidated Bottling Co. v. Hutchinson, 109 Ga. 550 (35 S. E. 124), and Hogan v. Brown, 112 Ga. 662 (37 S. E. 880), in which it zwas held that whore a debtor renews a note with knowledge of a defense thereto, he cannot plead such defense and defeat a recovery in a suit on a renewal note.

Decided May 12, 1920.

Complaint; from city court of LaGrange-—B. J. Mayer, judge pro hac vice. September 8, 1919.

A. H. Thompson, for plaintiff in error.

Hatton Lovejoy, contra.

2. In a suit by the bank on the renewal note, where the defendant pleaded a set-off for the value of the cotton, upon it appearing from the evidence that the defendant did not authorize or ratify the sale of the cotton by the bank, he would be entitled to recover for the cotton at the value at which he authorized the bank to sell. It was therefore error to direct a verdict for the plaintiff for the amount of the note sued on.

Judgment reversed.

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


text:
    11063.
    Duke v. Cason.
    Decided May 12, 1920.
    Trover; from city court of Polk county — Judge Tison. October 16, 1919.
    Duke, the plaintiff, testified: that the oral sale agreement was finally arrived at in his storeroom, and that Cason, the defendant, called upon certain persons then present (witnesses in the case) to witness the statement of its terms as made by the plaintiff. “ I told them I sold Mr. Cason everything I. had there, with some stuff I had reserved, and went ahead and called over what I had reserved there in the store, some garden tools, some hogs and cow and canned syrup — four or live gallons, I forget which now. So I called over what stuff there was in the store, and I don’t know how long we stood around there, but just a little bit,— I don’t suppose it was more than three, four, or five minutes,— and I stepped outside of the store, had started up to the house. ' I got out of the store and happened to look around, and I had two bales of cotton in the gin-house that I didn’t sell, and I just spoke back to them, ‘You see my cotton; that don’t go in the trade.’ T saw it tickled them, wanted to laugh about it.” . . Question: “You had closed the trade and stated it over to these witnesses, and had received your fifty dollars and had started to dinner before you mentioned the cotton?” Answer: “No, I accepted the fifty dollars first, then went to write the receipt for fifty dollars, and he said it was no use, call the trade over to these two witnesses, and I told them, well, everything was sold to Mr. Cason except what I had reserved; in a few minutes started out of the store, started to the house and happened to see the cotton, and says, ‘ Here, the cotton don’t go in.’ I don’t know whether I had put the fifty dollars in my pocket or not, I had received it. I don’t recollect whether I had given Mr. Cason the key before I went to the house; I don’t remember, but I gave him the key. I don’t remember whether it was after I came back from the house or when I went out of the store I left Mr. Cason in charge.” Question: “After you closed the trade and excepted the things that I have mentioned, and you included the syrup, then afterwards you hollered back that you didn’t sell the cotton ? ” Answer: “ Yes, sir, had received the money before I made 'any reservations at all.” Question: “This statement about the cotton was after you had received the money and you had stated the terms of the trade in the presence of Mr. Pittman and Mr. Austin ? ” Answer: “ Yes, sir, and made three other reservations. The cotton was the last thing reserved. I started to the house after the trade was closed.” On redirect examination: “I had not at that time delivered possession of the property, the store and things. Ollie had been in the store all day and had the key.”
   Jenkins, P. J.

1. “ A nonsuit should not be awarded, even though evidence be introduced in behalf of the plaintiff which is vague and contradictory, if a recovery for any amount, no matter how small, may be authorized by any reasonable inference which may be drawn by the jury from any of the testimony.” Pendleton v. Atlantic Lumber Co., 3 Ga. App. 714 (1) (60 S. E. 377). This being a controversy over whether two bales of cotton and some syrup for which the plaintiff was suing in trover were included in a sale by him of his farming and store business to the defendant, and the evidence of the plaintiff himself being plainly to the effect that the item of syrup was specifically excepted at the time the trade was consummated, it was error to grant a nonsuit. Moreover, measuring the strength of the plaintiff’s ease solely in the light of his own testimony, it would have been possible for the jury to believe that the cotton also was excepted prior to the full statement of and final agreement upon the terms of the contract.

2. The court did not err in excluding from evidence, as a part of the res gestas, the statement of items of property sold and pointed out to the defendant,” the evidence disclosing that the defendant had never read the same, and that the contract as finally made was arrived at independently of such memorandum. . -

Judgment reversed.

Stephens and Smith, JJ., concur.

Mundy & Watkins, for plaintiff.

John K. Davis, for defendant.


text:
    11140.
    Hewlett, executor, v. Almand et al.

    Decided May 12, 1920.
    Complaint; from Rockdale superior court — Judge Hutcheson. November 24, 1919.
    Application for certiorari was denied by the Supreme Court.

      Winfield

      Payne Jones, J. R. Irwin, for plaintiff in error.

      J. H. McCalla, Edgar Watkins, Richard B. Russell, contra.
   Jenkins, P. J.

1. An existing contract is superseded and discharged whenever the parties subsequently enter upon a valid and inconsistent agreement completely covering the subject-matter embraced by the original contract. American Sewer Pipe Co. v. Mathews, 19 Ga. App. 248 (3) (91 S. E. 284) ; Housekeeper Pub. Co. v. Swift, 97 Fed. 290 (38 C. C. A. 187).

2. Such a -subsequent agreement, amounting to a substitution of the former contract, may be collected from several different contemporaneous writings which when taken together constitute a new and complete agreement. 13 C. J. 304, § 126 (4). Thus, where parties enter into an antenuptial marriage contract whereby the wife, in consideration of marriage, is to receive, at the death of the husband, the sum of $12,000, and a prescribed income from the said sum during the husband’s life, and where prior to the date of the marriage a similar contract is signed whereby the wife is to receive the named sum of $10,000, but, contemporaneously with the execution of the latter agreement, receives from the intended husband a promissory note for $2,000, the second contract and the contemporaneous note can properly be taken as together superseding and discharging the original agreement, although neither of the two latter instruments refers to the other. The note, being- alleged to have been given in part extinguishment of the former marriage contract, is not without consideration; and, although the second contract may on its face appear to be complete within itself, the rule that prevents a complete and certain contract in writing from being varied by parol evidence, except in cases of fraud, accident, or mistake, does not have application where the additional obligation was for a valid consideration contemporaneously entered upon in writing. The court did not err in overruling the general demurrer to the petition.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    11154.
    Tice v. Central of Georgia Railway Co.
   Jenkins, P. J.

1. (a) Ordinarily the only duty which a railway company owes to a- trespasser upon or about its property is not to injure him wantonly or wilfully after his presence has been discovered. Ashworth v. Southern Ry. Co., 116 Ga. 635 (43 S. E. 36, 59 L. R. A. 592). But failure to exercise ordinary care to prevent the injury to a trespasser after his presence has become known may amount to wantonness. Charleston &c. Ry. Co. v. Johnson, 1 Ga. App. 441 (57 S. E. 1064) ; L. & N. Railroad Co. v. Plunkett, 6 Ga. App. 684 (65 S. E. 695).

ib) Generally the servants of a railway company are not bound to anticipate the presence of a trespasser upon or about its tracks, and the duty of exercising such care and diligence does not in sueh ease arise until the presence of the trespasser becomes known. Southern Ry. Co. v. Chatman, 124 Ga. 1026 (53 S. E. 692, 6 L. R. A. (N. S.) 283, 4 Ann. Cas. 675) ; Nashville &c. Ry. Co. v. Priest, 117 Ga. 767 (45 S. E. 35).

(c) The mere fact that the public may have been accustomed to travel on foot along a certain portion of the right of way belonging to a railway company, and that no measures have been taken to prevent it, does not of itself operate to constitute the persons so using the track licensees of the company; and, in the absence of the company’s permission for such use, such unauthorized custom does not change the relation of one so using the property of the railway company from that of a trespasser. Southern Ry. Co. v. Barfield, 112 Ga. 181, 184 (37 S. E. 386).

(d) Where, however, from the locality, circumstances, and known habits of the public generally, there is reason to apprehend that the track in front of the locomotive may not be clear of human beings, then the duty of anticipating the presence of and danger to such trespassers devolves upon the employees of the company operating the train; and upon the discovery of a person in such peril, ordinary and reasonable care and diligence must be exercised by the company not to injure him. Southern Ry. Co. v. Chatman, supra.

(e) Whether or not the locality, the time, and the circumstances of an injury to one using the right of way, and the known habits and frequency of the public in using it, create such a condition as will charge the servants of the company operating the locomotive and cars with the special duty of looking out for the presence of a trespasser at the time and place of the injury is generally a question for the jury to determine, in the light of all the evidence introduced. Crawford, v. Southern Ry. Co., 106 Ga. 870 (33 S. E. 826) ; Wright v. Southern Ry. Co., 139 Ga. 448 (77 S. E. 384). See also Gulf Line Railway Co. v. Way, 137 Ga. 109, 110 (72 S. E. 917).

if) Where an action is brought for the homicide of a trespasser, shown to have been occasioned by the operation of defendant’s ears, the presumption of negligence does not arise against the defendant, unless it appears that at the time of the injury there was due from the company to the person injured a degree of diligence to prevent such injury. Holland v. Sparks, 92 Ga. 753 (18 S. E. 990). But where it appears from the circumstances of the case that such diligence did devolve upon the company, and that it did owe a duty to anticipate the presence of the trespasser at the time and place of the injury, then, upon proof of the homicide by the company, sueh presumption of negligence against it does arise. Crawford v. Southern Ry. Co., supra. See Pope v. Seaboard Air-Line Ry., 21 Ga. App. 251, 252 (94 S. E. 311).

2. (a) But oven in a case where from the evidence the jury would be authorized to believe that a special duty existed of anticipating the presence of a trespasser at the time and place of the injury, still it is the general rule that the company is authorized to act on the presumption that such a person apparently of full age and capacity, who is standing or walking along or near a track, will leave it in time to save himself.

(i) If, however, in a case where the presence of the trespasser is or ought to be known, there should also be apparent some fact or circumstance reasonably indicating that the person so exposed is incapacitated to protect himself from the impending danger, or so off his guard as should lead the railway company to reasonably infer that he must fail to do so, then, despite the contributory negligence of the trespasser, a special duty devolves upon the company to exert itself to avoid the injury. Cen. R. v. Brinson, 70 Ga. 207; Ga. R. v. Williams, 74 Ga. 723, 736; Western & Atlantic R. Co. v. Bailey, 105 Ga. 100, 102 (31 S. E. 517).

(c) Whether the facts alleged and proved were sufficient to reasonably indicate to the company that the trespasser, was so engrossed or inea■pacitated at the time and place of the injury as ought to have led the company to infer that he would be unable to protect himself from danger, and thus imposed upon it such a special duty, is generally a question for the jury.

(d) In a case where the jury is authorized to believe both that the presence of the trespasser was or ought to have been known to the company, and that such circumstances existed and were then and there manifest, sufficient to reasonably indicate to the company that the tres- • passer was so engrossed or incapacitated as would prevent him from protecting himself, the failure of the company to take reasonable precaution to prevent the injury would authorize "the jury to hold it liable, not for the reason that the company may itself have been then and there guilty of general negligence in the manner of operating its train (Smith v. Cen. R. Co., 82 Ca. 801, 10 S. E. 111), but on the theory that under such circumstances the failure on the part of the company to exercise ordinary care in the performance of its special duty owing to such a trespasser amounts to wilful and wanton negligence.

(e) While under the law of the code it is the general rule that a person . cannot recover, despite the negligence of the railway company, if by the exercise of ordinary care on his own part the consequences of the company’s negligence could have been avoided, still this rule docs not have application where the negligence on the part of the company is adjudged to have been wanton and wilful. Cen. R. &c. Co. v. Denson, 84 Ga. 774 (11 S. E. 1039) ; Rome R. Co. v. Barnett, 89 Ga. 718 (15 S. E. 639) ; Atlanta &c. Air-Line Ry. Co. v. Gravitt, 93 Ga. 369; Central R. &c. Co. v. Newman, 94 Ga. 560 (2) (21 S. E. 219); Cen of Ga. Ry. Co. v. Moore, 5 Ga. App. 502 (2) (63 S. E. 642) ; So. Ry. Co. v. Wiley, 9 Ga. App. 249, 251 (71 S. E. 11) ; Cen. of Ga. Ry. Co. v. Pelfry, 11 Ga. App. 119 (74 S. E. 854).

3. Under the allegations and proof in this case, this court does not feel authorized to hold, as a matter of law, that the company was not under a special duty of anticipating the presence of a trespasser at the time and place of the injury, there being evidence in support of the allegation that the public generally were accustomed to walk,along this portion of the right of way; nor does this court feel authorized to say, as a matter of law, that the plaintiff’s allegation and proof, to the effect that the deceased trespasser was manifestly engaged in reading a letter ■just prior to and at the time he was struck, was not such a circumstance as should have indicated to the company that he was so off his guard as to need and require the giving by the company of some sort of warning as a protection in his behalf. According to the plaintiff’s evidence the defendant company, under the circumstances indicated, failed in what the jury might have been authorized to consider its special duty, by failing to give any sort of warning signal to the imperiled trespasser, although the company was then and there operating its train on a down grade with the steam cut off, within the corporate limits of a city, and in a manner which was in point of fact negligence, because of its failure to ring the bell and its exceeding the speed limit provided by ordinance. The judgment granting a nonsuit is therefore

Decided May 12, 1920.

Action for damages; from Pike superior court — Judge Searcy. October 6, 1919.

Isaac S. Peebles Jr., C. Vernon Elliolt, for plaintiff.

Redding & Lester, Cleveland & Goodrich, for defendant.

Reversed.

Stephens and Smith, JJ., concur.


text:
    11162.
    Saggus v. Standard.
    Decided May 12, 1920.
    Distraint; from city court of Washington — Judge Wynne. November 25, 1919. •

      Colley & Colley, for plaintiff in error.

      C. E. Sutton, contra.
   Jenkins, P. J.

While a defendant in a distress warrant proceeding may, without showing actual fraud, set up a claim arising from an alleged shortage in acreage, where he relies upon an alleged express warranty guaranteeing a specified acreage under the terms of the particular rent contract under which the distress warrant issued, still the rule is that a claim merely by way of set-off cannot be pleaded as against rent, and consequently another claim, seeking to recover an alleged overpayment made under a previous similar but independent contract, cannot be joined in such a defense. McMahan v. Tyson, 23 Ga. 43; Johnston v. Patterson, 86 Ga. 725 (13 S. E. 17).

Judgment affirmed.

Stephens and Smith, JJ., concur.


author: Stephens, J. Smith, J.,

text:
    11271.
    Cannon v. Atlanta Warehouse Company.
    Decided May 12, 1920.
    Rehearing denied May 21, 1920.
    Complaint; from Fulton superior court'—Judge Bell. November 17, 1919.
    Application for certiorari was denied by the Supreme Court.
    By agreement of counsel this case was tried by the judge without a jury upon the following agreed statement of facts: “ On February 12, 1918, the plaintiff, trading under the trade name of Alma Cotton Company, had on storage with the defendant, the Atlanta Warehouse Company, in Atlanta, Georgia, 152 bales of cotton, which had been shipped from Alma by petitioner to defendant, to hold as warehouse cotton for the petitioner’s account and subject to his further orders, the warehouse company acting as agent and for a commission. On February 12th, 1918, the plaintiff sent to the defendant the following telegram: ‘ Sell Cannon & Company and Alma Cotton Company cotton for best basis obtainable.’ (Signed) E. B. Cannon. In reply to that telegram the defendant telegraphed the plaintiff as follows: ‘No market to-day. Will sell cotton best advantage to-morrow.’ (Signed) Atlanta Warehouse Company. The defendant also on February 12, 1918, wrote the plaintiff as follows: ‘Wé have your telegram to-day to sell cotton of Cannon & Company and Alma Cotton Company at best price obtainable, to which we replied there was no market, on account of legal holiday, and that we would sell to the best advantage to-morrow.’ On February 13 the defendant was offered for the cotton stored with it 30-5/8 cents per pound f.o.b. Atlanta, which was the prevailing market price in Atlanta on that day and the best price it was offered for said cotton. Thereupon, on said February 13, the defendant wired the plaintiff as follows: ‘We are offered 30-5/8 per pound for 126 bales Cannon Cotton Company, and same price for 152 bales Alma Cotton Company f.o.b. Atlanta, subject re-weight and subject immediate reply.’ This telegram was sent ‘collect,’ and was delivered to the plaintiff on the same day, but the telegraph company, in delivering it, made an error and substituted the word ‘f.o.b. Alma’ for the word ‘f.o.'b. Atlanta,’ as it had read in the original filed with the telegraph company. Upon receiving the telegram with the error in it, Cannon wired the defendant as follows: ‘Your wire offering 30-5/8 278 bales f.o.b. Alma, accepted.’ The defendant on the same day wrote a letter to the plaintiff as follows: ‘We wired you this morning offering 30-5/8 cents round for 126 bales of cotton of Cannon Cotton Company, and the same price for 152 bales of the Alma Cotton Company f. o. b. Atlanta, and now await your reply.’ This last letter was received by Cannon on February 14, after he had sent the reply telegram of February 13. The cotton was sold by the defendant at the basis indicated in its telegram, f.o.b. Atlanta, on February 13, and on February 14 the defendant prepared a sale confirmation showing the weights of the cotton and showing that it was sold at 30-5/8 cents f.o.b. Atlanta warehouse, Und these were mailed to plaintiff, and remittance was made to plaintiff of the amount due him on the basis of the sale f.o.b. Atlanta. Tire difference between the price f.o.b. Atlanta, at which the cotton was sold, and the price f.o.b. Alma, was $306.71, and the plaintiff has sued for the same as shown by his declaration.” “ It was further agreed upon the stipulation, signed by both parties, that the court, without the intervention of a jury, should pass on all issues of law and fact with the right of either party to except in the usual manner.”
   Stephens, J.

1. Where a warehouseman, who has cotton on storage for the purpose of selling it for the owner, communicates to the owner an oiler which the warehouseman has received from a prospective buyer to buy the cotton, and the owner accepts the offer and authorizes the warehouseman to make the sale, there arises a contract between the owner and the warehouseman authorizing the warehouseman to sell the cotton upon the terms of the offer, and a sale by the warehouseman at a less price constitutes a breach of this contract, and the warehouseman is liable to the owner for the difference.

2. Where such a warehouseman was authorized by the owner by telegraph to sell the cotton “ for best basis obtainable,” and the warehouseman replied by telegraph that there was no market that day, but that he would “sell cotton best advantage to-morrow,” but on the morrow, without acting upon such instruction, the warehouseman communicated to the owner, “ subject to immediate reply,” a special offer which he had received for the sale of the cotton, the warehouseman thereby waived the right, if he had any, to sell the cotton under the authority which he had received the day before. Moreover, the instruction from the owner to the warehouseman to sell the cotton “ for best basis obtainable,” being by telegraph and containing authority to sell a commodity which, as is well known, fluctuates from day to day and from hour to hour, is to be construed as authority for an immediate sale only, and not for a sale upon the day following.

3. Where the warehouseman communicates with the owner by telegraph and informs the latter of an offer which the warehouseman has received for the cotton, “ f. o. b. Atlanta,” and the owner replies that the offer is accepted “'f.o.b., Alma,” the warehouseman has authority to sell the cotton “f. o. b. Alma,” and not “f. o. b. Atlanta,” and where he sells the cotton “ f. o. b. Atlanta,” which is at a lesser price than “ f.o.b. Alma,” the owner may sue for a breach of contract to recover the difference. This is true notwithstanding the fact that the telegraph company, in transmitting the telegram from the warehouseman to the owner, erroneously caused it to read “f.o.b. Alma” and the owner understood that he was accepting in its entirety the offer communicated to him by the warehouseman.

Judgment reversed.

Jenkins, P. J., concurs. Smith, J., dissents.

The court rendered judgment in favor of the defendant, and the plaintiff excepted, assigning error on the ground that the pleádings and the evidence demanded a verdict for the plaintiff, and that the judgment is against the weight of the evidence and contrary to law and the principles of justice and equity.

Branch & Howard, Bond Almand, for plaintiff.

Candler, Thomson & Hirsch, for defendant.

Smith, J.,

dissenting. I cannot agree with the majority opinion of the court. The defendant was simply the agent of the plaintiff, and the physical possession of the cotton was that of the agent at Atlanta, Georgia, and not at Alma, Georgia. The principal adopted the telegraph company as the means of communication between himself and his agent, the defendant, and this action authorized the agent to constitute the telegraph company as a subagent for the purpose of communication between the principal and agent. The agreed statement of facts shows that the telegram sent by the defendant company to the plaintiff contained the words “f.o.b. Atlanta,” and that by mistake the telegraph company transmitted the message “f.o.b. Alma.” The mistake was the mistake of the telegraph company. The failure of the defendant to note that the reply telegram read “ f.o.b. Alma ” was a palpable and patent error, and I cannot say that the agent, who was simply a warehouse company, should be made to suffer for this innocent mistake. The cotton was sold not to the agent, but by the agent to third persons, for the best obtainable price f.o.b. Atlanta. If any right of action existed in behalf of the plaintiff against any one for this mistake in the telegram, it was against the telegraph company and not against the plaintiff’s agent in Atlanta. See Morris v. Warlick. 118 Ga. 421 (1) (45 S. E. 407), and Dodd Grocery Co. v. Postal Telegraph Co., 112 Ga. 685 (37 S. E. 981).

Another reason why I cannot concur with the majority opinion is that the petition itself in paragraph 7 alleges that the defendant became indebted to the plaintiff for said cotton at the rate of thirty and five eighths cents per pound f.o.b. Alma, Georgia. The defendant being the agent of the plaintiff, a fair inference from this allegation wotild be that the cotton had been sold by the defendant at that price f.o.b. Alma, and that the defendant had failed to account to him for a part of the purchase-price actually received for the cotton. This is more clearly set out in the 8th paragraph of the petition, in which the plaintiff alleges that the cotton weighed 69,383 pounds, and at the price f.o.b. Alma, would have amounted to $21,248.54, but that the defendant had accounted to him for only $20,807.51, leaving a balance due of $441.03, which balance the plaintiff claimed, together with lawful interest. If the defendant in fact had sold the plaintiff's cotton for the larger sum and had failed to account for the difference, this conduct would have amounted to a conversion, and the suit would have been for a tort. The agreed statement of facts does not sustain the petition as to the amount of money received by the defendant for the cotton, nor does it show that it was sold f.o.b. Alma. I am therefore constrained to the conclusion that as a matter of law the mistake in the telegram was so patent (the plaintiff knowing that the cotton was stored in Atlanta) that the defendant was not liable to the plaintiff, for this reason, as well as for the other reasons above given.


text:
    11364.
    White v. Steed.
   Smith, J.

1. In a statutory proceeding by a landlord against a tenant, under sections 3348 and 3366 of the Civil Code (1910), to recover for advances for the making of the crop, where the only defense set out in the counter-affidavit filed by the tenant was a denial of any indebtedness to the landlord, evidence in the nature of a set-off, consisting of several items of indebtedness by the landlord to the tenant, none of them growing out of the contract of rental, was properly excluded by the court.

Decided May 12, 1920.

Foreclosure of lien; from city court of Carrollton — Judge Beall. January 26, 1920.

Application for certiorari was denied by the Supreme Court.

Boykin & Boykin, for plaintiff in error.

Smith & Smith, E. T. Steed, contra.

2. There was ample evidence to sustain the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    11376.
    Lewis et al. v. Dickenson.
   Smith, J.

1. There is no implied warranty, where there is a sale of personal property under an express warranty. Civil Code (1910), § 4135; Johnson v. Latimer, 71 Ga. 470; Malsby v. Young, 104 Ga. 205 (30 S. E. 854) ; Elgin Jewelry Co. v. Estes, 122 Ga. 809 (50 S. E. 939) ; Brooks Lumber Co. v. Case Threshing Machine Co., 136 Ga. 754 (72 S. E. 40).

2. Thus, where in a sale of machinery there is an express warranty that it will do good work, is well made, of good material, and durable when used with proper care, and by the terms of the warranty liability of the seller is predicated upon conditions which must be performed by the purchaser before liability upon the part of the seller is to attach, such as if upon one day’s trial the machine fails to work, then the buyer shall immediately give written notice to the seller, informing him wherein the machine fails, and allow reasonable time for a competent man to be sent to put it in good order and render necessary and friendly assistance to operate it, the seller will not be held liable on the warranty unless the buyer complies with such conditions.

3. The burden being upon the defendant to show that he had complied with the conditions of the warranty, and the evidence failing to show such compliance, the court did not err in directing a verdict for the plaintiff. International Harvester Co. v. Dillon, 126 Ga. 672 (55 S. E. 1034).

4. Evidence that the plaintiff came to the defendant’s house and told him to roll the machine under the shod, that the company was making new parts for it, and, if it did not give satisfaction then, that it would take the machine back, did not estop the plaintiff from setting up the • defendant’s waiver of liability by failing to comply with the conditions set out in the warranty. See Walker v. Malsby Co., 134 Ga. 399 (1 a) (67 S. E. 1039).

5. The trial judge did not abuse his discretion in refusing to reopen the case after both sides had closed.

6. This suit being one against the maker and accommodation indorser of several promissory notes, and there being a general verdict returned in favor of the plaintiff, and judgment entered only as to the maker, and both defendants having made a motion for a new trial, and both of them having brought the case to this court for review, the motion to dismiss the bill of exceptions as to the indorser is denied.

Decided May 12, 1920.

Complaint; from city court of Miller county'—Judge Geer. February 14, 1920.

N. L. Stapleton, for plaintiff in error.

P. D. Rich, contra.

Judgment affirmed.

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


text:
    11382.
    Drew v. Drew, administratrix.
    Decided May 12, 1920.
    Rehearing denied May 12, 1920.
    Complaint; from city court of Waynesboro — Judge Davis. January 28, 1920.

      E. V. Heath, for plaintiff in error.

      BHnson & Hatcher, contra.
   Smith, J.

1. “A debt of a testator or intestate is not a proper set-off .against a debt contracted with the representative of tlie estate. But it is otherwise if both were contracted during the lifetime of the decedent.” Civil Code (1910), § 4345.

(a) Applying the provisions of this code-section to the facts in this case, the court did not err in striking the answer of the defendant and the amendment thereto. An inspection of the pleadings in the case will show that no peculiar equity intervened in favor of the defendant which would take the case out of these provisions.

2. In view of the admission of indebtedness made in the answer, the court did not err in entering up judgment without further proof in favor of the plaintiff; but, it appearing to this court that by inadvertence the judgment was entered for more than the amount admitted by the defendant to be due the plaintiff, the judgment of the court below is affirmed with direction that the amount of $34.56 be written off from the judgment. It is further ordered that the cost of bringing the case to this court be taxed against the plaintiff in error.

3. Under the above rulings an oral contract between the attorney at law for the administrator and a creditor of the estate, that the amount of any purchase of property of the estate made by the creditor could be offset by the indebtedness due him, would not be binding upon the estate, especially where the plea of set-off alleged that the estate was amply solvent.

Judgment affirmed, with direction.

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


text:
    11385.
    Savannah Warehouse & Compress Co. v. Hayes.
    Decided May 12, 1920.
    Action for damages; from Chatham superior court — Judge Meldrim. February 19, 1920.
    The petition, as amended alleges, in substance: The plaintiff was employed by the defendant as a brickmason and was engaged in laying a hollow-tile sewer in a ditch on the defendant’s premises. The ditch about 5 feet wide at the top, 3% feet wide at the bottom, and about 7 feet deep, and had been dug by the defendant under a cement pavement, and in excavating for the sewer the defendant did not remove the cement pavement, but left it overhanging the excavation. The cement pavement was about 5 feet wide and 5 inches thick, and the segment across the ditch weighed about 1,100 pounds, and this weight, together with the weight of persons passing over it and its improper sloping, tended to cause the earth at the top of the excavation to break off and fall in large lumps. It is alleged that ordinary care required that the defendant should have had the walls of the excavation shored at the point where it passed under the cement pavement. While the plaintiff was laying the sewer under the pavement a lump of earth about the size of “a wheelbarrow full, broke off at the top of the ditch,” and fell, striking him upon the neck and knocking him to the ground, with the result that' there developed “ progressive paralysis ” in his right side, beginning with his right arm and extending over his entire right side, causing, in addition to the inability to use his limbs, an impediment in his speech and an impairment of his eyesight. On approaching the cement pavement and before laying the sewer under it, the plaintiff called the attention of Mr. Culver, the defendant’s foreman and alter ego, to the condition of the walls of the excavation, and the foreman, after examining the pavement and the walls of the excavation, advised the plaintiff that it was safe, and ordered him to proceed with the work. It is alleged that the plaintiff was not “skilled in the weights of earth,” and did not know whether the earth overhanging the excavation would fall, but relied upon the skill and knowledge of the defendant, and the assurance that the earth would not fall; that he did not dig the ditch in which he was ordered to work, and did not know of the unsafe condition of the ditch at the point where the cement sidewalk crossed it, and “ did not have equal means of knowing and by the exercise of ordinary care could not have known of said defective condition of the sides of the ditch, and of the dangers incident to working at the point where he was injured,” but that the defendant knew or by the exercise of ordinary care could have known thereof. The petition charged the defendant with negligence in the following particulars: (a) in failing to furnish the plaintiff with a safe place to work; (5) in failing to have the sides of the ditch under the pavement properly sloped; (c) in failing to shore the walls of the excavation. The defendant demurred generally and specially, the court overruled the demurrers, and the defendant excepted.
   Smith, J.

1. “ A servant is bound to obey a 'command, when given as such by the master, if it pertains to the duties of the servant’s employment and docs not involve a violation of the law, and if the act required is not one which is of itself so obviously dangerous that no person of ordinary prudence could be expected to perform it.” Hodges v. Murkison, 24 Ga. App. 739 (102 S. E. 134), and cases cited. See also Usry v. Augusta Southern R. Co., 24 Ga. App. 722 (102 S. E. 184).

2. Testing the petition in this case by the foregoing ruling, a cause of action was set out, as the facts alleged raised for determination by the jury the questions as to whether the order as given to the plaintiff by the alter ego of the defendant was a negligent one, and whether the act required under the assurance given -was one which of itself was so obviously dangerous that no person of ordinary prudence could be expected to perform it. The court, therefore, propei’ly overruled the general demurrer; and such of the special grounds of the demurrer as were meritorious were met by appropriate amendments.

Judgment affirmed.

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

O’Byrne, Hartridge & Wright, for plaintiff in error.

Osborne, Lawrence & Abrahams, contra.


text:
    11389.
    Barnard v. Glisson.
    Decided May 12, 1920.
   Smith, J.

Copies of the proceedings in the magistrate’s court being necessary to a proper understanding and determination of the errors complained of in the petition for certiorari, and they nowhere appearing in the record, and no exception having been taken to the magistrate’s answer, the trial judge, on motion of defendant in certiorari; properly dismissed the certiorari. See Georgia Southern & Florida Railway Co. v. State, 116 Ga. 845 (43 S. E. 254).

Judgment affirmed.

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

Certiorari; from Tattnall superior court — Judge Sheppard. February 2, 1920.

Elders & DeLoach, for plaintiff in error.

Way & McCall, contra.


text:
    11410.
    CONSOLIDATED MERCANTILE CO. v. FALLS CITY CLOTHING CO.
    Decided May 12, 1920.
    An unauthorized surrender of a promissory note to its maker does not relieve him from liability to pay it.
    The notes sued on in this ease, which were produced by the defendant in response to notice from the plaintiff, were properly admitted as evidence for the plaintiff, over the objection that they were not in the plaintiff’s possession or control when the suit was brought or at the time of the trial.
    It was not ground for a new trial that the plaintiff’s attorney was allowed to testify that a prior suit against the defendant on an open account (for which the notes sued on in this case were given) was withdrawn by him because the defendant’s manager had testified by deposition that the defendant owed the notes and not the open account.
    It was not error to direct a verdict for the plaintiff.
    Rehearing denied September 17, 1920.
    Complaint; from Irwin superior court — Judge Eve. February 3, 1920.
    Application, for certiorari was denied by the Supreme Court.

      H. E. Oxford, Quincey & Rice, for plaintiff in error.

      Rogers & Rogers, contra.
   Smith, J.

The plaintiff sued upon four promissory notes, seeking to recover principal, interest, and attorney’s fees. The defendant filed an answer, denying any indebtedness upon the notes sued upon, but alleging that if it were indebted to the plaintiff in any amount it was upon an open account. The answer admitted that the notes sued upon had been given in satisfaction of the open account, but the defendant alleged that a prior suit had been filed upon the open account, and that, the plaintiff then being in possession of the notes, the defendant pleaded to the first suit that the notes had been given for the open account; and that thereafter the plaintiff had returned to the defendant and surrendered to it the notes, and later had dismissed or withdrawn the suit upon the open account. Upon the trial of the case the uncontradicted evidence showed the indebtedness, and that the four notes had been given for the indebtedness, but that the attorney for the plaintiff had returned the notes to the defendant. The original notes sued upon not being in the possession of the plaintiff at the time suit was filed, they were produced in response to regular and legal notice served upon the defendant by the plaintiff, and then introduced in evidence. H. L. Eogers, attorney for the plaintiff, testified that he had no authority to return the notes, and that he had done so by mistake. The notes were not indorsed by the plaintiff. Plaintiff’s attorney testified, over objection of defendant’s counsel, that T. L. Purvis, manager of the defendant company, had testified by depositions that the defendant owed the notes and not the open account, and that it was upon this statement or evidence of the witness Purvis that he withdrew the suit on the account and sued on the notes. There was no dispute as to the service of the notice 'claiming attorney’s fees. T. L. Purvis testified for the defendant company that he was manager, secretary, and treasurer of the defendant company; that he was president and manager in 1915, and had been active manager since the business was organized; and that the account first sued upon had been closed up with the company’s notes,— the notes sued on in this ease. He also testified that “ one other note had been given which had been paid,” and that when the four notes sued upon had been delivered to him he considered that they were given in satisfaction of the debt. He further testified that “the debt has never been paid except by the notes which they returned to us. . . We got the goods and were satisfied when we closed up the account with the notes. I guess all we owed them on the former hearing was on these notes. . . If we owe Fall City Clothing Company anything now, it is represented by those notes. All that we owed them was settled by notes.” Held:

1. The court did not err in admitting over objection of defendant’s counsel the original four notes sued upon.

2. The court did not err in admitting the evidence of the witness Eogers complained of in the 2d ground of the amendment to the motion for a new trial.

3. “An unauthorized surrender of a note to its maker does not relieve him from liability to pay it.” Crawford v. Moore, 28 Fed. 824 (6).

4. The evidence demanded a verdict for the plaintiff, and the court did not err in so directing.

Judgment affirmed.

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


text:
    11414.
    GEORGIA BOX & MANUFACTURING COMPANY v. SOUTHERN BOTTLERS SERVICE COMPANY.
    Decided May 12, 1920.
    1. The exclusive-agency contract set up in the defendant’s plea was too vague and indefinite to.bo enforced at law; and the damages claimed were too remote and speculative to be recovered.
    2. The plea of fraud in the procurement of the note sued on was insufficient.
    Complaint; from city court of Floyd county—-Judge Nunnally. February 9, 1920.

      Willingham & Covington, for plaintiff in error.

      Denny & Wright, contra.
   Smith, J.

1. The plaintiff sued upon a promissory note. The petition contained the usual allegations, claiming principal, interest, and attorney’s fees. The defendant filed an answer and two amendments thereto, raising substantially only two issues: First, that prior to the giving of the note sued upon the plaintiff and the defendant entered into a' certain contract whereby the plaintiff contracted and agreed with the defendant that it would sell for the defendant from time to time throughout the year ending in May, 1919, its product, a wooden case or container manufactured by the defendant for the purpose of holding and containing soft drinks in bottles, and that the 'plaintiff further agreed that it would not sell for any other manufacturer similar articles, but would sell the defendant’s said product only. The defendant further alleged that plaintiff did sell its said product up to about February, 1919, and then ceased to sell the same. The defendant admitted that on the date the note sued upon was given it was indebted to the plaintiff in the sum of $661.60 as commissions on prior sales; that part of the same was paid in cash and the note sued upon was given for the balance; that soon after this the plaintiff notified the defendant that it would no longer represent the defendant and no longer offer its said product for sale. The defendant insisted that the plaintiff go on with the sale of its product. The defendant further alleged that it had manufactured something like 30,000 of said cases or containers, with the expectation that the plaintiff would take and sell the same as it had agreed to do, but that the plaintiff refused and failed to sell any more of its product, and sold cases or containers similar to those manufactured by defendant and used for the same purpose, to the extent of at least 10,000 cases. The defendant was to pay the plaintiff a certain commission on all sales made by the plaintiff. The defendant further alleged, that it was forced to sell 10,000 of its cases or containers at a loss of $480.90, this sum being the difference between the price it would have realized from the sale of the said 10,000 cases if the plaintiff had not breached its contract and the price at which defendant was forced to sell the same; that the total price which the defendant would have realized from the sale of the said 10,000 cases, had the plaintiff not breached the contract, would have been $2,980.90, but that it was forced to sell said cases for $2,500, the best price it was able to obtain after waiting weeks on the plaintiff to discharge its obligations under the contract; and that these cases were sold only after the plaintiff had notified the defendant that it would not carry out its contract with the defendant. The defendant further alleged that the contract was an oral one, and that it agreed that it would not sell its product to any other agent or agency during the life of the contract. Held, that the contract set up in this plea was too vague and indefinite to be enforced at law, and that the damages claimed were too remote and speculative to be recovered even if the contract was a binding contract. See Georgia Cane Products Co. v. Corn Products Refining Co., 141 Ga. 40 (80 S. E. 318); Prior v. Hilton & Dodge Lumber Co., 141 Ga. 117 (80 S. E. 559).

2. The defendant filed a further plea, which in substance alleged that there was legal fraud on the part of the plaintiff in the procurement of the note sued upon, because the plaintiff had already breached its contract before the note was given, and this fact was unknown to the defendant. Held, that this plea did not set up a legal defense of fraud in the procurement of the note. See Georgia Railroad Co. v. Kent, 92 Ga. 782, 785 (19 S. E. 720).

3. Under the above rulings the court did not err in striking the answer and the amendments thereto, and in thereafter directing a verdict for the plaintiff.

Judgment affirmed.

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


text:
    11415.
    RAPE v. BARKER.
    Decided May 12, 1920.
    1. Whether or not the owner of an automobile is liable for damage caused by it which results from the negligence of the person operating it depends upon whether the person driving it was the agent or servant of the owner and engaged upon the business of the owner at the time the negligence occurred. If he was such agent or servant and engaged upon such business, the owner is responsible for injuries to persons or property caused by his negligence in operating the automobile. Aliter, if he was not such agent or servant and was not engaged upon such business.

      (a) Thus, the owner of an automobile is not liable for injuries inflicted by his brother-in-law, in negligently operating the machine, where it appears that at the time of the injuries the brother-in-law was not using the car as the agent or servant of the owner nor engaged upon business of the owner.
    2. The trial judge therefore did not err in granting a nonsuit.
    Action for damages; from Dooly superior court — Judge Gower. February 6, 1920.

      R. Douglas Feagin, W. H. Lasseter, tor plaintiff.

      Powell & Lumsden, Crum & Jones, for defendant. .
   Smith, J.

O. E. Rape sued B. B. Barker, seeking to recover damages for personal injuries, alleged to have been the result of a collision, at a road-crossing, between an automobile owned by the defendant but at the time of the collision driven by the defendant’s brother-in-law, and another automobile driven by himself. There was no attack on the petition. A nonsuit was granted.

It is not disputed that the defendant was the owner of the car which was driven by his brother-in-law at the time of the collision with the plaintiff’s car. Neither is it disputed that there might have been proof legally sufficient to make a jury question as to whether or not the defendant’s car was operated negligently. However, conceding it to be a fact that the car was the property of the defendant, and might have been negligently driven by his brother-in-law, the defendant would still not be liable, unless the brother-in-law, in driving the car, was the agent or servant of the defendant and engaged in the performance of the defendant’s business. “The owner, or keeper, of an automobile will not be held liable for a negligent homicide committed therewith in a public street by a person old enough to be discreet and responsible in the eyes of the law, who took the machine, without the knowledge of the former.” Lewis v. Amorous, 3 Ga. App. 50 (3) (59 S. E. 338). The ruling in that case was followed in the case of McIntire v. Hartfelder-Garbutt Co., 9 Ga. App. 327( 71 S. E. 492), where it was held that “ the owner of an automobile usually is not liable for injuries inflicted by one who at the time is driving it without his consent.” See also Griffin v. Russell, 144 Ga. 275, 281 (87 S. E. 10, L. R. A. 1916F, 46 Ann. Cas. 1917D, 994), and Dougherty v. Woodward, 21 Ga. App. 427 (1) (94 S. E. 936). The evidence in the case under review shows: that the defendant was a conductor on the Georgia, Southern & Florida Eailroad, running to and from Macon, Georgia; that he was a resident of TJnadilla, Georgia, and that he was the owner of the car driven by his brother-in-law at the time of the collision, which occurred on the way from TJnadilla to Macon; that lie frequently used the car in going from Macon to his home after completing his run, but that on the day of the collision he was not expecting his car to meet him in Macon, as his brother-in-lav/ had told him that he “ needn’t have your [the defendant’s] car sent to Macon Monday. I have got to go up to have some work done on mine, and I will meet you at the depot and bring you back; ” that he had no knowledge whatever that his brother-in-law was going to use his (the defendant’s) car, and was utterly surprised when he discovered that it was his car that his brother-in-law had used, and not the latter’s. This evidence is, we think, legally insufficient to show that there existed between the defendant and his brother-in-law the relation of master and servant, principal and agent, employer ancl employee, or anjr other relation whereby the defendant could be held responsible for the acts of the brother-in-law.

Nor do we think that the defendant’s statements a day or so after the collision that “he wanted to know if he could do anything,” and that “ if his car was to blame he would like to pay the damages,” amount to 'a ratification of the tort or to an acknowledgment of his “liability therefor. It does not appear that the defendant was charged with liability for the injury and failed to deny it, or that he offered his assistance to the plaintiff in a spirit of compromise; but his statements seem to have been made only in a spirit of benevolence, and without any admission of legal liability.

For these reasons we are constrained to hold that the court did not err in awarding a nonsuit.

Judgment affirmed.

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